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European Union


Revised access rule to be kept in the freezer

Two men, two stories on the right to access

There will be no change of the present EU-rules on access to documents under the present Commission and Parliament. ”It's not on the priority list”, EU-commissioner Maroš Šefčovič has said.

Time is running short for the Barroso Commission whose five-year mandate terminates next year, and for the European Parliament, facing elections in May 2014.
March and at the latest April next year will thus be the last chances to pass new legislation until a new Parliament has been elected and a new Commissions has been appointed, and come into office.
This affects the proposed recast, also called revision of the present rules on access to documents (Regulation 1049/2001), a recast that has been in the making since 2008, without leading to a result.
Now the two institutions consider what can be dealt with before the bell tolls.
During a debate in Bruxelles on the occasion of Right to Know Day (29.9) commissioner Maroš Šefčovič was asked on the time perspective of a decision on new rules.
His answer came quite promptly:
»Right now we are really approaching the end (of the mandates) and have had very intensive talks between the institutions. This issue is not on the list of priorities for March and April,«he said.
A video of the seminar, arranged by the outgoing Ombudsman P. Nikiforos Diamandouros can be seen here. (The question to commissioner Šefčovič from yours truly starts at 2:05:00, followed by the commissioner’s answer.)

The Treaty rules?

The implications of a continuing stalemate are not crystal clear as different actors have different interpretations.
Formally all EU institutions besides the Commission, the Council, and the Parliament are to be covered by the same access rules. This follows from the Lisbon Treaty. (Article 15 in the Treaty of Functioning of the EU, although special exceptions shall apply for the Centralbank ECB and the investmentbank EIB.)
But as long as a recasted regulation is missing the treaty has not been fully implemented, the argument goes.
Another opinion is expressed by the Parliament’s legal service, arguing that the Treaty rules quite automatically as the primary source of EU-law, similar to a constitution.
In short: The same rules are applicable for all institutions regardless if there is a new regulation or not.
As for the effects on transparency in reality there are also differing opinions.

Roll back or clear defintions

A number of critics, notably the majority in the Parliament and several pro-transparent member states believe that the changes proposed by the Commission and favoured by a majority of member states would mean a roll back of access rights.
This is based on the proposal's narrowed definition of ”documents”, broader range of exceptions, stronger weight on the right to privacy as opposed to transparency, and extended time limits. Hence, better to stick to the present rules, inspite its shortcomings, than to accept changes for the worse. (For a guide to the fault lines see here, an example of the political criticism here, and a conclusion after the final breakdown in June 2012 here)
The Commission, denying any intention to weaken the present role argues it is in everybody’s interest to specify exceptions of access.
”We are not rolling back, we just want to make things clear. We want to open access too and we have to move forwards, commissioner Šefčovič said at the seminar.
P. Nikiforos Diamandouros, outgoing Ombudsman said in his introductory remark:
»I was involved in the reform of Regulation 1049/2001 on access to documents. This sadly appears to have been put on ice. I can only appeal to all parties involved that whatever compromise emerges, it should ensure that citizens enjoy more rather then fewer rights to access documents.«


Staffan Dahllöf


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