The Commission has published a report on public access to documents: Report from the Commission on the application in 2008 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (Brussels, 2.7.2009 COM(2009) 331 final).
The legislative process to amend Regulation 1409/2001 continues, so the report has a certain relevance to the discussions in the Council and the European Parliament. The report contains references to the cases handled by the European Ombudsman and decided by the Court of first instance. It contains a summary of reasons clarified by the Court of first instance.
A statistical annex concludes the 18 page report on a subject relevant to openness and transparency in the institutions of the European Union.
Ralf Grahn
Showing posts with label access to documents. Show all posts
Showing posts with label access to documents. Show all posts
Friday, 3 July 2009
Tuesday, 5 May 2009
European elections: Libertas and full disclosure?
Was Libertas’ Convention in Rome a successful exercise in internal democratic procedures and the adoption of a credible political platform ahead of the June 2009 European elections?
Some 29 days from the start of the European elections the policies web page of Libertas offers us the same promise as before:
“The Libertas programme for a better Europe will be published on this site in the coming weeks.”
***
Full disclosure?
Full disclosure: All EP & Commission expenses must be published, is the second core principle of Libertas.
A great sound bite, but what does it mean?
***
Expenses only?
Freedom of information and public scrutiny are wide and fundamental issues.
The material scope of Libertas’ call seems unduly restrictive. Expenses are but a minuscule although important part of EU documents important for accountability and openness.
Later today the European Parliament is going to give its final vote on the Cashman report, more exactly Regulation (EC) No .../2009 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast), based on the preliminary EP vote 11 March 2009 (resolution P6_TA-PROV(2009)0114).
Knowing that there are differences between the EU institutions, a responsible European level political party should have a clear policy on the access to documents as a whole, not only a detail.
In general terms, the European Parliament came out in favour of transparency. Amendment 85 on Article 13 offers the basic rule on financial transparency:
Article 13
Financial transparency
Information relating to the EU budget, its implementation and beneficiaries of EU funds and grants shall be public and accessible to citizens.
Such information shall also be accessible via a specific website and database, searchable on the basis of the above information, dealing with financial transparency in the EU.
***
It is true that a majority of the European Parliament voted for Amendment 116 to exempt documents of MEPs from the scope of the Regulation, as stated in point 23 of the Preamble. I assume that Libertas would have voted with the ALDE group against this exemption and will do so if the saga continues during the next parliamentary term:
(23) Article 4 of the Statute for Members of the European Parliament excludes the documents of Members of the European Parliament from the scope of the definition of "document" used in this Regulation. These documents, when transmitted to the institutions outside the legislative process, are still protected by Article 6 of the Members´ Statute. Therefore the interpretation of this Regulation should take due account of the protection of the political activities of Members of the European Parliament, as enshrined in the Members" Statute in order to protect the democratic principles of the European Union. [Am 116]
***
Institutions concerned?
I wonder why Libertas targets only the European Parliament and the Commission.
Why does Libertas’ slogan leave out the Council and the Agencies and bodies of the European Union, which the European Parliament wants to include in the Regulation on public access to documents?
***
Admittedly, billboard phrases cannot cover every detail, but they should be crafted considering the underlying facts and given more detailed explanations elsewhere.
The Golden rule tells us to apply the same standards to ourselves as we demand from others.
Constructive criticism should be countered, not by invective, but by improved action and reasoned discussion. We are waiting for Libertas to start showing positive signs.
Ralf Grahn
Some 29 days from the start of the European elections the policies web page of Libertas offers us the same promise as before:
“The Libertas programme for a better Europe will be published on this site in the coming weeks.”
***
Full disclosure?
Full disclosure: All EP & Commission expenses must be published, is the second core principle of Libertas.
A great sound bite, but what does it mean?
***
Expenses only?
Freedom of information and public scrutiny are wide and fundamental issues.
The material scope of Libertas’ call seems unduly restrictive. Expenses are but a minuscule although important part of EU documents important for accountability and openness.
Later today the European Parliament is going to give its final vote on the Cashman report, more exactly Regulation (EC) No .../2009 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast), based on the preliminary EP vote 11 March 2009 (resolution P6_TA-PROV(2009)0114).
Knowing that there are differences between the EU institutions, a responsible European level political party should have a clear policy on the access to documents as a whole, not only a detail.
In general terms, the European Parliament came out in favour of transparency. Amendment 85 on Article 13 offers the basic rule on financial transparency:
Article 13
Financial transparency
Information relating to the EU budget, its implementation and beneficiaries of EU funds and grants shall be public and accessible to citizens.
Such information shall also be accessible via a specific website and database, searchable on the basis of the above information, dealing with financial transparency in the EU.
***
It is true that a majority of the European Parliament voted for Amendment 116 to exempt documents of MEPs from the scope of the Regulation, as stated in point 23 of the Preamble. I assume that Libertas would have voted with the ALDE group against this exemption and will do so if the saga continues during the next parliamentary term:
(23) Article 4 of the Statute for Members of the European Parliament excludes the documents of Members of the European Parliament from the scope of the definition of "document" used in this Regulation. These documents, when transmitted to the institutions outside the legislative process, are still protected by Article 6 of the Members´ Statute. Therefore the interpretation of this Regulation should take due account of the protection of the political activities of Members of the European Parliament, as enshrined in the Members" Statute in order to protect the democratic principles of the European Union. [Am 116]
***
Institutions concerned?
I wonder why Libertas targets only the European Parliament and the Commission.
Why does Libertas’ slogan leave out the Council and the Agencies and bodies of the European Union, which the European Parliament wants to include in the Regulation on public access to documents?
***
Admittedly, billboard phrases cannot cover every detail, but they should be crafted considering the underlying facts and given more detailed explanations elsewhere.
The Golden rule tells us to apply the same standards to ourselves as we demand from others.
Constructive criticism should be countered, not by invective, but by improved action and reasoned discussion. We are waiting for Libertas to start showing positive signs.
Ralf Grahn
Sunday, 26 April 2009
EU: Special legislative procedure (VIII & detour)
A post in our series on the various functions of the Council of the European Union elicited comments by JL about the absence of a presentation of the procedural aspects of the special legislative procedure, where the latest posts had covered the ground concerning subject matter.
Let us turn to the Council’s Rules of Procedure to complement our series with procedural aspects of the Council’s legislative work.
These provisions are of general interest with regard to the character of Council work and principles such as openness, transparency and accountability.
***
Materials
The latest consolidated version of Council Decision 2006/683/EC, Euratom of 15 September 2006 adopting the Council's Rules of Procedure, originally published OJEU 16.10.2006 L 285/47, seems to be of 1 January 2009.
***
In a legislative capacity
Article 7 of the Council’s Rules of Procedure distinguishes the situations and sets the limits of the situations where the Council acts in a legislative capacity:
Article 7
Cases where the Council acts in its legislative capacity
The Council acts in its legislative capacity within the meaning of the second subparagraph of Article 207(3) of the EC Treaty when it adopts rules which are legally binding in or for the Member States, by means of regulations, directives, framework decisions or decisions, on the basis of the relevant provisions of the Treaties, with the exception of discussions leading to the adoption of internal measures, administrative or budgetary acts, acts concerning interinstitutional or international relations or non-binding acts (such as conclusions, recommendations or resolutions).
Where legislative proposals or initiatives are submitted to it the Council shall refrain from adopting acts which are not provided for by the Treaties, such as resolutions, conclusions or declarations other than those referred to in Article 9.
***
Open deliberations
Article 8 contains provision on discussions in public and their availability on the web.
When the co-decision procedure applies (future ordinary legislative procedure), the presentation and the opening debate on a proposed legislative act is open, as well as other Council deliberations, the closing debate and the vote.
Other important new legislative proposals are normally discussed in public, and they may be discussed publicly later. This includes proposals falling under the special legislative procedure.
Special public debates may be arranged on important issues.
The 18 montth programmer of the troika (or trio) and other policy programmes are debated in public.
Items set for public deliberation or public debate are marked on the agenda.
The public discussions are available on the web.
Article 8
Council deliberations open to the public and public debates
1. Council deliberations on legislative acts to be adopted in accordance with the codecision procedure under Article 251 of the EC Treaty shall be open to the public as follows:
(a) the presentation, if any, by the Commission of its legislative proposals and the ensuing deliberation in the Council shall be open to the public;
(b) the vote on such legislative acts shall be open to the public, as well as the final Council deliberations leading to that vote and the explanations of voting accompanying it;
(c) all other Council deliberations on such legislative acts shall be open to the public, unless, on a case by case basis, the Council or Coreper decides otherwise with regard to a given deliberation.
2. The Council's first deliberation on important new legislative proposals other than those to be adopted in accordance with the codecision procedure shall be open to the public. The Presidency shall identify which new legislative proposals are important and the Council or Coreper may decide otherwise, whenever appropriate. The Presidency may decide, on a case by case basis, that the subsequent Council deliberations on a particular legislative act shall be open to the public, unless the Council or Coreper decides otherwise.
3. On a decision taken by the Council or by Coreper, acting by a qualified majority, the Council shall hold public debates on important issues affecting the interests of the European Union and its citizens.
It shall be for the Presidency, any member of the Council, or the Commission to propose issues or specific subjects for such debates, taking into account the importance of the matter and its interest to citizens.
4. The General Affairs and External Relations Council convened in a meeting as referred to in Article 2(2)(a) shall hold a public policy debate on the Council's 18-month programme. Policy debates in other Council configurations on their priorities shall also be held in public. The Commission's presentation of its five-year programme, of its annual work programme and of its annual policy strategy, as well as the ensuing debate in the Council, shall be public.
5. As from the sending of the provisional agenda pursuant to Article 3:
(a) those items on the agenda of the Council which are open to the public in accordance with paragraphs 1 and 2 shall be marked with the words “public deliberation”;
(b) those items on the agenda of the Council which are open to the public in accordance with paragraphs 3 and 4 shall be marked with the words “public debate”.
The opening to the public of Council deliberations and public debates in accordance with this Article shall be made through public transmission by audiovisual means, notably in an overflow room and through broadcasting in all official languages of the institutions of the European Union using video-streaming. A recorded version shall remain available for at least one month on the Council's Internet site. The outcome of voting shall be indicated by visual means.
The General Secretariat shall as far as possible inform the public in advance of the dates and approximate time on which such audiovisual transmissions will take place and shall take all practical measures to ensure the proper implementation of this Article.
***
Public votes etc.
Legislative votes and explanations of votes as well as such minutes are made public.
The same principle applies with regard to common positions in relation to legislative acts in accordance with the codecision and the cooperation procedure and related Conciliation Committee proceedings, as well as statements concerning the establishment of a convention regarding police and judicial cooperation in criminal matters.
Various final votes are made public.
Article 9
Making public votes, explanations of votes and minutes
1. In addition to cases where Council deliberations are open to the public under Article 8(1), where the Council acts in its legislative capacity within the meaning of Article 7, the results of votes and explanations of votes by Council members, as well as the statements in the Council minutes and the items in those minutes relating to the adoption of legislative acts, shall be made public.
The same rule shall apply for:
(a) results of votes and explanations of votes, as well as the statements in the Council minutes and the items in those minutes relating to the adoption of a common position pursuant to Article 251 or Article 252 of the EC Treaty;
(b) results of votes and explanations of votes by members of the Council or their representatives on the Conciliation Committee set up by Article 251 of the EC Treaty, as well as the statements in the Council minutes and the items in those minutes relating to the Conciliation Committee meeting;
(c) results of votes and explanations of votes, as well as the statements in the Council minutes and the items in those minutes relating to the establishment by the Council of a convention on the basis of Title VI of the EU Treaty.
2. Moreover, the results of votes shall be made public:
(a) when the Council acts pursuant to Title V of the EU Treaty, by a unanimous Council or Coreper decision taken at the request of one of their members;
(b) when the Council adopts a common position within the meaning of Title VI of the EU Treaty, by a unanimous Council or Coreper decision taken at the request of one of their members;
(c) in other cases, by Council or Coreper decision taken at the request of one of their members.
When the result of a vote in the Council is made public in accordance with points (a), (b) and (c) of the first subparagraph, the explanations of votes made when the vote was taken shall also be made public at the request of the Council members concerned, with due regard for these Rules of Procedure, legal certainty and the interests of the Council.
Statements entered in the Council minutes and items in those minutes relating to the adoption of the acts referred to in points (a), (b) and (c) of the first subparagraph shall be made public by Council or Coreper decision taken at the request of one of their members.
3. Except in cases where Council deliberations are open to the public in accordance with Article 8, votes shall not be made public in the case of discussions leading to indicative votes or the adoption of preparatory acts.
***
Public access to Council documents
Public access to documents is a cornerstone of accountability and transparency. Article 10 of the Council’s Rules of Procedure refers to Annex II, which is presented below. Documents from and positions of member states are a special concern.
(The main rules are found in Regulation (EC) No 1049/2001. The Commission’s proposal to repeal and replace the Regulation by a new Regulation regarding public access to European Parliament, Council and Commission documents; Brussels, 30.4.2008, COM(2008) 229 final 2008/0090 (COD), is a hotly discussed issue between the EU institutions and questioned by NGOs and experts, but that is another story).
Council’s Rules of Procedure:
Article 10
Public access to Council documents
The specific provisions regarding public access to Council documents are set out in Annex II.
***
Specific provisions
ANNEX II
SPECIFIC PROVISIONS REGARDING PUBLIC ACCESS TO COUNCIL DOCUMENTS
Article 1
Scope
Any natural or legal person shall have access to Council documents subject to the principles, conditions and limits laid down in Regulation (EC) No 1049/2001 and the specific provisions laid down in this Annex.
Article 2
Consultation as regards third-party documents
1. For the purpose of applying Article 4(5) and Article 9(3) of Regulation (EC) No 1049/2001 and unless it is clear, upon examination of the document in the light of Article 4(1), (2) and (3) of Regulation (EC) No 1049/2001, that it shall not be disclosed, the third party concerned shall be consulted if:
(a) the document is a sensitive document as defined in Article 9(1) of Regulation (EC) No 1049/2001;
(b) the document originates from a Member State and
was submitted to the Council before 3 December 2001; or
the Member State concerned requested that it not be disclosed without its prior agreement.
2. In all other cases, where the Council receives an application for a third-party document in its possession, the General Secretariat, for the purpose of applying Article 4(4) of Regulation (EC) No 1049/2001, shall consult the third party concerned unless it is clear, upon examination of the document in the light of Article 4(1), (2) and (3) of Regulation (EC) No 1049/2001, that it shall or shall not be disclosed.
3. The third party shall be consulted in writing (including by e-mail) and be given a reasonable time limit for its reply, taking into account the time limit laid down in Article 7 of Regulation (EC) No 1049/2001. In the cases referred to in paragraph 1, the third party shall be asked to give its opinion in writing.
4. Where the document does not fall within paragraph 1(a) or (b) and the General Secretariat, in the light of the third party's negative opinion, is not satisfied that Article 4(1) or (2) of Regulation (EC) No 1049/2001 is applicable, the Council shall be seized of the matter.
If the Council envisages the release of the document, the third party shall be informed immediately in writing of the Council's intention to release the document after a time period of at least 10 working days. At the same time, the third party's attention shall be drawn to Article 243 of the EC Treaty.
Article 3
Requests for consultation received from other institutions or from Member States
Requests for consultations with the Council made by another institution or a Member State concerning an application for a Council document shall be sent via e-mail to access@consilium.europa.eu or by fax to (32-2) 281 63 61.
The General Secretariat shall give its opinion on behalf of the Council promptly, taking into account any time limit required for a decision to be made by the institution or the Member State concerned, and at the latest within five working days.
Article 4
Documents originating from Member States
Any request by a Member State under Article 4(5) of Regulation (EC) No 1049/2001 shall be made in writing to the General Secretariat.
Article 5
Referral of requests by Member States
When a Member States refers to a request to the Council, it shall be handled in accordance with Articles 7 and 8 of Regulation (EC) No 1049/2001 and the relevant provisions of this Annex. In the event of a total or partial refusal of access, the applicant shall be informed that any confirmatory application must be addressed directly to the Council.
Article 6
Address for applications
Applications for access to a document shall be addressed in writing to the Secretary-General of the Council/High Representative, rue de la Loi/Wetstraat 175, B-1048 Brussels, by e-mail to access@consilium.europa.eu or by fax to (32-2) 281 63 61.
Article 7
Processing of initial applications
Subject to Article 9(2) and (3) of Regulation (EC) No 1049/2001, any application for access to a Council document shall be handled by the General Secretariat.
Article 8
Processing of confirmatory applications
Subject to Article 9(2) and (3) of Regulation (EC) No 1049/2001, any confirmatory application shall be decided upon by the Council.
Article 9
Charges
The charges for producing and sending copies of Council documents shall be set by the Secretary-General.
Article 10
Public register of Council documents
1. The General Secretariat shall be responsible for providing public access to the register of Council documents.
2. In addition to the references to documents, it shall be indicated in the register which documents drawn up after 1 July 2000 have already been released to the public. Subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (1) and Article 16 of Regulation (EC) No 1049/2001, their content shall be made available on the Internet.
Article 11
Documents directly accessible to the public
1. This Article shall apply to all Council documents, provided that they are not classified and without prejudice to the possibility of making a written application in accordance with Article 6 of Regulation (EC) No 1049/2001.
2. For the purpose of this Article:
— “circulation” shall mean distribution of the final version of a document to the members of the Council, their representatives or delegates,
— “legislative document” shall mean any document concerning the examination and adoption of a legislative act within the meaning of Article 7 of the Rules of Procedure.
3. The General Secretariat shall make the following documents available to the public as soon as they have been circulated:
(a) documents of which neither the Council nor a Member State is the author, which have been made public by their author or with his agreement;
(b) provisional agenda for meetings of the Council in its various configurations;
(c) any text adopted by the Council and intended to be published in the Official Journal.
4. Provided that they are clearly not covered by any of the exceptions laid down in Article 4 of Regulation (EC) No 1049/2001, the General Secretariat may also make the following documents available to the public as soon as they have been circulated:
(a) provisional agenda of committees and working parties;
(b) other documents, such as information notes, reports, progress reports and reports on the state of discussions in the Council or one of its preparatory bodies which do not reflect individual positions of delegations, excluding Legal Service opinions and contributions.
5. The General Secretariat shall make the following legislative documents available to the public, in addition to the documents referred to in paragraphs 3 and 4, as soon as they have been circulated:
(a) cover notes and copies of letters concerning legislative acts addressed to the Council by other institutions or bodies of the European Union or, subject to Article 4(5) of Regulation (EC) No 1049/2001, by a Member State;
(b) documents submitted to the Council which are listed under an item on its agenda marked with the words “public deliberation” or “public debate” in accordance with Article 8 of the Rules of Procedure;
(c) notes submitted to Coreper and/or to the Council for approval (I/A and A item notes), as well as the draft legislative acts to which they refer;
(d) decisions adopted by the Council during the procedure referred to in Article 251 of the EC Treaty and joint texts approved by the Conciliation Committee.
6. After adoption of one of the decisions referred to in paragraph 5(d) or final adoption of the act concerned, the General Secretariat shall make available to the public any legislative documents relating to this act which were drawn up before one of such decisions and which are not covered by any of the exceptions laid down in Article 4(1), (2) and (3), second subparagraph, of Regulation (EC) No 1049/2001, such as information notes, reports, progress reports and reports on the state of discussions in the Council or in one of its preparatory bodies (outcomes of proceedings), excluding Legal Service opinions and contributions.
At the request of a Member State, documents which are covered by the first subparagraph and reflect the individual position of that Member State's delegation in the Council shall not be made available to the public under these provisions.
***
Readers are welcome to share their experiences of the Council’s work methods and opennessi including the functionality of its web pages and search functions.
After this detour, the next instalment in this series is going to return the matters subject to the special legislative procedure, not yet covered in the previous posts.
Ralf Grahn
Let us turn to the Council’s Rules of Procedure to complement our series with procedural aspects of the Council’s legislative work.
These provisions are of general interest with regard to the character of Council work and principles such as openness, transparency and accountability.
***
Materials
The latest consolidated version of Council Decision 2006/683/EC, Euratom of 15 September 2006 adopting the Council's Rules of Procedure, originally published OJEU 16.10.2006 L 285/47, seems to be of 1 January 2009.
***
In a legislative capacity
Article 7 of the Council’s Rules of Procedure distinguishes the situations and sets the limits of the situations where the Council acts in a legislative capacity:
Article 7
Cases where the Council acts in its legislative capacity
The Council acts in its legislative capacity within the meaning of the second subparagraph of Article 207(3) of the EC Treaty when it adopts rules which are legally binding in or for the Member States, by means of regulations, directives, framework decisions or decisions, on the basis of the relevant provisions of the Treaties, with the exception of discussions leading to the adoption of internal measures, administrative or budgetary acts, acts concerning interinstitutional or international relations or non-binding acts (such as conclusions, recommendations or resolutions).
Where legislative proposals or initiatives are submitted to it the Council shall refrain from adopting acts which are not provided for by the Treaties, such as resolutions, conclusions or declarations other than those referred to in Article 9.
***
Open deliberations
Article 8 contains provision on discussions in public and their availability on the web.
When the co-decision procedure applies (future ordinary legislative procedure), the presentation and the opening debate on a proposed legislative act is open, as well as other Council deliberations, the closing debate and the vote.
Other important new legislative proposals are normally discussed in public, and they may be discussed publicly later. This includes proposals falling under the special legislative procedure.
Special public debates may be arranged on important issues.
The 18 montth programmer of the troika (or trio) and other policy programmes are debated in public.
Items set for public deliberation or public debate are marked on the agenda.
The public discussions are available on the web.
Article 8
Council deliberations open to the public and public debates
1. Council deliberations on legislative acts to be adopted in accordance with the codecision procedure under Article 251 of the EC Treaty shall be open to the public as follows:
(a) the presentation, if any, by the Commission of its legislative proposals and the ensuing deliberation in the Council shall be open to the public;
(b) the vote on such legislative acts shall be open to the public, as well as the final Council deliberations leading to that vote and the explanations of voting accompanying it;
(c) all other Council deliberations on such legislative acts shall be open to the public, unless, on a case by case basis, the Council or Coreper decides otherwise with regard to a given deliberation.
2. The Council's first deliberation on important new legislative proposals other than those to be adopted in accordance with the codecision procedure shall be open to the public. The Presidency shall identify which new legislative proposals are important and the Council or Coreper may decide otherwise, whenever appropriate. The Presidency may decide, on a case by case basis, that the subsequent Council deliberations on a particular legislative act shall be open to the public, unless the Council or Coreper decides otherwise.
3. On a decision taken by the Council or by Coreper, acting by a qualified majority, the Council shall hold public debates on important issues affecting the interests of the European Union and its citizens.
It shall be for the Presidency, any member of the Council, or the Commission to propose issues or specific subjects for such debates, taking into account the importance of the matter and its interest to citizens.
4. The General Affairs and External Relations Council convened in a meeting as referred to in Article 2(2)(a) shall hold a public policy debate on the Council's 18-month programme. Policy debates in other Council configurations on their priorities shall also be held in public. The Commission's presentation of its five-year programme, of its annual work programme and of its annual policy strategy, as well as the ensuing debate in the Council, shall be public.
5. As from the sending of the provisional agenda pursuant to Article 3:
(a) those items on the agenda of the Council which are open to the public in accordance with paragraphs 1 and 2 shall be marked with the words “public deliberation”;
(b) those items on the agenda of the Council which are open to the public in accordance with paragraphs 3 and 4 shall be marked with the words “public debate”.
The opening to the public of Council deliberations and public debates in accordance with this Article shall be made through public transmission by audiovisual means, notably in an overflow room and through broadcasting in all official languages of the institutions of the European Union using video-streaming. A recorded version shall remain available for at least one month on the Council's Internet site. The outcome of voting shall be indicated by visual means.
The General Secretariat shall as far as possible inform the public in advance of the dates and approximate time on which such audiovisual transmissions will take place and shall take all practical measures to ensure the proper implementation of this Article.
***
Public votes etc.
Legislative votes and explanations of votes as well as such minutes are made public.
The same principle applies with regard to common positions in relation to legislative acts in accordance with the codecision and the cooperation procedure and related Conciliation Committee proceedings, as well as statements concerning the establishment of a convention regarding police and judicial cooperation in criminal matters.
Various final votes are made public.
Article 9
Making public votes, explanations of votes and minutes
1. In addition to cases where Council deliberations are open to the public under Article 8(1), where the Council acts in its legislative capacity within the meaning of Article 7, the results of votes and explanations of votes by Council members, as well as the statements in the Council minutes and the items in those minutes relating to the adoption of legislative acts, shall be made public.
The same rule shall apply for:
(a) results of votes and explanations of votes, as well as the statements in the Council minutes and the items in those minutes relating to the adoption of a common position pursuant to Article 251 or Article 252 of the EC Treaty;
(b) results of votes and explanations of votes by members of the Council or their representatives on the Conciliation Committee set up by Article 251 of the EC Treaty, as well as the statements in the Council minutes and the items in those minutes relating to the Conciliation Committee meeting;
(c) results of votes and explanations of votes, as well as the statements in the Council minutes and the items in those minutes relating to the establishment by the Council of a convention on the basis of Title VI of the EU Treaty.
2. Moreover, the results of votes shall be made public:
(a) when the Council acts pursuant to Title V of the EU Treaty, by a unanimous Council or Coreper decision taken at the request of one of their members;
(b) when the Council adopts a common position within the meaning of Title VI of the EU Treaty, by a unanimous Council or Coreper decision taken at the request of one of their members;
(c) in other cases, by Council or Coreper decision taken at the request of one of their members.
When the result of a vote in the Council is made public in accordance with points (a), (b) and (c) of the first subparagraph, the explanations of votes made when the vote was taken shall also be made public at the request of the Council members concerned, with due regard for these Rules of Procedure, legal certainty and the interests of the Council.
Statements entered in the Council minutes and items in those minutes relating to the adoption of the acts referred to in points (a), (b) and (c) of the first subparagraph shall be made public by Council or Coreper decision taken at the request of one of their members.
3. Except in cases where Council deliberations are open to the public in accordance with Article 8, votes shall not be made public in the case of discussions leading to indicative votes or the adoption of preparatory acts.
***
Public access to Council documents
Public access to documents is a cornerstone of accountability and transparency. Article 10 of the Council’s Rules of Procedure refers to Annex II, which is presented below. Documents from and positions of member states are a special concern.
(The main rules are found in Regulation (EC) No 1049/2001. The Commission’s proposal to repeal and replace the Regulation by a new Regulation regarding public access to European Parliament, Council and Commission documents; Brussels, 30.4.2008, COM(2008) 229 final 2008/0090 (COD), is a hotly discussed issue between the EU institutions and questioned by NGOs and experts, but that is another story).
Council’s Rules of Procedure:
Article 10
Public access to Council documents
The specific provisions regarding public access to Council documents are set out in Annex II.
***
Specific provisions
ANNEX II
SPECIFIC PROVISIONS REGARDING PUBLIC ACCESS TO COUNCIL DOCUMENTS
Article 1
Scope
Any natural or legal person shall have access to Council documents subject to the principles, conditions and limits laid down in Regulation (EC) No 1049/2001 and the specific provisions laid down in this Annex.
Article 2
Consultation as regards third-party documents
1. For the purpose of applying Article 4(5) and Article 9(3) of Regulation (EC) No 1049/2001 and unless it is clear, upon examination of the document in the light of Article 4(1), (2) and (3) of Regulation (EC) No 1049/2001, that it shall not be disclosed, the third party concerned shall be consulted if:
(a) the document is a sensitive document as defined in Article 9(1) of Regulation (EC) No 1049/2001;
(b) the document originates from a Member State and
was submitted to the Council before 3 December 2001; or
the Member State concerned requested that it not be disclosed without its prior agreement.
2. In all other cases, where the Council receives an application for a third-party document in its possession, the General Secretariat, for the purpose of applying Article 4(4) of Regulation (EC) No 1049/2001, shall consult the third party concerned unless it is clear, upon examination of the document in the light of Article 4(1), (2) and (3) of Regulation (EC) No 1049/2001, that it shall or shall not be disclosed.
3. The third party shall be consulted in writing (including by e-mail) and be given a reasonable time limit for its reply, taking into account the time limit laid down in Article 7 of Regulation (EC) No 1049/2001. In the cases referred to in paragraph 1, the third party shall be asked to give its opinion in writing.
4. Where the document does not fall within paragraph 1(a) or (b) and the General Secretariat, in the light of the third party's negative opinion, is not satisfied that Article 4(1) or (2) of Regulation (EC) No 1049/2001 is applicable, the Council shall be seized of the matter.
If the Council envisages the release of the document, the third party shall be informed immediately in writing of the Council's intention to release the document after a time period of at least 10 working days. At the same time, the third party's attention shall be drawn to Article 243 of the EC Treaty.
Article 3
Requests for consultation received from other institutions or from Member States
Requests for consultations with the Council made by another institution or a Member State concerning an application for a Council document shall be sent via e-mail to access@consilium.europa.eu or by fax to (32-2) 281 63 61.
The General Secretariat shall give its opinion on behalf of the Council promptly, taking into account any time limit required for a decision to be made by the institution or the Member State concerned, and at the latest within five working days.
Article 4
Documents originating from Member States
Any request by a Member State under Article 4(5) of Regulation (EC) No 1049/2001 shall be made in writing to the General Secretariat.
Article 5
Referral of requests by Member States
When a Member States refers to a request to the Council, it shall be handled in accordance with Articles 7 and 8 of Regulation (EC) No 1049/2001 and the relevant provisions of this Annex. In the event of a total or partial refusal of access, the applicant shall be informed that any confirmatory application must be addressed directly to the Council.
Article 6
Address for applications
Applications for access to a document shall be addressed in writing to the Secretary-General of the Council/High Representative, rue de la Loi/Wetstraat 175, B-1048 Brussels, by e-mail to access@consilium.europa.eu or by fax to (32-2) 281 63 61.
Article 7
Processing of initial applications
Subject to Article 9(2) and (3) of Regulation (EC) No 1049/2001, any application for access to a Council document shall be handled by the General Secretariat.
Article 8
Processing of confirmatory applications
Subject to Article 9(2) and (3) of Regulation (EC) No 1049/2001, any confirmatory application shall be decided upon by the Council.
Article 9
Charges
The charges for producing and sending copies of Council documents shall be set by the Secretary-General.
Article 10
Public register of Council documents
1. The General Secretariat shall be responsible for providing public access to the register of Council documents.
2. In addition to the references to documents, it shall be indicated in the register which documents drawn up after 1 July 2000 have already been released to the public. Subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (1) and Article 16 of Regulation (EC) No 1049/2001, their content shall be made available on the Internet.
Article 11
Documents directly accessible to the public
1. This Article shall apply to all Council documents, provided that they are not classified and without prejudice to the possibility of making a written application in accordance with Article 6 of Regulation (EC) No 1049/2001.
2. For the purpose of this Article:
— “circulation” shall mean distribution of the final version of a document to the members of the Council, their representatives or delegates,
— “legislative document” shall mean any document concerning the examination and adoption of a legislative act within the meaning of Article 7 of the Rules of Procedure.
3. The General Secretariat shall make the following documents available to the public as soon as they have been circulated:
(a) documents of which neither the Council nor a Member State is the author, which have been made public by their author or with his agreement;
(b) provisional agenda for meetings of the Council in its various configurations;
(c) any text adopted by the Council and intended to be published in the Official Journal.
4. Provided that they are clearly not covered by any of the exceptions laid down in Article 4 of Regulation (EC) No 1049/2001, the General Secretariat may also make the following documents available to the public as soon as they have been circulated:
(a) provisional agenda of committees and working parties;
(b) other documents, such as information notes, reports, progress reports and reports on the state of discussions in the Council or one of its preparatory bodies which do not reflect individual positions of delegations, excluding Legal Service opinions and contributions.
5. The General Secretariat shall make the following legislative documents available to the public, in addition to the documents referred to in paragraphs 3 and 4, as soon as they have been circulated:
(a) cover notes and copies of letters concerning legislative acts addressed to the Council by other institutions or bodies of the European Union or, subject to Article 4(5) of Regulation (EC) No 1049/2001, by a Member State;
(b) documents submitted to the Council which are listed under an item on its agenda marked with the words “public deliberation” or “public debate” in accordance with Article 8 of the Rules of Procedure;
(c) notes submitted to Coreper and/or to the Council for approval (I/A and A item notes), as well as the draft legislative acts to which they refer;
(d) decisions adopted by the Council during the procedure referred to in Article 251 of the EC Treaty and joint texts approved by the Conciliation Committee.
6. After adoption of one of the decisions referred to in paragraph 5(d) or final adoption of the act concerned, the General Secretariat shall make available to the public any legislative documents relating to this act which were drawn up before one of such decisions and which are not covered by any of the exceptions laid down in Article 4(1), (2) and (3), second subparagraph, of Regulation (EC) No 1049/2001, such as information notes, reports, progress reports and reports on the state of discussions in the Council or in one of its preparatory bodies (outcomes of proceedings), excluding Legal Service opinions and contributions.
At the request of a Member State, documents which are covered by the first subparagraph and reflect the individual position of that Member State's delegation in the Council shall not be made available to the public under these provisions.
***
Readers are welcome to share their experiences of the Council’s work methods and opennessi including the functionality of its web pages and search functions.
After this detour, the next instalment in this series is going to return the matters subject to the special legislative procedure, not yet covered in the previous posts.
Ralf Grahn
Saturday, 14 March 2009
EU Council: Abandon all hope?
Abandon all hope, you who enter Justus Lipsius? The EU Council is better known for its adherence to opaque old style diplomacy than for embracing new school open governance, but even there you can find a glimmer of hope for the future.
***
Seven ministers
This call by seven ministers for the EU to make good its commitment to transparency was published by the European Voice 5 March 2009:
The EU's current rules on public access to documents held by EU institutions are based on the principles of openness and transparency, a crucial component of efforts to increase EU citizens' confidence in its institutions.
Under those rules, citizens can be denied access only if this can be justified based on a document's actual content. The experience of the past eight years has shown that this was a wise solution that was compatible with the objective of the regulation: to guarantee the "widest possible openness".
The Commission declared that it wanted to increase transparency even more when, in April 2008, it proposed revising that regulation. However, we and like-minded colleagues in the Council of Ministers are concerned that the proposal would have the opposite effect.
In many areas, the proposed reform seems aimed mainly at changing the current openness-oriented interpretation.
In negotiations within the Council, we have found ourselves defending the current level of access in many key areas, instead of discussing improvements to it. The risk we are facing is that entire categories of documents will be excluded from the scope of EU access rules. A good example of this is the idea of denying the public access to any documents relating to investigations run by the Commission - one of its core tasks. There are better ways of guaranteeing the smooth conduct of such investigations than by categorically excluding any possibility of public access.
We have also been surprised that the idea of reconstituting member states' absolute veto power over documents originating from them has gained some support not only in the Council, but also in the European Parliament. What would the EU's citizens have to gain from such reforms?
We are therefore glad to see that the Parliament's committee on civil liberties, justice and home affairs adopted a report on 17 February that shares our vision of a more transparent Union. We also welcome the statement made by Margot Wallström, the Commission's vice-president, that the Commission is willing to reconsider those elements of its proposal that would constitute a step backward in terms of openness.
Some worries remain, including the proposed bloc exemptions of whole categories of documents. We need new ways of guaranteeing the Union's openness. This reform process should be about moving forward, not backward, in the process of opening up the EU - a Union "in which decisions are taken as openly as possible", as the EU treaty proudly declares. There are ways of responding to legitimate concerns that would be compatible with this principle of transparency - as the current regulation demonstrates, with its excellent balance between openness and the need for confidentiality.
From:
Beatrice Ask
Minister of justice, Sweden
Tuija Brax
Minister of justice, Finland
Irma Pavlini Krebs
Minister of public administration, Slovenia
Rein Lang
Minister of justice, Estonia
Cecilia Malmström
Minister of EU affairs, Sweden
Per Stig Møller
Minister of foreign affairs, Denmark
Astrid Thors
Minister of migration and European affairs, Finland
Source: http://www.regeringen.se/sb/d/11683/a/122296
Ralf Grahn
***
Seven ministers
This call by seven ministers for the EU to make good its commitment to transparency was published by the European Voice 5 March 2009:
The EU's current rules on public access to documents held by EU institutions are based on the principles of openness and transparency, a crucial component of efforts to increase EU citizens' confidence in its institutions.
Under those rules, citizens can be denied access only if this can be justified based on a document's actual content. The experience of the past eight years has shown that this was a wise solution that was compatible with the objective of the regulation: to guarantee the "widest possible openness".
The Commission declared that it wanted to increase transparency even more when, in April 2008, it proposed revising that regulation. However, we and like-minded colleagues in the Council of Ministers are concerned that the proposal would have the opposite effect.
In many areas, the proposed reform seems aimed mainly at changing the current openness-oriented interpretation.
In negotiations within the Council, we have found ourselves defending the current level of access in many key areas, instead of discussing improvements to it. The risk we are facing is that entire categories of documents will be excluded from the scope of EU access rules. A good example of this is the idea of denying the public access to any documents relating to investigations run by the Commission - one of its core tasks. There are better ways of guaranteeing the smooth conduct of such investigations than by categorically excluding any possibility of public access.
We have also been surprised that the idea of reconstituting member states' absolute veto power over documents originating from them has gained some support not only in the Council, but also in the European Parliament. What would the EU's citizens have to gain from such reforms?
We are therefore glad to see that the Parliament's committee on civil liberties, justice and home affairs adopted a report on 17 February that shares our vision of a more transparent Union. We also welcome the statement made by Margot Wallström, the Commission's vice-president, that the Commission is willing to reconsider those elements of its proposal that would constitute a step backward in terms of openness.
Some worries remain, including the proposed bloc exemptions of whole categories of documents. We need new ways of guaranteeing the Union's openness. This reform process should be about moving forward, not backward, in the process of opening up the EU - a Union "in which decisions are taken as openly as possible", as the EU treaty proudly declares. There are ways of responding to legitimate concerns that would be compatible with this principle of transparency - as the current regulation demonstrates, with its excellent balance between openness and the need for confidentiality.
From:
Beatrice Ask
Minister of justice, Sweden
Tuija Brax
Minister of justice, Finland
Irma Pavlini Krebs
Minister of public administration, Slovenia
Rein Lang
Minister of justice, Estonia
Cecilia Malmström
Minister of EU affairs, Sweden
Per Stig Møller
Minister of foreign affairs, Denmark
Astrid Thors
Minister of migration and European affairs, Finland
Source: http://www.regeringen.se/sb/d/11683/a/122296
Ralf Grahn
Thursday, 12 March 2009
European Union: Access to documents
Do you think that the citizens of the European Union should be kept in the dark, to allow the member states undisturbed freedom to deal behind closed doors in the Council? Do you think that the existing provisions on access to documents should be judiciously restricted? Should the media be spared unnecessary expense doing investigative work?
If your answer is yes, you have nothing to worry about.
The Commission and a Council majority are at work to keep ‘harmful’ content out of your reach and the media reporting on the EU soporific.
If, on the other hand, you believe in a European Union ‘in which decisions are taken as openly as possible and as closely as possible to the citizen’, you may want to take a look at the Statewatch Observatory: the Regulation on access to EU documents: 2008-2009, where Professor Steve Peers analyses the positions of the EU institutions step by step and Article by Article (latest update 11 March 2009):
http://www.statewatch.org/foi/observatory-access-reg-2008-2009.htm
***
Cashman report
Yesterday 11 March 2009 the European Parliament voted on the Cashman report, but referred the matter back to the committee according to Rule 53(2) of the EP’s Rules of Procedure, meaning that the Commission has indicated that it is not going to accept all the amendments. The provisional version of the resolutions can be found here (with the resolution on the Cashman report starting on page 49):
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+20090311+TOC+DOC+XML+V0//EN&language=EN
The heading of the resolution:
P6_TA-PROV(2009)0114 Public access to European Parliament, Council and Commission documents (recast) ***I
Proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) (COM(2008)0229 – C6-0184/2008 – 2008/0090(COD))
(Codecision procedure - recast)
***
Watching the watchmen?
Although the EP has generally come out on the side of openness, there is as usual a disconcerting detail about its attitude with regard to its own members.
In The Telegraph, Bruno Waterfield reports ‘Euro-MPs keep their expenses secret’ (11 March 2009):
http://blogs.telegraph.co.uk/bruno_waterfield
***
About time for the editorialists of European media to wake up, don’t you think?
Ralf Grahn
If your answer is yes, you have nothing to worry about.
The Commission and a Council majority are at work to keep ‘harmful’ content out of your reach and the media reporting on the EU soporific.
If, on the other hand, you believe in a European Union ‘in which decisions are taken as openly as possible and as closely as possible to the citizen’, you may want to take a look at the Statewatch Observatory: the Regulation on access to EU documents: 2008-2009, where Professor Steve Peers analyses the positions of the EU institutions step by step and Article by Article (latest update 11 March 2009):
http://www.statewatch.org/foi/observatory-access-reg-2008-2009.htm
***
Cashman report
Yesterday 11 March 2009 the European Parliament voted on the Cashman report, but referred the matter back to the committee according to Rule 53(2) of the EP’s Rules of Procedure, meaning that the Commission has indicated that it is not going to accept all the amendments. The provisional version of the resolutions can be found here (with the resolution on the Cashman report starting on page 49):
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+20090311+TOC+DOC+XML+V0//EN&language=EN
The heading of the resolution:
P6_TA-PROV(2009)0114 Public access to European Parliament, Council and Commission documents (recast) ***I
Proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) (COM(2008)0229 – C6-0184/2008 – 2008/0090(COD))
(Codecision procedure - recast)
***
Watching the watchmen?
Although the EP has generally come out on the side of openness, there is as usual a disconcerting detail about its attitude with regard to its own members.
In The Telegraph, Bruno Waterfield reports ‘Euro-MPs keep their expenses secret’ (11 March 2009):
http://blogs.telegraph.co.uk/bruno_waterfield
***
About time for the editorialists of European media to wake up, don’t you think?
Ralf Grahn
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
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
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