Archive for September, 2009

Slipping through the net

€ 578 million a year is “a sort of money” – as we would say in Denmark. This is what the European Union grants to the Common European Fisheries Policies, the CFP.  Spain and Poland are by far the largest recipient nations according to Commission statistics. But who actually gets the money? Who are the companies and fishermen, who carry out our common policy? And what are the projects, they spend the money on?

The fight to get access to information about the fishsubsidy beneficiaries is described in a new analysis that I made for the British non-profit EU Transparency. Unfortunately my conclusion is that transparency is having a bad time when it comes to fisheries.

Journalists and activists had figured out the information for previous years by project, place, vessel. Through freedom of information requests they had gotten out this type of information from the late nineties until 2006, 15 bits of information on each payment. However for that period one important piece of information was lacking: The name of the company or person, who actually got the money.

This was solved through the European Transparency Initiative initiated by Siim Kallas, vice-president of the European Commission.  He broke the spell of so-called business secrets and so-called protection of privacy when it comes to administrating European money. Now it is obligatory for the member states to publish the recipients.

Unfortunately the transparency push is hampered by the fact, that not only the responsibility for the data themselves lies with the member states, but also the duty to publish them.

The responsibility for the data themselves is clearly with the member states – they administrate and distribute the money and have to account for that. However the responsibility for publishing the data without giving clear guidelines on how they should be published actually worsens the situation. The European citizen, activist, politician, journalist, academic who wants to get an impression about who gets what, is left with a jumble of different formats, lacking information and other obstacles.

Given the fact, that journalists, activists, academics, politicians are a breed, that usually does not give up before information is out, it would now be worthwhile to save everybody’s time and lift the transparency initiative from the principal level (that Siim Kallas achieved) to the operational level.

This type of basic information as to who receives the European money and what they use it for should be made public in a user-friendly format on European level. It would save enormous amounts of time and effort for those, who seek the information as well as for the officials, who through freedom of information legislation are obliged to grant it.

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Patients or industry

The European Medicines Agency EMEA has a highly delicate balance to take care of when it comes to transparency: It has to weigh the interests of patients in knowing about the effects and side-effects of medicines against the interest of the pharmaceutical industry, who considers many of exactly the same information as business secrets.

So if you want to join the debate about information on your medicines in the future, act now! The EMEA who is taking care of a growing part of approvals and safety controls, has sent its new transparency strategy into public hearing, and the deadline of September 25th is approaching fast.

Medicine information professionals like the French medical journal Préscrire address serious criticism against the openness practice of the European agency, even using the verb “censoring”. Interestingly Préscrire has systematically tested the transparency of EMEA according to existing European access to documents regulations, and the outcome was rather devastating:

“The European agency censors certain important parts of documents including information of scientific interest, among them information about pharmacovigilance (safety evaluations of medicines). The interest of the patients is not taken well enough into account,” was the conclusion of Préscrire as late as July 2009.

In its hearing paper EMEA suggests that it intends to establish a register of documents – a register that has been obligatory according to the access to documents regulation since December of 2001.

Thus it is more than laudable, that the EMEA now addresses the problems, particularly as the agency observes an increasing number of requests from the public.

The balance between public interest and the interest to keep business secrets will often occur, however when it comes to medicines it appears to be particularly delicate.

On the one side patients desperately need to know, which side-effects the pills have, that they swallow, so that they can weigh them against the seriousness of the disease. European patients make out 31% of the worlds customers of the pharmaceutical industry, in other words they are a good market and should be respected.

On the other side the pharmaceutical industry in Europe with its € 187.153.000.000 production provides more than half a million jobs throughout the continent, the 2008 industry estimate was 635.000 jobs.

Seen from an openness point, the current draft does raise some concerns. The EU has – fortunately – an access to documents regime with a regulation and developing case-law. The EMEA being an agency is fully covered by this regulation and case-law and may not go its own ways. On the contrary it should comply fully with the regulation as it has been obliged to for years

On the transparency website Wobbing in Europe you can read a comment about the EMEA hearing document in relation to the European rules on access to documents.

Read the series of articles, where we got access to the previously secret reports about side effects and published stories about them in the Netherlands, Belgium, Denmark and on the Euobserver.

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Court in race against time

Currently the EU has one of the more modern freedom of information acts in the world. A law that can be improved, of course, but a strong law all right. Yet it is young, and the European Court of Justice is still working on the case law.

In the recent judgements, the European Court several times has ruled in favour of transparency for citizens, for companies, for the public interest.

An opinion this week by the Advocat General in a transparency case appeared to follow that line. The protective exceptions to the general right to access have to be used carefully, the opinion confirmed.  She thus confirmed the previous judgement by the Court of First Instance and overruled the appeal by the Commission – who was reluctant to grant access to the documents concerning this state-aid case.

Yet the Advocat General Juliane Kokott, the judges, the European Court of Justice and most importantly the public are running against time: If the draft reform of the European access to documents regulation is passed as suggested by the Commission, the Court may lose this case anyway.

Not because it misinterprets, what the politicians decided when passing the access to documents regulation. But because the Commission has drafted the new regulation in a way, that cases like the one in this court-case will be entirely taken out of the reach of public scrutiny, if the reformed law is passed as drafted.

The current case is about the glas manufacturer TG Ilmenau in the town of Ilmenau in rural Eastern Germany, only a short drive from the woods, where until 20 years ago the iron curtain prevented openness and free movement – at least in some directions.

It’s a state aid case, where Germany routinely told the Commission, that there was public funding involved in a project for this company, and a few years later the Commission opened a case to cross-check. So far nothing special.

However when TG Ilmenau used every Europeans right to ask for some documents in and around the case, the Commission turned the company down referring to an exception protecting ongoing cases.

Transparency is limited, because publication may not disturb ongoing investigations, inspections and audits. Fair enough. None of the good guys in a crime story would ever tell the bad guys, that the police is on the way, so the bad guys can clean up what needs to be cleaned up.

But the European Court of First Instance supported TG Ilmenau. In the summary of the judgement it basically told the Commission, that it was too easy to just deny access referring to this being an ongoing case:

The mere fact that a document referred to in an application for access (…) concerns an interest protected by an exception cannot justify application of that exception.

Also the exception should always be weighed against the public interest in a document, the Court ruled.

The judgement was made public back in December 2006. The lost case thus may have been on the top of the memory of those officials, who drafted the green paper for the reform of the right to documents law, which was sent to public hearing in May 2007.

According to the draft law’s article 2.6 “documents forming part of the administrative file of an investigation or of proceedings concerning an act of individual scope shall not be accessible to the public until the investigation has been closed or the act has become definitive. Documents containing information gathered or obtained from natural or legal persons by an institution in the framework of such investigations shall not be accessible to the public.”

The draft new access-regulation is currently dealt with by the Parliament and the Council. It will be interesting to see, whether the view of the Court supporting public access or the view of the Commission will win in the end.

Read a summary of this weeks Court opinion on Wobbing in Europe / Read the state of play of the reform of the regulation here and here.

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Danish openness + European openness = citizen in the dark?

Mr. Wium-Andersen enjoys being in the Danish nature. He is very fond of wildlife, nature and birds – their protection is important to him. Obviously he follows closely a case, where protection through European law apparently is stronger than the practice in his native Denmark – in Brussels it would be called an infringement case.

As far as he knows, there is an infringement procedure or at least a correspondence about Danish protection of birds. So he asks for access to the documents. A natural thing to do in Denmark, a country where Nordic tradition says, that public administration is there to provide service for the public, including information about the administration. An educated public, of course, able to think, speak and decide. And used to participate in the public debate on an informed level.

However the Danish ministry declines to give him access. The reason: A provision in Danish access legislation to protect the foreign relations of the Kingdom of Denmark and relations to international institutions.

Well – the EU could be viewed as an international institution. But when it comes to the law about protection of birds and other legislation of similar power, the EU is – really – just a higher administrative level.

And besides: Isn’t it all a good story? The EU and its member states have agreed to protect the nature in favour of our life quality and our children’s future. The Commission – as the guardian of the treaties – is playing its role as it should, reminding a member state to respect the commonly agreed rules. Why would the Commission not be interested in displaying its role as the good guy, taking care of nature protection throughout the continent?

Why mention the Commission here? Because the Danish rejection has in part to do – it turns out – with a letter from the European Commission stating, that it does not want this information out.

Danish citizen Wium-Andersen is upset. Yet he has not given up. But turning directly to the Commission using European access-laws is not of much help. In its rejection the Commission argues with the protection of an ongoing inquiry – in other words it wants to protect its relation with Denmark.

This leaves the Danish citizen in no man’s land: The Danish ministry does not want to give the information to him because it respects the relation with the international body European Commission, and the Commission does not want to give him the information, because it wants to protect Denmark.

A sad story, as it does not exactly strengthen trust in the European administration – be that on European or national level. Does Europe appear intransparent? Yes. And now they even try to influence the Nordic administrations to be less transparent? Not good!

Particularly not good, as this is not the first case. Previous cases were about access to information about consumer protection, media competition and European farmsubsidies.

Why invite to such an obvious potential conflict? Had the Commission and Denmark given access to Mr. Wium-Andersen, he might have written a readers comment in a local newspaper and there would have been a debate with environmentalists and politicians in Denmark about the birds. By hiding the information through apparently kafkaesk methods, the case has moved up including parliamentary questions in the Danish as well as the European parliament.

European transparency must do better than that!

Read the details and documents of the above case on Wobbing.eu.

Read the question in the EP by MEP Anne E. Jensen (ALDE) and the answer by commissioner Margot Wallström.

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