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28th Jan 2023

No compromise in sight on EU document secrecy

  • 'Who decides what was 'intended' or when something is 'finalised'?' (Photo: European Commission)

Negotiators remain far apart on new rules to govern which internal EU documents can be released for public scrutiny.

Jakob Alvi, the Danish EU presidency spokesman, told EUobserver on Tuesday (22 May) that member states and the European Parliament rapporteur on the dossier, British center-left MEP Michael Cashman, remain poles apart after initial talks, set to continue on Wednesday.

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"He made it clear the negotiating mandate that we [member states] have is not something he can accept ... and the same goes the other way around," Alvi noted.

EU countries agreed their position earlier this month in a paper leaked and denounced by the London-based pro-transparency NGO Statewatch.

Its most controversial provisions include: restricting the definition of what is an official EU document; giving member states the right to veto disclosure on the basis of national legislation; excluding legal advice given by EU institutions to their own policy makers; and giving "block exemption" to papers in ongoing infringement procedures against EU countries or in competition cases.

Member states want to define a document as any text "formally transmitted to one or more recipients, submitted for filing or registration, approved by the competent official, or otherwise completed for the purposes for which it was intended."

They add that disclosure of institutions' legal advice "shall be presumed to undermine the protection of legal advice."

A parliament source told EUobserver the proposed definition of a document is so subjective it would give officials too much leeway to say No.

"Their definition is too broad. Who decides what was 'intended' or when something is 'finalised'?" the contact said.

The Danish presidency hopes to bring the two sides together in time for the last General Affairs Council of its EU chairmanship on 26 June. But the parliament is in a good position to stand its ground.

If it blocks the changes, an extant regulation from 2001, seen by MEPs as more transparent than the new-draft rules, will stay in force. The incoming Cypriot EU presidency has said it has no interest in continuing talks.

A ruling by the European Court of Justice in the so called Turco case in 2008, which says legal advice should be made public, also backs parliament's point of view. But Denmark's Alvi said MEPs should be keen to establish that "co-legislators" (the parliament and EU countries) have more power over EU rules than judges in Luxembourg.

Meanwhile, Sweden, has said it would vote against the reforms as they stand. Estonia, Finland and Slovenia have also said they dislike the EU member states' proposal, even though they agree to use it as a starting point in talks.

The group represents a small minority against the 22-country-strong pro-secrecy camp. But the strength of feeling on the pro-transparency side was highlighted in a letter from Sweden's minister of justice, Beatrice Ask, to Cashman on 14 May.

"A compromise like the one suggested in the text presented to us would most certainly lead to less transparency," she wrote.

"It is of utmost importance that we continue to stand strong in our convictions, and to co-operate in order to find solutions which allow our citizens the level of transparency they are entitled to."

Correction: This article was altered at 11.30 Brussels time on 23 May to reflect more accurately the position of some member states. The original story said Denmark, Estonia, Finland and Slovenia would vote against the draft proposal

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