By Staffan Dahllöf
This report appeared in Wobbing EU on June 10.
An update of a negotiating mandate dated June 4 failed to get backing from Member States’ representatives on a working party meeting between national experts four days later.
The presidency had suggested amendments that in some respects would be a move in the direction of the European Parliament’s position – see updated version of “Guide to the battle of transparency”.
But the move towards a bit more transparency was far too big for some Member States, and totally insufficient for others.
This leaves the presidency caught between a rock and a hard place.
The danes can now chose to stand firm on a previous mandate given by the majority of Member States. This will most likely by rejected up front by the Parliament and then all things fall on the floor.
The presidency can also chose to drop the controversial amendments of the present rules tabled by the Commission back in 2008, but keep pushing for a smaller change, known as a “Lisbonisation” put forward by the Commission in 2011.
This would formally adjust the present rules to the Lisbon treaty but would not add or subtract anything essential from the present right of access EU-documents, held by the institutions.
Labour MEP Michael Cashman (UK) rapporteur, and thus chief negotiator for the Parliament has commented to this website that the Lisbon treaty is in force, and the proposed adjustments of the access rules in this aspect won’t make any difference in practice.
Should the presidency press for an adoption of the small 2011-change never the less, it will be up to the Parliament to decide the outcome.
Finnish liberal Anneli Jäätteenmäki, co-rapporteur together with Michael Cashman, and referring to the constitutional committee says her position depends on possible moves from the Commission and the Council. ”But I will not accept anything that in any ways weakens the present rules,” she says.
Before the latest stalemate in the information working party Nicolai Wammen, Danish minister of European affairs, said it was a misunderstanding to claim that Denmark would try to take whole areas out of the present regulation.
“We will work for a result that keeps the present very high standard for openness but at the same time leads to a practical improvements. It is first and foremost a question to reassure that the rules are not abused,” the minister told Danish news site Journalisten.dk (in Danish only).
A similar but not identical explanation was given to this website by a ”presidency source” who did not want to be quoted by name. “We’ve said all the time that this will not lead to a giant leap forward.We went for an approach which would allow for more legal clarity and user friendliness. It is not fair to judge our ambitions on the mandate. Our efforts should be judged by the final result,” the source said.
This source explicitly denied that the presidency wanted to introduce veto for member states on access, but admitted that a new reference to national law ”might appear a bit unclear.”
This reference was omitted in the latest proposal which was turned down June 8.
We were also told that the presidency has no aim whatsoever to make definition of documents more restrictive for users.
“When, for example, I as a civil servant prepare the talk we are having right now I shall be able to write down notes with all kinds of loose reflections without having to disclose these notes to you. Similarly, when we talk about legislative documents, civil servants must have a right to make a first draft. But as soon as a proposal is distributed to Member States or for example approved by someone in the hierarchy in the institutions it should be defined as a document,” the source said.
Taken literally this explanation would be sufficient for the pro-transparent Member States who themselves have exceptions for internal, or working papers. But the history of EU-institutions holding on as much as possible to documents, indicates that such limitations most likely will be used aggressively to prevent all kinds of disclosure, the argument goes.
What path the Danish presidency will take now after the rejection of the latest proposal is not clear at the time of writing.
”We will have to analyse the situation, there are several different possibilities at hand,” says Jakob Alvi, spokesman at Denmark’s EU-representation in Brussels.
Nutty NGOs
Meanwhile Antony Gravili spokesman for the Commission added to the debate by declaring to news site Euobserver.com that the request of transparency is driven by big company lawyers and “nutty NGOs”.
“The debate is infantile and some people need to grow up,” Gravili said.
If the purpose was to provoke civil society actors, Antony Gravili succeeded.
Steve Peers, professor in law and associate to document centre and civil right watchdog Statewatch, wrote in a comment:
“It is a huge shame that at a time of a crisis of legitimacy of the EU, the Commission does not seize the opportunity to support a move towards significant greater openness of the EU, but instead decides to snipe at and insult the people and groups that do. Who really ‘needs to grow up’ the most?”
Wobbing.eu asked the presidency spokesman Jakob Alvi to comment on the Commission’s attitude to the transparency discussion. He rejected: “Those remarks were presented by the Commission at a briefing. It’s up to them, and nothing we will comment upon.”
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