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Accessing EU Council negotiation documents on environmental agreements – a confirmatory application

Accessing EU documents for your research projects can be work-intensive and time-consuming as I have experienced with the EU Commission as well as with the EU Council in the course of this year. One recent confirmatory application made by an (undisclosed yet apparently) Belgium-based researcher to the Council for a large number of documents is an interesting case to notice in this regard.

At the end of May, the researcher requested the following documents (own highlight):

All Council decisions or conclusions not published in the Official Journal authorising the Community/Union to participate in negotiations with third countries with a view to the conclusion of mixed multilateral or bilateral agreements in the field of the environment, or authorising the signing of such agreements on behalf of the Community/Union since 1972. The agreements referred to are all those listed in the Commission’s DG RELEX Treaties Office Database under the activity area ‘Environment’ as of today.

About one month later, the researcher receives the following reply from the Council secretariat (own highlight):

In view of the very large number of documents covered by your application, the General Secretariat is unable to process your request within the time-limit laid down in Article 7(1) and (3) of Regulation No 1049/2001. Under these circumstances, we hope that you will be able to accept that your request will be processed as quickly as possible.

However, four months later, in October, the researcher did not seem to have received any positive reply, and therefore contacted the Council again, both via phone and via email:

I need the information requested within the framework of a research project I must complete by the end of November. I have the impression that the Council General Secretariat is not processing my request ‘as quickly as possible’ and urge you to provide the documents requested without further delay.

Not having received any updates two weeks after this letter, the researcher filed a confirmatory application (i.e. an appeal in accordance with Regulation 1049/2001 on access to EU documents) in mid-November. At the same time, the Council Secretariat had started sending out the first five documents requested, explaining why it took so long (own highlight):

We sincerely apologize for the delay in the processing of your application for access to documents,which is partly due to scarce staff resources and lack of technical tools allowing to rapidly identify documents on the basis of the information that was provided by you. In the databases of the Council’s Archives French is still used as default language, whereas the list of the international agreements transmitted to the Council Secretariat was established in English. Moreover, a part of the material does not exist in digitalised form, and the search for the relevant documents therefore had to be carried out manually.

Now these appear to be – to a certain extend – objective reasons why it took so long to receive a reply. However, I think the institutions could communicate these and other constraints much earlier and more openly with those who request documents, especially if the time periods provided by the law are exceeded.

I think it is particular bad practice to leave applicants in the dark for weeks or even months or working with overly general timeframes such “as quickly as possible” without any more precise indications how long it will take. In the case in which I’m dealing with the Commission, I’ve been several times promised to get a decision “soon” or “next week” (on 30 November…) without that I’ve received any kind of decision as of today for a request that I started on 5 July 2011.

In my view, it should become common practice in all EU institutions to give concrete and comprehensible updates at least every two weeks on delayed requests for documents or confirmatory applications, documenting exactly what has been done, why there is still delay and what the realistically expectable timeframe until finalisation is.

The researcher in the case described here received further 9 documents about a week after the first 5, and on 29 November s/he was informed that 75 more documents had been identified, 74 of which would be released (the full list is in the last annex to the confirmatory application).

However, in the reply to the confirmatory application the Secretariat of the Council informs that while the applicant had identified 134 international agreements related to the environment, the Council and the Commission could only identify 62, asking for a clarification on the missing ones. This means that this case is not yet closed, despite the long time it has already taken.

At least, the request by the researcher means that now 109 previously undisclosed or not-accessible documents are now available to anyone wanting to use them (see the annex mentioned above). Several of them are not even (yet) listed in the public register of documents of the Council, and so the file of the confirmatory application is so far the best way to find all of them.

While not advantageous for the researcher whose research has been severely delayed in the case of this request, the fact that this procedure went into confirmatory application at least allows the public to notice these documents and the difficulties encountered when requesting them. Yet, one can only hope that these delays did not severely harm the research plans by the researcher…



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