Seminar brings together several ‘old hands’ in the legal intricacies of public access to documents in the EU.
An uptick of ‘the new normal’ that has emerged in the academic world during the Covid-19 pandemic is the preponderance of webinars that allow participants from all over the world to meet and discuss issues of interest. This Monday afternoon, speakers and participants from different corners of Europe found themselves virtually in Florence, from where the first webinar of this week was held to mark the 20th anniversary of Regulation 1049/2001 on public access to documents. It also felt like a reunion of sorts with key figures around the inception of Regulation 1049/2001 in some cases meeting, albeit virtually, after a considerable amount of time.
The meeting was hosted and chaired by Deirdre Curtin, professor at the Robert Schuman Centre at the EUI in Florence and long-standing legal scholar of, and academic commentator on matters related to EU transparency. Professor Curtin is furthermore an affiliated researcher of the TrUE project who has also previously published on the Open Government in the EU blog.
The first speaker was Sir Graham Watson, who was an MEP (Liberals) at the time of the negotiations on Regulation 1049/2001. In his capacity of Chair of the EP’s LIBE Committee, he played a central role in conducting the negotiations with the Council’s representative, Ambassador Lund of member state Sweden which held the Presidency in the first half of 2001. Watson recounted the negotiation process -which was organised in one of the EU legislators’ first trilogue formats- among transparency-minded participants sharing a collective sense of opportunity. He characterised the general atmosphere at the time as one of an optimistic transformation of the Union from a purely economic project towards a Union of values, supported by the incumbency of Schroeder in Germany, Blair in the UK, Persson in Sweden, and Prodi in the EU. Watson underlined the satisfaction expressed by a wide spectrum of political actors with the legislative result achieved.
The next speaker, Michael Cashman, was like Watson an MEP (Socialists) and negotiator of Regulation 1049/2001, sharing, together with Hanja Maij-Weggen (Christian Democrats), the Parliament’s rapporteurship on the matter. Cashman particularly commended his fellow-negotiators for forming a broad political front capable of keeping all sides, including the more sceptical member states, and in the EP the Christian Democrats (‘this goes too far’) and the Greens (‘this does not go far enough’) on board on the deal. Cashman furthermore highlighted the contentious provisions in the legislation, such as the so-called ‘space to think’ clause (article 4(3)), the member state clause (article 4(5)) and the classified information clause (article 9) which thereafter surfaced repeatedly in legal controversies. Cashman closed his comments by expressing his regret that the revision process of Regulation 1049/2001, initiated in 2008, came to a standstill because of opposition in the Council.
The third speaker was Jean-Paul Jacqué, formerly member of the Council’s Legal Service and currently professor of constitutional law at the University of Strasbourg. Jacqué stressed that the issue of access to documents was by no means new to the Council when it entered the negotiations for Regulation 1049/2001. Instead, art. 255 of the Amsterdam Treaty, as well as other provisions therein, constituted the status quo among the member states as it had developed since transparency first came onto the agenda at the time of the Maastricht Treaty. Jacqué highlighted that a central concern of the Council has always been the protection of the operational capacity of the institution, meaning that the member states would be able to negotiate free from external pressure, and that legal pressures have already worsened the quality of recorded information. He argued that access to documents hardly forms the main instrument of reaching the public at large, and pointed out that many requests are in fact filed by individuals in the other institutions and lobbyists. However, he also acknowledged that interventions by the European Court of Justice had widened the public’s access to information in the legislative process.
The next speaker, Helen Darbishire, director of transparency NGO Access Info Europe, linked her comments to the reservations expressed by the previous speaker. She pointed out that the references to negative effects of transparency obligations on the decision-making process are long-standing and oft-repeated cautionary tales which she acknowledged indeed to an extent reflected typical institutional responses to transparency obligations. However, she countered by asking rhetorically how much space between the formal moments in a decision-making process we should consider acceptable. Citing a string of formal recognitions of the principle of government transparency across the world, including by the UN, the Inter-American Court of Human Rights and the Council of Europe, Darbishire argued that this made the ongoing resistance to legal obligations by EU bodies look bad internationally. She highlighted a number of specific issues, such as bureaucratic rigidity and lack of responsiveness, and inability to confront the open data dimension, and EU agencies making up their own rules as problematic areas requiring attention.
The fifth speaker, Onno Brouwer is a name known to all following the access to documents case law of the Court of Justice of the EU. Having acted as a legal counsel for scores of access litigants, Brouwer has extensive hands-on experience with the implementation of Regulation 1049/2001 and its enforcement by the courts. In this context, Brouwer opened his remarks by highlighting the very limited role that the courts can actually play in enforcing access law. They are unable to order the disclosure of documents or the creation of records containing important information, to serve injunctions for the overclassification of information or exceeding of statutory deadlines in access requests, or to respond to informal institutional strategies to work around the court’s case law. He mentioned the Council’s decision to remove reference to member states making amendments from documents after the Access Info Europe case, the Parliament’s argument that trilogues are not part of the legislative process in the De Capitani case and its refusal to disclose a confirmatory application decision in the Leino-Sandberg case, and the almost exact repetition of arguments previously rejected by the court in the Sweden and Turco case in the recent Pech case as particularly distressing examples. Brouwer acted as legal counsel in all of these cases.
The last speaker, Emilio de Capitani, turned out to have been the initiator of today’s seminar. Introduced with a friendly wink by Chair Deirdre Curtin as a “tireless campaigner employing soft and not so soft methods for mobilising people for his cause”, his track record of engagement with the EU transparency question is indeed impressive. Having previously served as the Head of Secretariat of the EP’s LIBE Committee (parliamentary support staff role), he was another actor directly involved in the inception of Regulation 1049/2001. After retiring from his role at the EP, he initiated a case against the institution over its trilogue secrecy, which became the landmark De Capitani judgment handed down in 2018. In this judgment, the court essentially rejected the informality of structural legislative negotiations between the EP and the Council as an argument for keeping documents confidential. More recently, he established the FREE Group, a fundamental rights think tank, and initiated another case over legislative transparency, this time against the Council. In today’s talk, De Capitani highlighted the still ongoing problem of gaining access to trilogue documents, even after said judgment. He furthermore decried the structural involvement of the European Council in setting the EU’s strategic agenda, which he characterised as a de facto encroachment on the legislative process, diminishing its transparency. Finally, he criticised the thin basis for the implementation of the EU’s classified information regime, which he argued has far-reaching effects for the public’s right to request access to classified information.
Thus ended a seminar in which the inception of the EU’s first -and still valid- access law was, and the issues associated with the current status quo that it creates were central. In many ways, it was a meeting of old hands, with most speakers having had an active role in the negotiation of Regulation 1049/2001 in the spring of 2001. Suitably, the final word was for former EP negotiator Watson. He struck an optimistic tone:
European integration is like water going down. It can be dammed for times, sometimes it takes a detour, but in the end it always finds a way down.
Transparency will follow, he argued. “If the same optimism and same mentality of the negotiators of Regulation 1049/2001 can be found again, it can be repeated.”