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Questions about Europe?Your Europe - The portal to on-line European and national public servicesTreaty of Lisbon

EU rules on access to documents: The European Ombudsman's perspective

Available languages: en

León, Spain, 27 April 2011

Introduction

President, Honourable Members, Ladies and Gentlemen,

I wish to thank the Committee on Legal Affairs for the gracious invitation it extended to me to address this conference and to contribute to the on-going discussion about the need to evaluate the existing rules on EU administrative law and to examine the challenges and opportunities which the entry into force of the Lisbon Treaty and in particular Article 298 TFEU have brought forward.

In February this year, I launched a public consultation on public service principles in an effort to formulate, in a succinct and easily understandable form, the ethical principles that should guide the conduct of EU public servants. I invited citizens, interest groups, and other organisations to submit comments on a draft statement we have prepared. The consultation is still open and comments can be submitted until 15 May 2011. I hope that future proposals for legislation under Article 298 will be inspired by these principles, which will be finalised later this year after we have studied the results of the consultation.

Let me also add that I am delighted to be back in León. My previous visit was in February 2010, on the occasion of the commemoration of the eleven hundredth anniversary of the Kingdom of León, when I gave a speech in the framework of a series of conferences concerning democracy in Europe, organised on the initiative of, among others, the former President of the European Parliament, Enrique Baron Crespo. A big part of my presentation on that occasion was dedicated to a vital attribute of a healthy democracy, transparency.

A year later, transparency is still the focal point of my presentation. There are two ways of making the principle of transparency operational. The first is for the institutions to react to requests for access to documents. The second is for the institutions to be proactive in putting information into the public domain. The reactive and proactive approaches are complementary and reinforce each other. I will look at this subject from both perspectives.

Reactive transparency - Access to documents

Although problems concerning the interpretation and the application of Regulation 1049/2001 still exist, the fundamental principle enshrined in the Regulation that openness is the basic rule and secrecy is the exception forms part of the legal "acquis" of the EU.

As a result of the Regulation, the public's ability to monitor the exercise of power by the Union’s institutions has perceptibly increased. At the same time, the quality of the institutions’ systems for managing and retrieving information and documents has also improved, thereby enabling them to operate more efficiently and effectively, as well as more transparently. However, while progress has been made, the administrative culture of the institutions has not yet fully come to terms with openness.

Three years after the Commission first presented its proposal to revise the Regulation, the legislative process seems to be blocked. I have constantly underlined that any revision of the Regulation should be a step forward for transparency and for European citizenship, not a step backward. Any reform of the Regulation should be guided by what I believe was its original objective; that is to say, facilitating the widest possible access to documents held by the Institutions, so as to enable citizens to scrutinise, and participate in, processes of governance at the Union level.

In my view, the Lisbon Treaty and the legally binding Charter of Fundamental Rights provide further reasons for insisting that any revision of the Regulation must not reduce the right to access. Restriction of the rights already enjoyed under Regulation 1049/2001 would run counter to Article 42 of the Charter and the announced objectives of the Lisbon Treaty to improve the level of transparency and accountability in the functioning of the EU.  

Two recent developments provide, in my view, a degree of reassurance that the existing citizens' right to access will be maintained.

At a meeting with the College of Commissioners on 15 February, I suggested that they consider submitting a limited proposal for revision of the Regulation, to take account of the fact that the Lisbon Treaty extends the public's right of access to documents of all the Union institutions, bodies, offices and agencies.

I am glad that the Commission has now put forward a proposal for this purpose. I welcome this initiative, which is a useful step in the interest of legal certainty and increased visibility for the citizens' rights.

A second positive development is the General Court's recent ruling on the case Access Info Europe v Council, where the Council was found to have wrongly refused to disclose the identity of Member States taking positions during the negotiations for the revision of Regulation 1049/2001. According to the judgment, "If citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information".

In reaching its decision, the Court took into account inter alia the fact that the requested documents were not just part of the normal legislative process, which naturally most concerns the citizens who will be affected by that process, but the additional fact that the legislative proposal at stake concerned directly the rights of citizens to participate in that process. The Court also declined, in a very elegant way, to be persuaded by the Council's argument that, were the names of delegations to be disclosed, those delegations which may wish to make proposals for restricting or reducing openness would no longer do so for fear of the pressure likely to be exerted on them by public opinion.

To my mind, it is extraordinary that such an argument should be put forward in Luxembourg rather than, say, Pyongyang or Tripoli. I wonder if whoever formulated that argument has actually read the founding Treaties?

Proactive Transparency

Although most of the institutions’ thinking about transparency seems to focus on the reactive mode of dealing with requests for access, good administration of the right of public access not only requires the institutions to react correctly to applications, but also to be proactive in making information and documents easily available to the public.

An important aspect of the strategy that I adopted last year and made available in all 23 official languages of the EU, is to persuade the institutions that transparency is not just about reacting to requests for access to documents, as this is not sufficient to ensure effective access. In fact, effective access can often be hindered by huge delays in responding to requests and by the fact that citizens are not adequately informed that the information actually exists and is accessible. Let me use the example of a complaint I handled last year to illustrate this point.

In a draft recommendation to the European Medicines Agency, I explained the need for a proactive transparency policy. The case concerned a refusal to provide an Irish citizen with copies of adverse drug reaction reports. I pointed out to the Agency that, alongside its legal obligation to respond properly to requests for public access under Regulation 1049/2001, it would also be good administrative practice to put in place a policy of proactively placing in the public domain, for example on the Agency's website, information of interest to the public. I noted that the principle of transparency implies that EU institutions should seek proactively to identify what information the public needs and then proceed to disseminate that information in a manner that the public can easily understand.

 When the EU institutions are working in areas, such as control of medicines, which are technically complex, it is especially important that information be presented in a language which the public can easily understand.  Proactive efforts by the EU institutions to provide information will, therefore, normally involve the preparation and publication of new material, as well as (and I insist, parenthetically, on those words, because we are not talking about an alternative here) as well as providing access to existing documents. In deciding what, when and how to publish proactively, the institutions necessarily have to exercise judgment based on their knowledge of the specific characteristics of their field of work. I am happy to note that the European Medicines Agency appears to be making efforts to comply with my Draft Recommendation. I will be visiting the Agency in London next week and expect to be informed of the latest developments.

I will also briefly mention that the European Data Protection Supervisor has recently published a paper in which he also recommends that the institutions adopt a proactive approach to the relationship between public access and data protection rules. Specifically, Mr Hustinx urges the institutions to make clear to data subjects, before or at least at the moment that their personal data are collected, the extent to which their eventual processing includes or might include the public disclosure of the data. I will not say more on this point because Mr Hustinx may develop it further in his intervention here today.  

It must be recognised that efforts are already being made by the EU institutions. For instance, acknowledging that its policy papers tend to be quite technical and full of terminology that is not part of everyday language, the Commission is already communicating proactively through citizen's summaries of legislation explaining the issues in straightforward, non-technical language.

Another important step towards proactive transparency is the Transparency Register. At the beginning of the year, the Parliament and the Commission reached consensus on an agreement to establish and operate a common register for the registration and monitoring of the organisations and individuals engaged in EU policy making and policy implementation.

European Union citizens have the right to know which stakeholders are trying to influence the policy process in Brussels and what resources they are using to shape decisions that affect EU citizens directly. Ending secrecy around lobbying is essential to restore confidence in the EU institutions and improve the functioning of European democracy.

The Transparency Register will remain voluntary. Lobbyists "are expected to register", but they are not obliged to do so. While a mandatory system of lobbying registration, would address the problem more effectively, there are significant improvements in the new system, including a common code of conduct, improved complaints and sanctions mechanism and withdrawal of Parliament access badges from lobbyists who will not participate in the new joint register. The latter may prove to be an effective indirect way to oblige stakeholders to register since for many lobbyists in Brussels access to the Parliament is essential for their work.

I commend the efforts made by the European institutions. A proactive engagement with citizens and civil society should not be seen as a burden, which diverts an institution from its core business, but as an integral part of the core business of every EU institution. All of this represents major progress if we compare it to the times when transparency did not play a big role at the EU level. However, problems remain, and this is where the principles of good administration come into the picture.

Linking proactive transparency to the principles of good administration can provide guidance as to what steps should be taken in order to improve the public's right to access.

A first step is that each institution should have one or more information officers, charged with putting the right of public access into effect. They should ensure that applications are dealt with rapidly and that negative answers are properly grounded and convincingly explained. Information officers should also ensure that the institution has a proactive policy to put documents and information into the public domain. A related task would be to play an educative role, explaining not only the legal rules, but also their rationale and the benefits of working openly.

Another step for a better administration of the fundamental right to public access is the clear, pro-access drafting of the documents. In my view, it would be good administration for all documents to be drafted with a view to ensuring that citizens, organisations and businesses can have the widest possible access to them. If the document must contain confidential information, then the document should, as far as possible, be drafted so as to facilitate partial disclosure. That can be done by putting the confidential material in a separate section of the document, preceded by a non-confidential explanation of why the material is exempt from disclosure and, wherever possible, a non-confidential summary. If documents were drafted in this way, less time would be needed to deal with applications, fewer confirmatory applications would be needed and the institutions would be better able to respect the deadlines in the Regulation. In this context, the language used is also an important element: it should be plain and comprehensible.

Obviously, if a document is already in the public domain it is unnecessary for the citizen and the institution to go through the administrative process of making and dealing with an application for access. The most effective and efficient method of access is, therefore, to make it unnecessary even to make an application, by providing a useful, online register of documents and ensuring that the registered document is readily available through a link. An institution that regularly receives and accepts a large numbers of requests for access should examine seriously whether it could not learn to anticipate future requests and make documents available without being asked. Indeed, failure to be proactive in this way could constitute a form of maladministration.

The EU institutions already make a vast number of documents accessible on-line. But mere quantity is not enough. The good administration of access to documents involves making available the documents that people actually want and organising their availability in such a way that they can be found easily.

The creation and maintenance of such a register is an essential aspect of genuine engagement with citizens. Such engagement should be seen as part of the core business of every institution designed to fulfil the Union’s promises of transparency, participation and good administration. The aim should be to ensure that, unless there are valid reasons to restrict access, people can immediately obtain the documents they need through the register, without having to submit an application.

This means that the institutions need to ensure that information is collected, ordered, and stored in formats which make it discoverable and easy to release in real time. A user-friendly register of documents would be searchable and structured in such a way that it helps the user to understand the functioning of the institution. That means that the register should be based upon an analysis of the workflow in the institution and should be adapted quickly to take account of new and changing activities. Documents should be added to it promptly and updated on a regular basis.

In conclusion, I hope that the institutions, and above all the Parliament, will seize the opportunities presented during the Revision of Regulation 1049/2001 as well as in the framework of a future legislative intervention in the area of administrative procedural law to put the right to good administration into practice as regards access to documents.

Thank you for your attention.

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