Brussels, 27/01/2000 (Agence Europe) - On Wednesday, the European Commission adopted its draft regulation on public access to the documents of the European Institutions. This proposal is aimed above all to implement Article 225 of the Amsterdam Treaty, which stipulates that within two years of its taking effect, access to documents should have become a right for citizens and no longer depend on a discretionary practice on the part of the Institutions, described in internal codes and decisions. The proposal is also an opportunity to amend the regime in force - for the worse, say some MEPs and NGOs that denounce "an increase in exceptions" to the right of access.
The principle of the draft remains that of "as wide an access as possible" to documents, under the reservation of exceptions for documents "whose disclosure could significantly harm the protection" of public interest, the respect of private life or trade or industrial secrecy. These exceptions are set out in detail in the draft. On the whole, the new regime being proposed widens the rights of the public in the sense that:
i) currently limited to documents drawn up by the Institutions, access would be extended to all documents "held" by the Institutions" and, therefore, documents received by them. However, a received document would not be allowed to be disseminated if the sender opposes the move. A document may be written, electronic or audiovisual. It concerns the "policies, actions and decisions under the competencies of the Institutions, except for texts for internal use, such as discussion papers, service notes and informal messages". The right to obtain documents is granted to "all citizens of the Union and all natural or legal persons living or having their headquarters in a Member state" (it is not thus, de facto, granted to citizens living in countries candidates for EU accession). In practice, the Commission stipulates, requests are mainly addressed by universities, lobbies, and lawyers, and almost never by journalists. EP access to documents is governed by specific provisions.
ii) the lack of a response from an Institution would amount to it accepting to hand over the document, whereas, now it is synonymous with a rejection. Other than that important change, the procedure would remain the same: the request has to be made in writing to the Institution. The latter has a month to reply. If there is no reply or if it is negative, the person has to confirm his or her request. It is one month after this confirmation, in the absence of a reply, that it amounts to an acceptance.
"This draft will not improve the Union's transparency, on the contrary", said Heidi Hautala, President of the Green Group in the EP. Although the exceptions seem fairly close, although more detailed, to the current code of conduct, Tony Bunyan, of the NGO Statewatch, considers that adoption of the regulation as it stands would amount to increasing the exceptions by 50%. The main criticism concerns the exception aimed at the "protection of deliberations and the effective functioning of the Institutions". This, it is clear, provides the Institutions with the right to refuse access to their preparatory documents. The draft regulation does not clearly stipulate this limit. "All preparatory documents are not excluded, that will depend on their content", Commission sources tell us. Statewatch, for its part, believes that access to preparatory documents is essential for "civil society's participation in the decision-making process", whereas the aforementioned provision would enable the Institutions to exclude some. Worth noting, however, that the current code of conduct already enable the Institutions to refuse access to documents to protect "the secret of (their) deliberations".
Other limit to the draft, it does not concern Community agencies, the Committee of the Regions, nor the European Investment Bank or the European Central Bank. Although the Commission explains that Article 225 of the Treaty does not mention these bodies, it "does not rule out" that they too may decide to follow the example of the three Institutions, without being obliged.
Before Parliament, Prodi notes that almost 90% of requests are accepted
Presenting the proposal to the enlarged meeting of the Conference of Presidents of the European Parliament, President Prodi emphasised that last year's statistics demonstrate that the Commission was "now more open and more willing to hand over our own". It now seems "normal" to us that almost 90% of requests for access receive a favourable response, he remarked.
To prepare its draft, the Commission had "carefully" taken note of legislation that existed in Member States, in particular those which have a "long tradition of openness": however, Prodi noted, contrary to what is sometimes said, "the differences between Northern and Southern Member States is not so great", and there seems to be a "general consensus in the Union not only on the need to assure access to documents, but also on how to go about it".
As to substance, Mr. Prodi noted that the main change proposed in relation to the current system lies in the inclusion of all documents "held" by the institutions. Finally, while acknowledging the precautions had to be taken, Mr. Prodi said that "we have considered reviewing the exceptions" and stated that "a limited number of requests must anyway be rejected", even if the decision to turn down a request is "only made after a careful evaluation of the content of the document which has been asked for".