Dialogue between Parliament and Council on framework regulation concerning access to documents starts to bear fruit, but game is not won - Status of dossier

Brussels, 22/03/2001 (Agence Europe) - In a letter he addressed to the President of the European Parliament, Nicole Fontaine, the President of the parliamentary Freedoms and Citizens Rights Committee, Graham Watson (British Liberal), raised the limited progress that has been achieved on the path to adoption, according to the codecision procedure, of the framework regulation concerning access to documents, and for which Article 255 of the Treaty sets to cut-off date on 1 May 2001.

Mr Watson noted that the two year period foreseen by the Treaty could be very difficult to respect and that it would considered as a failure for our institutions and especially our citizens. It is thus of major importance that, during the vote closing the first reading by the Parliament, the institutions may assesses, if not a complete agreement, at least an agreement on the crucial points of the future regulation, underlined Mr Watson, who felt that the dialogue with the Council is starting to bear fruit. Recalling that, for the efforts of the Parliament and the President to be crowned with success, it is still necessary to have the Commission's assent, he continues: However, the assent from the Commission is far from acquired. The Commission, after having presented a minimalist proposal - which forces us to adopt numerous amendments to give a practical effect to the principal of transparency consecrated by the Treaty - maintained even after the vote in plenary a very reserved attitude if not contrary to the amendments adopted, by also raising, as indicated in a letter from Mr Prodi, the support for the initial proposal made by a majority of the Council. Mr Watson invites Mr Fontaine to call on the Commission President to assume a more positive attitude and to work as of now in order for the points that are the object of an agreement between the European Parliament and Council to be included in a modified proposal from the Commission. Also adding: if the agreement should not cover the entire text, the modified proposal could already allow - under the Swedish Presidency - to adopt a common position that the Parliament will examine as quickly as possible.

While the next meeting between the Council and Parliament representatives is set on 26 March, below is the state of progress of the dossier with regards to:

• Transparency of legislative process: in the Parliament it is qualified as the first significant step in the direction put forward by the EP, the decision adopted on Monday by the Council with regards to the publication, on the Internet, of preparatory texts produced by the working groups, even if it can be noted that the fact of excluding any indication of the position of the national delegations somewhat limits the value of the exercise.

The documents in question, having no link with the sensitive issue of ESDP, most of the observers even see in this decision a deeply anti-democratic nature. In a Communiqué, Statewatch is even more critical towards this decision, which allows, among others, each Member State to oppose access to one of its documents (see EUROPE of 21 March, p.4). The criticism by Statewatch also covers the other decision, adopted the same day, over the implementation means in order to guarantee the security of documents. Its head, Tony Bunyan, stated: These Council decisions undermine the discussion over a new code for access to documents. The Council took advantage of the interval before the adoption of this code (…) to protect the interests of the governments and NATO to the detriment of the citizens' right to know.

• Limitations to the right to access: this concerns the most sensitive point, but the Council and Parliament have taken steps towards a compromise. Remaining to be resolved: - the discretionary nature or the obligatory exceptions; - the possibility of excluding access to "internal" documents from each institution; - the handling of so-called "sensitive" documents corresponding to those for which one would invoke at the nation level the "State secret" (on this point the EP, by basing itself on what exists at the national level and in the United States, continues to call for a parliamentary control mechanism, which the Member States continue to refuse to hear talk of); - the handling of documents considered "confidential" by a third party. On this last point the Council defends the "author rule", which forces that the institution enforce the treatment requested by the third party, while the Parliament feels that it must remain up to the institution to decide on the basis of principals and exceptions foreseen by the law. At this stage, the Council only insists on the author rule for sensitive documents from Member States or international organisation. A compromise could thus be found.
• Conflicts between national legislation and European regulation: the Swedish Presidency is proposing the implementation of national legislation. Most of the Member States and the Council Legal Service feel that the requests put forward at national level should be passed on to the European institution. The Parliament feels that it is necessary to trust the Member States and that it is for the Community institutions to challenge the national legislation if it appears to be incompatible with the Community rules.

Regarding the idea consisting in making of this regulation the "Freedom of Information Act" of European institutions, there remains reluctance on the part of the Commission (which prefers to manage information policy and its budgets without a regulation on this basis) but the Council is open to the setting up of an electronic register, with, if need be, direct access to certain texts, but only to references for confidential documents. The setting up of a register involves the definition of internal documents to list. It is a question of defining a gradual approach that would accompany the internal reorganisation of "production" and archiving systems (a major Commission concern).