Deadlock on new EU transparency rules

BRUSSELS – 7 / 2 / 2010 - New EU-rules for access to documents will be delayed for an indefinite time it appears. The three EU-institutions the Council, the Parliament and the Commission have come to a standstill in negotiations on a proposal put forward in the spring 2008.

By Staffan Dahllöf

The standstill can be seen as a failure for the outgoing Swedish commissioner Margot Wallström who has been responsible for the proposal. It can also be seen as a failure for the outgoing Swedish presidency not being able to reach a diplomatic agreement in the highly prioritized political issue of transparency. But behind the scene few tears are being shed on this ground in Stockholm as the stalled proposal is regarded as weakening the present rules, known as regulation 1049/2001.

Sweden has together with Denmark, Finland, the Netherlands, Estonia and Slovenia aired severe criticism on the proposal, clashing with commissioner Wallström and her staff - notably the general secretariat of the Commission. But these six countries are too few and too small to form a blocking minority in the Council of ministers, let alone to press for changes of the proposal.

Meanwhile the EU-judges in Luxembourg have been producing decisions of how to interpret the present rules in a way that increasingly strengthens the right to access to documents. Thus it’s better to stick to the present rules while a steadily better case law is being established, the argument goes.

The Parliament, known as a pro transparency institution has also come down hard on the proposal. The Parliament voted in favour of 92 amendments in May 2009, but did not finalize its so-called first reading before the election in June. Now it is unclear whether the newly elected members have the same opinion as their predecessors.

A working party of civil servants negotiating on behalf of the governments in the Council has come to the conclusion that a clear-cut opinion from the Parliament is lacking. Further discussions in the working party have therefore been postponed until the picture gets a bit less misty.

The Commission repeatedly hails transparency, but critics have had an easy task in pinpointing suggestions in the proposal that in their opinion will weaken the right to access to EU-documents. These include narrowing the definition of documents as such, keeping large parts of the Commissions own administration outside the scope of the regulation and letting the legislation on privacy rule over legislation on transparency. The Commission also wants to double the time from 15 to 30 days for EU civil servants to handle requests for access.

As Margot Wallström is to leave the Commission it seems currently unclear who will be in charge of transparency questions. The two most likely candidates are Maros Sefcovic from Slovakia, designated commissioner for Inter-Institutional Relations and Administration, and Viviane Reding from Luxembourg to be responsible for Fundamental Rights and Citizenship.

None of the two mentioned the redraft of regulation 1049 during the hearing in the European Parliament or were asked to clarify their opinion in this matter. The Parliament is set to vote about the new commissioners the day after tomorrow, Tuesday the 9^th, during its session in Strasbourg.