Deadlocked EU transparency reform finds new impetus

25 September 2014

By James Crisp

This article first appeared in EurActiv.com. At the end of the article are many links.

EXCLUSIVE: The new European Commission must look again at the European Union’s deadlocked transparency regulation and push through long-delayed reforms, the EU Ombudsman, MEPs and activists have said.

Embarrassing court defeats for the European Commission and Council, and public calls for more open negotiations over the Transatlantic Trade and Investment Partnership (TTIP), have thrown the spotlight on the rules over public access to EU documents.

Ombudsman Emily O’Reilly and Dutch Liberal MEP Sophie in ‘t Veld called on Jean-Claude Juncker’s new Commission to finally break an institutional deadlock that has delayed changes for more than six years. O’Reilly told EurActiv that the regulation has been in need of an overhaul for quite a while.

“This law needs urgent review,” in ‘t Veld said.

Writing in EurActiv, in ‘t Veld said, “Barroso’s Commission refused to support Parliament in its calls for reform […] the Juncker Commission will start with a clean slate.”

Olivier Hoedeman, of the Corporate Europe Observatory, an NGO, said, “The right to access to documents is absolutely crucial and are an absolute necessity for holding the EU institutions accountable.”

The regulation

Under the regulation as it stands, the public can apply for access to EU documents. Applications are reviewed by officials and a decision is made whether or not to publish a paper. But there are no EU procedures or protocols for the classification of documents. Officials can arbitrarily classify papers as confidential at their discretion, in ‘t Veld said.

Steven Peers, professor of EU law and human rights law at the University of Essex, said there were some protocols but they allowed a wide range of discretion.

Papers can be restricted, made confidential or top secret if they are deemed disadvantageous to the interests of the EU or member states, he explained. Documents involving international relations with other countries can and have been kept secret.

But the Council did also declassify documents under its own initiative, for example, when a deal was done between member states, Peers added.

Hoedeman said, “We very regularly experience that the Commission fails to respect the access to documents rules and unduly tries to keep documents from public scrutiny.

“There’s surely room for improvement, but the rules aren’t bad. It’s the implementation by the EU institutions that is the problem right now.”

Court battles

The only way to challenge a decision is to take the institution to court in a lengthy legal battle, in ‘t Veld commented. Recently, two decisions to reject applications were successfully challenged in the courts, including by in ‘t Veld herself.

In July, judges at the EU’s highest court, the European Court of Justice, ruled that documents related to international activity, which would include TTIP, are not automatically exempt from EU transparency requirements.

>> Read: TTIP documents could be made public after EU court ruling

In ‘t Veld had taken the Council of Ministers to court over a rejected application that she’d submitted, requesting to see a legal opinion about the transfers of bank data to the US.

In September, EU judges in the lower General Court ruled that the Commission was wrong to deny MasterCard access to research feeding into draft regulation capping cross-border card payment.

Judges rejected Commission arguments that the papers’ publication would seriously undermine its decisionmaking process, that they were exempt because they were part of an antitrust case, and that their publication could damage the company carrying out the study.

TTIP

Campaigners hope those defeats will influence the Commission’s thinking for papers relating to the EU-US trade talks, or TTIP, which enter their seventh round in Washington next week.

But an exemption from the transparency regulation for papers governing international negotiations – such as those concerning TTIP – only encouraged more secrecy, she said.

In ‘t Veld’s victory represented a step forward in challenging the imposition of a blanket exemption, lawyers said at the time.

One notorious example is the Council’s continued refusal to publish the Commission’s mandate for handling the TTIP talks.

The mandate has been freely available on the Internet for a considerable amount of time, said the Ombudsman, who described the Council’s refusal as “ridiculous”.

Her office has called for its publication. The Commission has asked the Council permission to publish it but has so far been refused.

MEPs, civil society organisations and the Ombudsman have all called for more transparency in the talks.

“Given the significant public interest and the potential impact of TTIP on the lives of citizens, I am urging both these EU institutions to step up their proactive transparency policy,” O’Reilly said.

But she also recognised the “considerable efforts” the Commission has made to improve transparency.

The executive says the talks are the most transparent trade negotiations ever held, pointing to a dedicated website and Twitter account and regular stakeholder meetings. It argues that MEPs have more access to documents than is required by the Lisbon Treaty.

The Commission is also hamstrung by the US’ reluctance to publish its negotiating positions, a stance EurActiv understands is unlikely to change in the foreseeable future.

Trade committee MEPs do have access to consolidated texts of EU and US positions. They can be seen in dedicated “reading rooms”.

“But they’re not quite clear what they can do with [the information] because they can’t make copies […] but recently there was an improvement in that they are allowed to take some paper and a pen into them,” O’Reilly said after a meeting with MEPs.

Stalemate

MEPs viewed the Commission’s original proposed changes as a backwards step for transparency. But the Parliament’s amendments to the bill is fiercely opposed by member states in the Council of Ministers.

The 2008 proposals to revise the regulation were blocked for so long, the EU’s executive was forced to issue a second set of proposals in 2011 to bring the legislation in line with the Lisbon Treaty, which had come into force in the meantime.

Both proposals remain on the table despite the mandate of the old EU Parliament having expired.

The Commission has repeatedly tried to break the deadlock but with no success, Commission officials told EurActiv. The divide between the two institutions was simply too great.

The Ombudsman said, “My office continues to work for transparency and I think when we see when the new Commission comes in, we might see something put out […] but this has been stuck now for quite a number of years.”

A diplomatic source told EurActiv, “The Council has done what it could to align regulation 1049 [the transparency regulation] to the Lisbon Treaty but due to the merger of the two Commission proposals and to the diverging views between the institutions on other aspects no compromise could yet be reached on the overall package.

“But we hope that the new Parliament and the new Commission will give a fresh impetus to the discussions.”

Over to Timmermans

Responsibility for how to bring in the reforms will lie with incoming Vice President Frans Timmermans. Given sweeping powers to cut red tape, improve regulation and inter-institutional relations, he must decide how best to overcome the legislative paralysis.

The Dutchman, who will be the “right arm” of the new Commission President Jean-Claude Juncker, could choose to withdraw the proposals and go back to the drawing board.

In ‘t Veld yesterday (24 September) unveiled a roadmap towards greater transparency. It said, “The vice president should make transparency a higher priority and should present an ambitious plan of action.”

She added, “Timmermans has always been a strong advocate for more openness, so I hope he will put his money where his mouth is.”

Timmermans will be grilled by MEPs in just under a fortnight as part of the commissioner-designate hearings before the Parliament.

“It’s long past time to make the EU more open, Timmermans has to re-launch the process by making a better proposal than that in 2008,” said legal expert Peers.

The Parliament could try to break the deadlock by blocking another piece of legislation that the Council and Commission really wants, he added.

MEPs do hold a veto over a final TTIP deal but it is by no means certain there would be enough support to hold the trade pact hostage in exchange for more transparency.

What does Juncker think?

In his mission letter to Timmermans, Juncker pointed to his political guidelines for the new executive.

“Transparency should be a priority for the new Commission,” Juncker wrote to Timmermans, before calling for a mandatory lobby register covering all three institutions.

The letter and guidelines do not refer specifically to public access to documents but a speech Juncker gave to Parliament about TTIP gave an indication of the new Commission’s thinking.

“Let us ensure that these negotiations are as transparent as possible. I say this to you; if we do not publish the relevant documents – and I do not mean documents on negotiating strategies – this agreement will fail,” he told MEPs in July.

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