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Access to documents from the EU Commission after 9 months

If I will die at the age of 75, I will have waited ~1% of my life for the EU Commission to come up with a decision regarding a 21-page document. I’ve blogged about the story in the past, but here’s a short version of this story supplemented by  how it ended today.

At the end of July 2011 I request the summary of the weekly meeting of the Chefs de Cabinets – i.e. the heads of the personal offices – of the European Commission of 11 July 2011. I wanted to have this document because I am doing research on the reform of the Common Fisheries Policy and because the Commission meeting summary of 13 July 2011 showed that there had not been any substantive discussions on the matter, proving that the last decisions had been taken two days earlier.

So I requested the meeting summary of the Chefs de Cabinets meeting, and on 12 August 2011, access was fully refused by the Secretariat General of the Commission. So I went into appeal. If the Commission would have abided by the law, it would then have had at maximum 30 working days, that is roughly until mid-September 2011 to provide me with an answer to the appeal.

Today I received a decision. It is 7 May 2012. Here is the document:

Part 1 & Part 2

The first thing to not is that compared to the initial request where any access was refused, the appeal gave me access to content on all 22 pages of the document, with only minor parts being blackened out. Unfortunately, the part that interested me most (page 18 in part 2) is almost completely blackened. Which means I have waited 1% of my life in vain.

Here are the reasons the Commission gave not to disclose that part:

“The withheld text in one paragraph of the annex (mentioned under point 5 above), contains notes on internal discussions with regard to the reform of the Common Fisheries Policy. As regards this proposal for reform, the Commission has already adopted its proposals. Nevertheless, the inter­institutional decision­making process with respect to a number of them is ongoing and the Commission will have an important role to play. Indeed, Pursuant to Article 293 TFEU, the Commission has a right to amend its proposals at any time. In this regard, it must be noted that, as recognised by Advocate­ General Geelhoed in its conclusions of 23 February 2006 in Case C­432/04, (para. 72), the Commission fulfils a vital arbitrating role in conciliating interests of the Member States, trade and industry and citizens in the process of defining Union policies and proposing legislation. It must, therefore, in certain circumstances be able to protect its internal discussions and preliminary deliberations in order to safeguard its ability to fulfil these tasks effectively.

The undisclosed part of the annex reveals issues and positions that the representatives of the Commissioners have discussed, not all of which are reflected in the final version of the proposal. However, as it was previously explained, during the course of the inter­institutional negotiations the Commission may amend its proposal and, at this stage, it cannot be excluded that it will revert to these positions. Putting in the public domain the possible options that the Commission may re­consider in the discussions with co­legislators would prejudice the Commission’s margin of manoeuvre and severely reduce its capacity to contribute to reaching compromises, thus seriously affecting its decision­making process.

In this situation, disclosure of the relevant part of the requested document, identified under point 5 above, would seriously hamper the Commission’s ability to take decisions in the inter­institutional debate. It would reveal to the public and to its negotiating partners in the inter­institutional dialogue possible changes to the proposal that may become relevant in the course of the legislative process and which are based on policy options that were considered in the preliminary discussions but were not included in the final text of the two Communications and two proposals for regulations concerning the common fisheries policy submitted to Parliament and Council. This would be highly detrimental to the decision­making of the Commission.”

In short, this is the same reasons it has given me already in another decision which is currently under re-appeal with the EU Ombudsman.

So now I have waited over 9 months to get this document. The good thing is that this is the first time I and the general public have ever seen even the structure of a Chefs de Cabinets meeting summary. From a freedom of information point of view this is a good day, also because it shows that the initial refusal by the Commission’s Secretariat General was wrong.

However, I did not get what I am actually interested in and so my research is yet again hindered by the Commission because of its problematic interpretation of its own role. I do not agree that because the Commission can make amendments in the course of a decision-making process, the decisions it has taken in the past are protected by the exceptions of the access to documents regulation. Once it has passed a proposal, its role changes and new decisions have to be taken.

These decisions that may be influenced by past decisions but that are new in that they relate to a new situation. And given that this is a new situation, it cannot generally argue that anything dismissed in the past is therefore protectable.

So the refusal of the Commission remains unlawful in my view, and the fact that it took 8 months longer than it may have taken according to the law makes this even worse. I’ll have to consider the next steps now…

2 Responses to Access to documents from the EU Commission after 9 months

  1. avatar Martinned says:

    You know that I am normally no big supporter of transparency, but in this case I agree with you. They seem to be making some kind of parallel with the Council, but I don’t see it. What does it matter what individual Commissioners said for the future negotiating position of the Commission? I can see how you would want to keep internal exchanges of view confidential to some extent so as to encourage people to speak frankly, but that’s a different argument. (And one that applies less to Commissioners, not more.) I suggest you learn to love Friday’s In ‘t Veld v. Council, which has some useful words for the EU Institutions.

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