UK: Proposed Revisions Of Regulation 1049/2001 — A Step Too Far?

Originally published in the Freedom of Information Journal's July edition

This article deals with the European Commission's (the 'Commission') recent proposal to amend Regulation 1049/2001 (the 'Regulation'), and aims to give a broad overview of key changes that are being proposed. This analysis is undertaken against the background of the development of access to documents practice at EU level in the last decade. The authors also intend to put a spotlight on the wide-ranging effects of certain "clarifications" that the Commission intends to make to the exemptions as they currently stand.

Background To The EU's Access To Documents Regime

Before considering the various changes that the Commission is proposing to make to the Regulation, it is useful to consider the original objectives of the EU's access to documents regime.

The concept of transparency is a principle of Community law as enshrined in the Treaty itself.

For example, Article 1 of the Treaty provides that the Community Institutions should take decisions as openly as possible.

The wording of the Regulation reflects this basic principle of Community law.

Recital 3 of the Regulation comments that openness in decision-making also contributes to supporting the fundamental rights laid down in Article 6 of the Treaty and the Charter of Fundamental Rights. Recital 11 makes it clear that, subject only to certain exceptions necessary to protect exceptional interests, all documents of the Community Institutions should be accessible to the public. Article 1 sets out the purpose of the Regulation as:

1. ensuring the widest possible access to documents;
   
   
2. ensuring the easiest possible exercise of the access rights granted by the Regulation; and
   
   
3. promoting good administrative practice on access to documents.
   
   

European Transparency Initiative

Access to documents continued to be a high profile issue in the years following the Regulation coming into force, particularly as it coincided with the Commission's Plan D for Democracy, Dialogue and Debate.

Indeed, in a seminal speech trailing an important initiative on openness, the Commission Vice-President noted that the notion of transparency was both high on the European political agenda and an essential prerequisite for the integrity and credibility of the EU's political institutions. It was against this background that the "European Transparency Initiative" was launched in 2005 ('Making Brussels more transparent,' November 2005).

In addition to increasing transparency as regards the EU's use of funds, lobbyists and improving ethical standards of the Institutions' staff, the fourth main pillar of the Initiative was that the Commission must take concrete action to improve its own transparency vis-à-vis Europe's citizens (see: http://ec.europa.eu/commission_barroso/kallas/transparency_en.htm).

It is against this background of a significant impetus towards making information as available as possible, and documents as accessible as possible, that the latest Commission proposals on the Regulation must be considered.

Review Of The Regulation

Following the review of the Regulation's implementation at institutional level in 2004, the Commission concluded that the Regulation had worked "remarkably well." At that time, the Commission believed that the procedures contained in the Regulation were fit for purpose and that the exemptions could be applied in a manner that did not require any further fine tuning.

However, after several more years' experience of applying the access principles and exemptions of the Regulation, it became clear that there were certain issues that were causing concern both to the Institutions and those requiring access to information, particularly regarding the scope of the exemptions.

Indeed, a number of disputes had been brought before both the European Ombudsman and the Court of First Instance.

Therefore, in April 2007 the Commission published a Green Paper, opening consultation on possible changes to the access regime of the Regulation. ('The European Commission wants better public access to documents of the EU institutions,' April 2007).

In the Green Paper, the Commission set out three priority areas on which it sought views regarding the appropriateness of suggested amendments:

1. the Commission requested respondents' views on whether more emphasis should be placed on actively disseminating information rather than passively waiting for requests to come in. The Commission did not specifically enunciate the active versus passive dissemination as clearly as it is stated here, but the Commission's thinking is obvious if one considers the statistics presented in part 1 of the Green Paper. The statistics showed that the institution that had done the most to actively disseminate information on its activities, namely the Council, had managed to keep the number of requests at a stable level, whereas requests to other institutions had risen significantly.
   
   
2. the Commission requested views on whether the balancing of competing interests that is required when applying certain exemptions needed to be clarified. Although the Commission referred primarily to data protection issues (as the Court of First Instance jurisprudence had made changes in this regard necessary), the Commission hinted that it might seek to "clarify" the balancing issue for other exemptions also.
   
   
3. of less relevance in the current context, the Commission requested views on whether environmental information (regulated by the Aarhus Convention and Regulation 1367/2006/EC) should be brought within the ambit of the Regulation.
   
   

The consultation closed on 15th July 2007, and the results impacted on the preparation of the current proposal to which this article will now turn.

Current Proposal To Amend The Regulation

On 30th April this year, the Commission published a proposal to improve the current access regime, and a marked up version of the current Regulation was provided at the same time ('The European Commission proposes to improve public access to documents of the EU institutions,' April 2008).

The Commission's press release identifies that:

The Commission also notes that the proposal is based on respondents' views expressed during the 2007 Green Paper consultation and on recommendations from the European Parliament.

The Commission has introduced some amendments that are likely to have a positive impact on transparency in the EU, which is to be welcomed.

However, there are certain elements of the Commission's proposals, particularly those relating to Articles 2(6) and 12 of the recast Regulation, that give cause for concern as they appear to significantly narrow the Regulation's scope and focus in key areas.

Changes For The Better

Turning to the positive aspects of the recast Regulation first, a number of changes in Article 1 and 2 of the Regulation have clarified its purpose and widened its scope:

• The new version of Article 1 makes clearer than previously that the Regulation's specific purpose is the granting of the widest possible access to documents.
  
  
• Article 2(1) has been amended to remove the requirement that a person seeking access under the Regulation needs to be either a European Union citizen or resident in the EU. This brings the Regulation into line with many Freedom of Information regimes, including the UK's regime, which permits anyone (subject to applicable exemptions) to have access to the documents or information requested regardless of nationality or location.
  
  
• Article 2(2) has been amended to clarify that the Regulation applies to all documents held by an institution concerning a matter relating to the policies, activities and decisions falling with that institution's sphere of responsibility.
  
  
• Article 3 on the definition of a document now includes a specific provision that only documents drawn up by, and formally transmitted to, others are covered by the Regulation, in addition to documents registered and/ or received by the institution in question. Importantly, the Regulation now also provides, in Article 3, that data stored electronically is covered.
  
  

The Regulation has also undergone several changes to align it with both legislative developments in related areas and to comply with case law from the Court of First Instance.

As mentioned above, on the legislative developments side, the Aarhus Convention and Regulation 1367/2006/EC provide for a parallel yet separate access system for environmental information, and the Commission had accepted in the Green Paper that there may be a case for aligning the Regulation's exemptions with the environmental access regime. Amendments to two subparagraphs of Article 4 have now accomplished this.

Although it is clearly a positive development to align what could otherwise be two diverging access systems, it is regrettable that the Commission did not take a further step of consolidating the regimes into a unified access system. However, it is possible that the Commission will have considered the likely additional workload and delay that this would entail, and that this would outweigh the benefits of achieving a unified system.

On the case law side, the Court of First Instance and the European Court of Justice have dealt with data protection issues and their relationship with the access regime. They have also considered the extent to which Member States can prevent disclosure of documents submitted to Community institutions respectively.

In Bavarian Lager Co Ltd v Commission [2008], the Court of First Instance annulled what it regarded as an overzealous use by the Commission of the former data protection exemption (Article 4(1)(b)) when the Commission refused to provide the names of meeting attendees between the Commission and a trade association. Article 4(5) of the Regulation has now been adapted to comply with the Court of First Instance's judgment and, helpfully from a transparency perspective, the exemption has been curtailed accordingly. Last year, the European Court of Justice held, in Sweden v Commission (reported in The Times, January 11th, 2008), concerning the circumstances in which Member States can veto the disclosure of documents provided by them to Community Institutions, that Member States have no general right to veto the disclosure of such documents under the Regulation. In order for the Regulation to comply with this judgment, the Commission has inserted suitable wording in Article 5(2) to ensure that Member States are consulted in appropriate cases but that the presumption is for disclosure unless Member States have legitimate concerns about such disclosure.

Changes For The Worse

Turning now to the more negative aspects of the Commission's proposal, there are essentially three elements of concern — firstly, the Commission's full exemption for documents related to an administrative file in Article 2(6); secondly, the scope of the active dissemination provision (Article 12); and thirdly, the time limit extension in Article 8(1).

Administrative File Exemption: There has been an increase in recent attempts by parties under investigation by the Commission, for example in competition cases, to use the Regulation as a legal basis to seek potentially exonerating materials held by the Commission. As the Commission notes in its Green Paper, Article 28 of Regulation 1/2003 already limits the purposes for which information collected through inspections or investigations or received further to a request for information can be used.

However, the newly inserted Article 2(6) has now firmly slammed the door on any attempts whilst any such proceedings are ongoing and not yet final. The Commission attempts to justify this in its recast Regulation proposal by saying that the Regulations governing competition and trade defence cases already contain more specialised access regimes for interested parties, and that such rules would be undermined if the public were to be granted wider access under the Regulation.

It seems somewhat surprising that, at a time in which the Commission is trying to encourage private enforcement of competition law (as evidenced by the recent White Paper on Damages Actions, which includes proposals on facilitating access to evidence), further avenues are being closed off rather than opened up. Whilst the authors fully acknowledge that certain categories of documents, such as those specifically requested by the Commission from companies under investigation, are protected from disclosure by Regulation 1/2003, it is not entirely clear why Article 2(6) should introduce the wide-ranging ban that it has.

In its press release announcing the recast Regulation, the Commission maintains that, "[t]he proposed text is also more explicit on protection of documents related to ongoing investigations. This gives more legal clarity, but it will not lead to fewer documents being made accessible to the citizens."

Active Dissemination: One of the provisions that has attracted most criticism is the amended version of Article 12.

The Commission has attempted to paint this amendment in a positive light, and says that the provision has been redrafted with the purpose of granting direct access to documents that are part of procedures leading to the adoption of EU legislative acts or non-legislative acts of general application. Such documents should be made accessible by the Institutions from the outset, unless an exception to the public right of access clearly applies.

There are a number of comments one could make about this. First of all, although the Commission argues that Article 12 has in effect put in place a policy of so-called "active dissemination," in reality the Community Institutions, and in particular the Council, already make significant amounts of pre-legislative material available (primarily online).

Therefore, this hardly amounts to a startling initiative.

However, of far more concern is the fact that the old paragraph 1 of Article 12 has been deleted. This paragraph read: "The institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register." The words "[i]n particular, legislative documents" have also been deleted from paragraph 2 of Article 12, indicating that the meaning of the word "documents" in the deleted paragraph 1 was wider than that.

This has led to some commentators to question whether the Commission is attempting to significantly limit the scope of the Regulation to legislative and pre-legislative documents only. If that is the case, this may be contrary to the spirit of the Treaty-enshrined access regime and a highly undesirable outcome for transparency policy at EU level.

Time Limit Extension: Finally, the Commission has doubled the period of time that is available to respond to a requesting party's confirmatory application, from 15 to 30 working days (a full six weeks). A confirmatory application period is the length of time for the Commission to reconsider an initial refusal to provide requested documents in full or in part.

Interestingly, Article 8 has also been amended to remove the specific reference to what remedies a requesting party has if it disagrees with the Commission's approach — previously both litigation at the Court of First Instance and the Ombudsman route were mentioned in Article 8. Now the text merely refers to the Commission having to inform the requesting party of possible remedies (hence making the possibilities to appeal a bit more hidden than before).

Conclusion

The Commission's current proposal to amend the Regulation is, to borrow a cinematic expression, a combination of the good, the bad and the ugly. Whilst the Commission has, in the first few articles, given the appearance that the purpose and scope of the Regulation has been widened for the purpose of increasing transparency and improving decision-making, the latter half of the proposals contain some proposed reforms that have unsurprisingly caused some disquiet amongst those in the practising and academic legal community with an interest in the subject area.

However, it may well be that the European Parliament, to whom (jointly with the Council) the proposal was transmitted, will pick up on some of the criticism that have been aimed at the draft, and that as a result some of the more negative aspects of the proposal may be watered down or removed altogether.

All Community Institutions, and the EU at large, have a lot to lose if there is even only a perception that the Regulation merely pays lip service to transparency without properly providing for the Treaty-enshrined rights.

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