Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.
(Article 42 of the EU Charta of Fundamental Rights)
Tomorrow, 28 September, is the “International Right to Know Day 2011” and I had hoped to be able to tell a positive story for that day – but unfortunately I can’t:
One and a half months ago, I’ve requested a meeting protocol of the Chefs de Cabinet of the European Commission, a document which is of interest for my research. As blogged before, my initial request received a negative reply from the Secretariat General of the European Commission.
I appealed this decision, and – as I have also blogged – on 6 September I was informed that the Commission needed an additional 15 working days to come to a decision on this so-called “confirmatory application”. Yesterday, I have received the following answer:
The initial prolongation of 15 working days until yesterday was in line with the EU regulation on access to documents. However, article 8, paragraph 3 of this regulation also clearly says regarding the case in which these 15 days have passed:
“3. Failure by the institution to reply within the prescribedtime limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institutionand/or make a complaint to the Ombudsman, under the rele-vant provisions of the EC Treaty.“
As an academic and citizen with an interest in this document, I am in a strange situation now:
In the light of the law, my rights were clearly violated and I could go to the EU Court. However, I know that a Court proceeding takes years and I don’t have time to do that as the time I have for my research is limited. I could go to the EU Ombudsman, but all he can do is to put some pressure on the Commission – whether it will speed up my request or make the result better is unclear.
So I can believe the letter copied above and wait for a concrete answer, hoping that there will be a decision soon and also hoping that the decision will be as positive as possible. Or I can take the path of a legal or political complaint, not knowing whether this will make anything better for me in a timeframe that fits the increasingly tight schedule of my research.
This is a situation which shows that having rights, including the right to complain to a court or ombudsman, may be there, but when they are infringed there is no easy choice how to react. Institutions like the Commission have time, they can make you wait, and they are not afraid of entering into long proceedings. I don’t have this time and many who request documents don’t have this time.
What makes me most angry is not that it takes this much time to come to a decision. I understand very well that a protocol of a meeting of the Chefs de Cabinet concerns a lot of issues and a lot of people. What makes me angry is that the replies I have received from the Commission all lack any concrete explanation or reasons:
- The Secretariat General in the first rejection failed to give reasons why it could not release the document, not even in a partial way. The Commission just lost in a case at the EU Court of Justice because it failed to give such reasons.
- The Commission failed to explain concretely why it needed a prolongation of the time period, which was only allowed in extraordinary cases. This explanation is clearly prescribed by the access to documents regulation.
- The Commission failed to give a more precise reasoning why it needs longer than the time period that the EU law allows. In the letter, this situation is called the inability to provide me with a reply “within the statutory time frame” (euphemism for a violation of the “Right of access to documents” as defined by Article 42 of EU Charta of Fundamental rights) because it did not finalise an analysis and internal consultations. This does not explain anything at all and doesn’t even tell me how long I would have to wait to get an answer.
Getting the document late is annoying but it wouldn’t be the end of the world if I would have received some explanations on the why and how of the delay and the perspectives of getting an answer.
Not getting a document, not getting proper explanations, and knowing that although chances to win in Court are very high this would only be in some years and will thus not help to get my current research done is simply frustrating.
Therefore: Happy Right to Know Day 2011, European Commission!
PS.: It is important to note that in other cases I have received documents from the Commission within days or weeks and I am grateful to those officials who were very helpful. However, I’m also still waiting for another document that I first requested in early July and for which the final deadline (the end of the “statutory time frame”) is 6 October…