Saturday, 1 March 2008

EU TFEU: Openness, transparency and access to documents

It looks like a contradiction in terms: The intergovernmental conference, in secret, produces inaccessible amending treaties for the European Union, but meant to improve good governance, legislation in public, the participation of civil society, as well as openness and transparency.

The Council then refuses to publish readable, consolidated versions of the Lisbon Treaty, to further underline the chasm between principles and practices.

Whatever it is, I fear European leaders even when they bring gifts.

***

Let nobody deny the intergovernmental conference a keen sense of humour. In the Treaty of Lisbon (ToL) the IGC 2007 documented its determination to promote good governance, the participation of civil society, openness and transparency as follows (Official Journal 17.12.2007 C 306/49-50):

28) An Article 16 A shall be inserted, with the wording of Article 255; it shall be amended as
follows:

(a) paragraph 1 shall be preceded by the following text, paragraph 1 being renumbered 3 and paragraphs 2 and 3 becoming subparagraphs:

‘1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.

2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.’;

(b) in paragraph 1, renumbered 3, which shall become the first subparagraph of paragraph 3, a change shall be made to the French which does not concern the English version. The words ‘European Parliament, Council and Commission documents’ shall be replaced by ‘documents of the Union institutions, bodies, offices and agencies, whatever their medium’ and the words ‘paragraphs 2 and 3’ shall be replaced by the words ‘this paragraph’;

(c) in paragraph 2, which shall become the second subparagraph of paragraph 1, renumbered 3, the words ‘by means of regulations’ shall be inserted after ‘shall be determined by the Council’ and the words ‘within two years of the entry into force of the Treaty of Amsterdam’ shall be deleted;

(d) in paragraph 3, which shall become the third subparagraph of paragraph 1, renumbered 3, the words ‘referred to above shall elaborate’ shall be replaced by ‘shall ensure that its proceedings are transparent and shall elaborate’, the words ‘, in accordance with the regulations referred to in the second subparagraph’ shall be inserted at the end of the subparagraph and the following two new subparagraphs shall be added:

‘The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.

The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.’.

***

The amended Article is based on of the current Article 255 of the Treaty establishing the European Community (TEC), so the missing link is found in the latest consolidated version of the treaties in OJ 29.12.2006 C 321 E/156-157:

Article 255 TEC

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.

***

A few moments of happy tinkering are needed to open up the noble intentions of the IGC 2007, and to produce a consolidated version of the new Article 16a of the Treaty on the Functioning of the European Union (TFEU ToL). Under Part One Principles, Title II Provisions having general application, we should have the following new or amended provision, although it is extremely easy to miss a horizontal amendment or to make some other mistake:

Article 16a TFEU (ToL), after renumbering Article 15 TFEU

1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.

2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.

3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.

General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council by means of regulations, acting in accordance with the ordinary legislative procedure.

Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.

The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.

The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.

***

The European Convention, in Part I, Title VI The democratic life of the Union, proposed the following Article I-49 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):


Article 49 Draft Constitution
Transparency of the proceedings of Union Institutions

1. In order to promote good governance and ensure the participation of civil society, the Union Institutions, bodies and agencies shall conduct their work as openly as possible.

2. The European Parliament shall meet in public, as shall the Council of Ministers when examining and adopting a legislative proposal.

3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have a right of access to documents of the Union Institutions, bodies and agencies in whatever form they are produced, in accordance with the conditions laid down in Part III.
4. A European law shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.

5. Each Institution, body or agency referred to in paragraph 3 shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European law referred to in paragraph 4.

***

In addition, Article III-305 of the draft Constitution, under Part III The policies and functioning of the Union, Title VI The functioning of the Union, Section 4 Provisions common to Union institutions, bodies and agencies, is of interest (OJ 18.7.2003 C 169/85):

Article III-305 Draft Constitution

1. The Institutions, bodies and agencies of the Union shall recognise the importance of transparency in their work and shall, in application of Article I-49, lay down in their rules of procedure the specific provisions for public access to documents. The Court of Justice and the European Central Bank shall be subject to the provisions of Article I-49(3) when exercising their administrative tasks.

2. The European Parliament and the Council of Ministers shall ensure publication of the documents relating to the legislative procedures.

***

For easy comparison we take retrieve the main corresponding provisions of the Treaty establishing a Constitution for Europe. First, in Part I, Title VI The democratic life of the Union, Article I-50 (OJ 16.12.2004 C 310/35):

Article I-50 Constitution
Transparency of the proceedings of Union institutions, bodies, offices and agencies

1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.

2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.

3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have, under the conditions laid down in Part III, a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium.

European laws shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.

4. Each institution, body, office or agency shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European laws referred to in paragraph 3.

***

Second, we fetch Article III-399 of the Constitutional Treaty, in Part III The policies and functioning of the Union, Title VI The functioning of the Union, Chapter I Provisions governing the institutions, Section 4 Provisions common to the Union institutions, bodies, offices and agencies (OJ 16.12.2004 C 310/172):


Article III-399 Constitution

1. The institutions, bodies, offices and agencies of the Union shall ensure transparency in their work and shall, pursuant to Article I-50, determine in their rules of procedure specific provisions for public access to their documents. The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to the provisions of Article I-50(3) and to this Article only when exercising their administrative tasks.

2. The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the European law referred to in Article I-50(3).

***

Having served you the drafting history from the current TEC, through the draft Constitution and the Constitution, to the Lisbon Treaty, I leave it to you to compare the stages and to draw your own conclusions on how the principles of openness and transparency, including the right of access to documents, are going to advance according to the Lisbon Reform Treaty.

After all the self-congratulatory words by EU notables on the Lisbon Treaty, I prefer to ruminate on the vote this week of the European Parliament’s Committee on Budgetary Control (CONT) not to publish even a censored version of the internal audit report on a sample of MEPs’ expenses.


Ralf Grahn