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2014 02 15 * * Transparency in the EU : the distance between principles and Institution’s practices is widening up… * Emilio De Capitani

As clearly explained in the previous post (Henri Labayle study on Access to documents) Transparency and good administration have become a core element of the post-Lisbon Constitutional Framework (1) However, notwithstanding the recurrent rhetoric declarations and promises in these pre-electoral days by several political figures at European and national level, four years after the entry into force of the Treaty and of the Charter the situation is even worse than before.
It is then more than likely that the the best supporters of the Eurosceptic movements are in these days the EU institutions and the Member States which are still blocking the reform of the EU rules on access to documents and whose daily practices are often contrary to the Treaties, the legislation into force, the ECJ jurisprudence and probably their own internal rules

A dead end for the rules on access to documents (Regulation 1049/01) ?
The EU legislative framework on access to documents dates back to 2001 when Regulation 1049/01 was adopted. It was against the unwillingness of the Commission and of several Members States but it was a success because of a (temporary) strong political majority in the European Parliament, a skilled Swedish Council Presidency and clear support by the civil society. However in the following years notwithstanding a growing support by the European Court of Justice Jurisprudence the Council and Commission practice has tried to rebuild the previous opaque practices. Paradoxically the turning point has been after the groundbreaking “Turco” Case (C-39/05 P and C-52/05 P Sweden and Turco v Council and Commission, judgment of 1 July 2008) by which the Court considered that openness“contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights”(Sweden and Turco v Council, paragraph 46). In this perspective the Court of justice considered that it was also admissible to have access even to the Institution’s legal service opinions notably when dealing with the soundness of legislative works (2).
Needless to say the Member States considered this ruling as a blow to their daily practice in the Council working groups and with the support of the Council Secretariat invoked more and more often as an exception to the Citizen’s right of access to documents the need to protect the “efficiency of the decision making process”. Regrettably the Commission instead of supporting the minority of the “transparency minded” MS joined the majority of the Member States contrary to a wide interpretation of the access to documents principle and rejected the EP request for a more ambitious revision of Regulation 1049/01. The Bruxelles Executive has lastly been obliged to submit a new text in 2008 (after the signature of the Lisbon Treaty and following a formal EP request to submit a new legislative proposal). At the entry into force of the Lisbon Treaty the EP voted on December 15, 2011 its position on the 2008 proposal by taking in account not only the new Treaty Framework but also the ECJ jurisprudence going then much further than the original proposal of the Commission. The 
EP position was not supported by the Commission which considered that it was too ambitious to obtain a support by the Council. The argument was (and still is ) well founded because the main EU Countries (FR, DE, IT and even UK) are against this reform but the Commission could had modified at its 2008 proposal by integrating at least the ECJ jurisprudence (3). On the Commission side the main concern was that improved transparency could had curtailed the internal administrative procedures such as the ones dealing with competition cases. But this was more a problem of administrative procedures than a problem of transparency and it could had been easily solved by complementing the revision of Regulation 1049/01 with new EU rules framing the principle of good (open, independent, and efficient) administration (as envisaged by art. 298 TFEU and by the Charter). Again, the answer of the Commission to a new specific EP request to submit a “good administration” legislative proposal has been that it is …too early. With legislative works still blocked on the Council side it has now to be seen if the election of strong euro-sceptics group in the 2014 will not paradoxically reopen the game also on the Member States side..

In the meantime confidentiality is spreading in the EU institutions through informal dubious legal solutions ..
The main move of the Member States to avoid the obligations arising from the Turco Jurisprudence and now the Lisbon Treaty has been to build on the Council internal internal security rules a full fledged new legal regime for an ambiguous new category of EU documents: the EU Classified informations (EUCI).
These documents cover at the same time EU and MS documents classified according to the Nato Standards as “restricted”, “confidential”, “secret” and “top secret”.
In theory the principle to be followed when dealing with this kind of documents should be the ones of Regulation 1049/01 (art. 4 and 9) as well as of any future Regulation to be adopted on the basis of art. 15 TFEU and 41 of the EU Charter.
However to define these principles at legislative level will require the codecision with the EP and Member States prefer to avoid such a risk (even if there are more and more MEP which are abandonning the original pro-transparency attitude). So, to obtain the same practical result the Council has decided to transform its internal security rules in a general standards to be followed by any subject wanting to share with him the same kind of informations.
The Council “internal” security rules have then been mirrored in the Commission “internal” security rules, and the same happened with the EU Agencies and bodies and the Member States via administrative agreements.
Last but not least, also the European Parliament has accepted to follow the same standards and has concluded a simila interinstituional agreement with the Commissionand with the Council. By so doing it has also accepted even standards and obligations which are not founded on regulation 1049/01 (such as the generalization of the “originator principle”(4)”
A new general quasi-legislative framework has then been created by de facto restricting the Citizen’s fundamental right of access to EU public documents (inclear breach of art. 15.3 of the TFEU).

..and how better structure the internal work to avoid the citizen’s direct access to preparatory documents.

The Council has also jeopardized some of the practical measures established by Regulation 1049/01 to make easier the access to its internal documents. The main example is the Register of Council documents where notably all the legislative preparatory documents should be timely listed so that they can be obtained or directly downloaded.
The Councl register which was created even before Regulation 1049/01 is still working and is an excellent tool to monitor the Council activity.
However the “minor shortcoming ” is that not all the Council preparatory documents are registered : quite the contrary.
This is the case for some thousands “restricted” documents which are now excluded as they where “Top Secret” documents the existence of which should not be known.
Secondly the Council do not list in the register thousands of “Document the séance”(DS) which are deemed to be documents written during a meeting of a Council working group but which in reality are prepared weecks before and could be of hundred pages (such as the multicolumn documents where the position of the Commission, of the Parliament and of the Council are placed side by side to better understand the position of the legislative institutions.
Then there are the vast majority of preparatory documents which are listed in the register and which registered, deal with legislative procedures, but which are not directly accessible and are coded as “LIMITE”. This code means that the document is not “classified” but its diffusion is “limited” to some ten thousand people in the Commission or in the national Parliaments but, quite surprisingly not in the European Parliament.
Quite surprisingly the EP did’nt seriously contested this practice even if the access to this kind of information should be granted not only for the sake of transparency but even more for the principle of sincere cooperation between the EU institutions. Moreover as the codecision has become the (almost) general rule it would be quite logic that the two institutions on which the EU legitimacy is founded (art.10 TEU) share the same informations as it already happen since sixty years with the Commission.
The Secretary General of the Council is so attached to this kind of LIMITE document that in a recent (public) note of October 16 it has evoked the professional secrecy principle (which could not be considered a general exception) and it has denounced the fact that :
“There have also been a number of cases where such documents have been published by national Parliaments. Such documents are made available to Member States in their capacity as members of the Council. It is for each Member State to determine to whom, within its political and constitutional structures, it is necessary to provide access to document internal to Council in order to enable their representatives to carry out their functions as members of the Council. However in so doing Member States are responsible for ensuring that such documents are handled in accordance with the legal obligations arising under the Treaties and secondary legislation including the obligations of confidentiality.”
In other words according to the Council Secretariat documents which are mainly referring to EU legislative preparatory works and which according to the Treaties should be publicly debated in Parliament and in the Council should be treated only by the people which has a speific right to access. But if you collect all this kind of legal and practical limitations and exceptions is not the rule itself which is jeopardized and the democratic participation required by the Treaties and by the Charter whiich will be the victim ?
The irony is that the publication of this note the Court of justice adopted the “Access Info”ruling according to which and as a complement of the Turco case also the names of the national delegations participating to a legislative proceeding should be accessible to improve the democracy of the Institutions decision making process.

Last but not least : how to build a trafic jam with only three cars…
To have the final proof that the multi-billion EU institutional decision making machinery is growing anarchically you have to try to collect in the three legislative institutions all the preparatory documents linked with the same legislative procedure (let’s say the data protection reform) in a given time period.
First you should know who is the in charge of this issue (who in the EC general Directorates, who in the EP Committees, who in the Council working Groups) then you have to find the internal agenda, and find in the agenda if there are documents which can be linked with the subject of your search. When all these informations have been collected, analysed and connected you may have a general idea on the situation and the foresseable future of the issue or you can turn to one of the thousand lobbyst groups who have already done this work and which tell you what is deemed to happen.
This permanent trafic jam should be avoided because a legislative procedure is not an happening: the Treaty details each phase of the co-decision procedures and the three institutions should follow very strict internal rules to manage their internal workflow to make possible that the right persons receive the right documents in a given language for a given meeting.
It would then be an easy tasl thirteen years after the entry into force of Regulation 1049/01 to build a common legislative monitoring tool which will make easier such a search at the same time in the three institutions also because the vast majority of the legislative procedures (80%) are currently dealt in parallel within the so-called “firts reading agreements” during the Parliamentary phase.
In the Google era it would be a trivial issue to agree between the three instiutions common metadata and to rediffuse them to the external world following the standard that the EU itself has imposed to its member states with the Directive on the re-use of the public sector informations (PSI Directive). However this would be a too easy solution but it would require a dayly mutual cooperation which apparently is not the first priority. The paradox is that to cover this lack of cooperation the three institutions are increasing the firework of streamings, twitter messages and uncoordinated informations and standards on their activity by so creating further confusion and noise instead of giving the possibility to the ordinary citizen to obtain the information is entitled to receive on a given subject.
It is more than likely that this situation will continue also in the coming months and years so that it will be up to the Citizens themselves to do what the institutions do not want to do. It is already started with Parltrack an internet site which re-use the European Parliament internal informations. Let’s hope that the same could happen for the Council and that all the informations would be made available to the external world. However it is more and more evident that it is easier to change the treaties than the culture of EU burocrats and diplomats…..

1 See art. 1 and 11 TEU, 15 and 298 TFEU and art. 41 and 42 Charter
2 The point of the Court was that open debate on divergent point of view by contributing to the Citizen’s participation strengthen the democratic principle in the EU. Disclosure of a specific legal opinion may be refused only if this poses a real risk to the interest of the institution concerned in seeking and receiving frank, objective and comprehensive advice.
3 See Access Info Europe, T-233/09, In ‘t Veld, T-529/09, Toland, T-471/08, Kathleen Egan and Margaret Hackett, T-190/10, My Travel, C-506/08, IFAW, C-135/11 P, Germany v Commission case (T-59/09),
4 According to the “originator” principle the authorisation of the author is needed to declassify an information. However the EP constitutional prerogatives should be limited only by the law and not by the will of a person.