Comment: Common cause against transparency and birds?

BRUSSELS – 26 / 8 / 2009 - Denmark does not treat its wild birds well, at least not according to EU-legislation – or so it appears. A concerned citizen wishes to know more. However the Danish government and the Commission both deny him access to the documents.  Is this another case about how transparency is squeezed between EU and national systems?

Comment by Brigitte Alfter

It’s all about birds. Protected birds.

EU-legislation on birds in several member states is among the strongest protection measures. And if the member state does not fulfil this legislation, the Commission – as the guardian of the treaties – takes up its role and reminds the member state of its duty to respect the common agreements.

A positive story, one should think: We protect our natural inheritance, a positive story for the European model. Yet it is more tricky than that.

Most recently our common interest in protecting rare birds has turned in yet another story about how the EU contributes to prevent traditional Nordic transparency from being practised. Access to documents in Denmark is suggested denied (pdf, 76 KB) by using an argument from the Access to Documents regulation concerning the European Institutions, 1049/01.

Logically the Commission should have a political interest in making its point in this case – so why would they deny access to these documents? Furthermore the main documents of the case are not only given to friends of the nature, they are even available online.

However the Commission this year did suggest to deny access in Denmark. It may have been the obvious lack of logic that caused suspicion in Denmark: Did the Commission and the Danish ministry take common cause against transparency? Did the Commission with its letter support the Danish ministry in denying access? Did the ministry ask for such a letter? So much suspicion, that it even lead to several parliamentary questions. Of course the ministry did not do that, the ministry states in the latest answer to the question in the old Folketing in Copenhagen on June 9^th 2009. (doc, 116 KB)

Nevertheless the Commission did argue against transparency. In its denial, the Commission refers to the Petrie case (T-191/99) at the Court of First Instance, where the Commission referred applicants of a wob back to Italy, as Italy had drafted some of the requested documents. Documents drafted by the Commission were withheld citing the ongoing-case exemption. There appears to be a certain logic of choosing a case about confidentiality in an infringement procedure. However in the present case the state of Denmark asks, whether Denmark itself can open the documents – a rather opposite approach to the Italian one back in 1999, where the disclosure would have been made by the Commission.

According to the concerned citizen, the core-documents of the case are already on the internet. The case was ignited by an infringement procedure against Denmark dating back to 2006. Opening letter and initial answer are – yes, freely available on the internet.

4.7.06 – accompanying letter to the Danish representation of opening infringement procedure

4.7.06 – opening letter of infringement procedure against Denmark

6.11.06 – accompanying letter of the Danish answer including two notes

30.10.06 – answer from Danish government

20.4.09 – Commission denies access to information in the case directly to a Danish citizen (pdf, 408 KB)

28.4.09 – parliamentary answer from Danish government (doc, 116 KB) stating, that it is now customary to ask the European Commission before granting access to this type of documents according to Danish law.

This last answer is maybe on the overall level the most troubling: It is now customary to test the Danish access to information decisions with the European Commission.

Later on, the Commission rejection was confirmed in a Q & A in the European Parliament, where commissioner Margot Wallströms confirms the rejection:

4.5.09 - parliamentary question form Danish liberal MEP Anne E. Jensen to the European Commission.

19.6.09 - EU-commissioner Margit Wallström answsering Anne E. Jensen sayting that each individual case has to be evaluated

This case emphasises the danger of conflicting practices cultimately gagging up Nording transparency. Particularly it is troubling, as this is not the first case, where the strong openness traditions are questions via or because of Brussels.

What about the case, when Sweden received letters by the infringement specialists in the Commission, because it had granted access to documents of high importance for consumers on gmo-testing? 

Or when Sweden and the Commission did not agree an releasing documents about a case on media support? 

 

And how come the Danes now turn to the Commission to hear, whether they are allowed to grant access to data gathered in Denmark as in a farmsubsidy case some years ago?

The most ironic is maybe the notion, that the Danes in the present case about protection of birds reject access in the documents referring to the interest of foreign powers. Is this European cooperation?

The current case is about the protection of birds. But it is about much more than that. It is about protecting the general right to access to public information. It is about the conflict between the more transparent countries and the less transparent traditions within the European Union.

At the end of the day it is simply about a concerned citizen, who is sent back and forth between the European and the national institutions in a case of ordinary European administration.

European transparency must be better than that.

Follow the debate about this subject on the Euobserver.