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Background of the EU

The Treaty of Rome in 1957 marked the start of the development of EU institutions creating the European Economic Community, consisting of six western European states contracted for the purposes of trade. The Maastricht Treaty of 1992 established the European Union under its present name, and the Treaty of Lisbon reformed the Treaty into its present state merging the “three pillars” of the EU (economic, social and environmental policy, common foreign and security policy, and judicial co-operation in criminal matters) under a single legal identity. The major EU institutions include the European Parliament, the European Commission, the Council of Ministers, and the European Council, while the European Court of Justice (and the Court of First Instance) rule on legal matters arising under the treaties and European legislation.

Background of FOI in the EU

Prior to the development of a fully fledged right of access, the Community institutions had Codes of Conduct relating to the release of information, and the Courts sought to protect the principle of transparency in their decisions. In 1995, the CFI [1] ruled requiring the Council to balance the interests of citizens in gaining access to documents against the need to maintain confidentiality when deciding whether to release information, and in 1996[2] the ECJ explicitly recognised the importance of access, but fell short of recognising a right of access. Beyond this there are a number of other examples of the CFI and the ECJ annulling decisions of the Council or the Commission even prior to the creation of the Transparency Regulation.

It was not until the implementation of the Treaty of Amsterdam in May 1999 that a right of access to documents was enshrined in the Community Treaty, and the development of a comprehensive framework for access to information began. Article 255(1) (now Title II, art. 15(3)[3]), provided that:

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”.

In response to treaty’s new provisions, Regulation 1049/2001 was enacted, creating the legislation necessary to implement a right of access.

Legislation

Despite its international character, the access to information scheme for EU institutions is much like many national schemes. While organisations, such as the WTO and the IMF have policies for publishing information, they rely on member states for policy formation and enforcement. Instead, the EU has central institutions willing and capable of operating an ATI scheme. The Regulation creates a right of access to “all documents held by an institution”, by which it means those drawn up or received by such an institution, “in all areas of activity of the European Union”. It is possible for any citizen of the Union, as well as any natural or legal person with a registered office in a Member State, to make a request for information covered by the legislation.

Access to documents is free, save for the cost of reproducing and sending copies, and the charge for access must not exceed the real cost of doing so. Institutions must respond to applicants within 15 working days of receiving an application, and where an applicant wishes to challenge a decision not to disclose information, they can ask the target institution to review their decision within 15 working days of receiving the initial response (art. 7). Should this review not result in release, the applicant can then pursue their application through a complaint to the European Ombudsman or by appeal to the European courts. Appeals, however, are rare. In 2009, the Ombudsman closed 16 complaints related to the regulation and received another 12. Meanwhile, only 6 appeals against the Commission were brought to the courts.

Exemptions

The scheme provides a comprehensive list of exceptions to the regime for access to information, including absolute exemptions and those that are subject to an “overriding interest in public disclosure.”

Among the absolute exemptions are the standard categories, such as where disclosure would undermine the protection of public security, defence, military matters, or international relations. Taking account of the economic history of the EU, there is also an absolute exception where the “financial, monetary or economic policy of the Community or a Member State” would be undermined.

Among those exceptions subject to a test of public interest, are instances in which disclosure would undermine court proceedings or legal advice, the commercial interests of a natural or legal person, or institutional decision-making processes. The international nature of EU transparency laws also accounts for provisions for where documents originate from a Member State. The member state exception was initially interpreted as requiring the permission of a Member State before releasing information that originated in that state, an interpretation that resulted in criticism from commentators such as Paul Craig[4], but this has since been overturned. Member States are now required to state reasons for opposing release that can be found within the Regulation itself [5].

Operation

The Commission published its latest report on the use of Reg. 1049/2001 on 30 June 2010 including a detailed breakdown of applications and the demographics of the users of the regulation. In 2009, 5055 application were made under the scheme, showing a slight decrease from 5197 in the previous 12 months. Of the applications made in 2009, 84 per cent were released immediately as a result of the initial application, while reviews of initial decisions resulted in release, or partial release, in 77.5 per cent of cases.

As to who is using the Regulation to access information, 46 per cent of requests came from members of the public, although this statistic covers all of those who did not indicate their profession or social role. Of those categories for which this information was known, 21 per cent of applications came from academics (down from 31per cent the previous year) and 10per cent came from lawyers. While 18 per cent of requests came out of Belgium, presumably because of the concentration of those working with the institutions in Brussels, the distribution of requests otherwise broadly followed that of population.

Those areas subject to the largest proportion of requests were the environment, transport and energy, cooperation in judicial matters, the internal market, and competition.

In practice, the topic of requests received by the EU institutions vary significantly. One 2009 request that reached the courts focused on documents related to a meeting of a group of scientists on the toxic effect of chemicals on human reproduction[6], while other notable cases have included information about why an individual’s assets were frozen on suspicion of terrorism[7]. But as the Commission has noted in the past, “specialists in European affairs [have been] the main people to benefit”.

Critical response

Alisdair Roberts, Director of the Campbell Public Affairs Institute, summed up the response to EU right to information legislation well when he called it “a qualified success”. In highlighting the comparatively strong formal powers of the EU compared to other intergovernmental organisations, such as the World Trade Organisation, alongside a prevailing “diplomatic culture” that tends towards secrecy, he has been skeptical of calling the scheme an outright success[8]. Similarly, in their report on the practical use of Regulation 1049/2001, Access Info Europe have highlighted a number of practical difficulties in accessing information[9], including variable implementation across departments, and a failure to cater for those who do not speak English.

References

[1] Carvel and Guardian Newspapers Ltd V Council T194/94 [1995] 3 CMLR 359

[2] Netherlands V Council Case C-58/94 [1996] ECR I-2169

[3] EU Treaty following the implementation of the Reform Treaty

[4] Craig, Paul “EU Administrative Law”

[5] Sweden V Commission [2007] C-64/05/P

[6] Borax Europe Ltd V Commission Cases T-121/05 and T-166/05 [2009]

[7] Sison V Council C-266/05 P [2005]

[8] Roberts, Alisdair “Multilateral Institutions and the Right to Information: Experience in the European Union”

[9] Access Info Europe, “Questions to Brussels: How Should a Citizen Request EU Documents?"

Page last modified on 30 sep 11 11:37

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