Texts, Lies & Red Tape:
The EC's (Failed) Crusade for Secrecy
pposition from campaigners defending freedom of information may have managed to prevent European Commission (EC) attempts to further restrict public access to EU documents. The EC had hoped to rollback the scope of the existing rules, which, despite many loopholes still, are an important democratic tool. CEO, for example, makes use of this public right to information to gain access to key documents and information which exposes the links between industry and EC. 
To counter strong public criticism of the European Union being secretive, the right of access to information was included in the 1991 Maastricht Treaty. This resulted in the various EU institutions developing rules by which citizens can apply for access to documents.  In practice these rules have, however, proven to be no guarantee of transparency. Statewatch, a UK-based group monitoring civil liberties in the EU, took seven cases to the European Ombudsman after the European Council had rejected access to documents, and won six of them. Heidi Hautala, Finnish member of the European Parliament, had to go to the European Court of Justice to force the Council to give her access to sensitive documents on nuclear issues.
A review of the existing rules is scheduled in the 1997 Amsterdam Treaty, which describes itself as "a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen."  The European Commission was given the mandate to make a proposal for new rules which are to be approved before May 2000 (two years after the treaty entered into force). However, rather than removing the loopholes in the current rules, the EC drew up a proposal that would seriously restrict access to documents.
It is normal practice that a discussion paper is circulated for public consultation before the process of drafting new regulations start, but ironically the discussion paper on access to information (drafted by officials from the three institutions -- Commission, Parliament and Council of Ministers) was not made public by the Commission. Statewatch obtained a leaked copy in April 1999 and revealed a very restrictive proposal which "would set the clock back and reimpose the secrecy of the pre-Maastricht days." 
The proposal would practically have forbidden public access to internal documents relevant for ongoing policy discussions.  The text also suggested to create a more 'flexible system', which would have limited the right to appeal rejections. After having faced heavy critique, also from the European Parliament, the proposal, was withdrawn in June 1999.
The Commission continued its remarkable authoritarian approach and did not write a new discussion paper, but instead released a draft regulation, excluding civil society from any input in the process. The draft legislation paid lip service to transparency, but included even more restrictions to the right of access which had been in the discussion paper. Working papers, for instance, were only to be released after the legislation is approved. Reproduction of any documents released would be forbidden. Moreover, the proposal suggested that Member States would have to apply the same principles and limitations. It would, in other words, force national governments to become as closed as EU institutions.
A new wave of critique forced the Commission to rewrite the proposed legislation. On January 26th, the Commission approved a final version which expands the right to access to cover not only documents produced by the three institutions, but also documents by third parties which are in the possession of the EU institutions.  The new rules will apply only for documents received by the institutions after the new legislation is in place and a further limitation is that those who produced the document can ask for confidentiality. If for instance CEO would apply for the documents given to the EC by a corporate lobby group, one can expect that these groupings will request confidentiality.
The draft approved by the Commission restricts the current rules for access to information by substantially narrowing the definition of "documents". For instance, it excludes documents reflecting free and frank discussions or advice as part of internal consultations or deliberations as well as informal messages. This is a bottomless bag which can be used to refuse many requests for access to documents. The Commission argues that it needs the "space to think" to formulate policy before it enters the public domain. Policy made in the glare of publicity "is often poor policy," the EC argues. Moreover, the proposal substantially increases the number of "exceptions", cases in which requests can be refused. 
The proposal now has to be approved by the European Parliament and the Council, which have the right to amend the text. Public pressure might result in improvements, but the EC proposal is a very weak basis for realising the lofty promises of the Amsterdam Treaty.
1. As reported in previous issues of the Corporate Europe Observer (Issues 2 and 3), CEO has in the last two years been engaged in a systematic attempt to gain access to documents regarding the contacts between the Commission and corporate lobby groups. Despite the simple procedure described in the law, reality learns that one has to arm oneself with large doses of patience and perseverance to deal with rejections on weak grounds, long delays and/or complete silence. But after many appeals, we have succeeded in getting access to some revealing documents. It was through an Access to Information request that we learnt about the Investment Network (IN), the EC's process of consultation with industry on international investment issues (related to the proposed WTO Millennium Round) -- a 'dialogue' the EC failed to inform NGOs about. | Back to Text |
2. The Council's rules go back to 1993 (Council Decision 93/731/EC of 20 December 1993 on public access to Council documents), the Commission's to 1994 (Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents), whereas the European Parliament adopted its current rules in 1997 (European Parliament Decision on public access to Parliament documents of 10 July 1997). | Back to Text |
3. The quote is from article A of the Amsterdam Treaty. The review is outlined in article 255 of the Amsterdam Treaty. | Back to Text |
4. Tony Bunyan, Statewatch editor, quoted in press release 26 April 1999, "EU Plans to Undermine Citizens Right of Access to Documents". | Back to Text |
5. The draft proposed to exclude working documents intended as contributions to internal deliberations from the scope of the right of access. That would mean that minutes of meetings, briefings, reflection notes, mission reports, etc., would be excluded. It is precisely these documents which are usually the subject of the requests, not the official documents which are the end result of policy making. | Back to Text |
6. European Commission, proposal for a regulation of the European Parliament and of the Council regarding public access to documents of the European Parliament, the Council and the Commission, Explanatory Memorandum. | Back to Text |
7. Ibid. | Back to Text |