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.
#1 by damien on September 4, 2009 - 10:22 pm
Will lisbon address this? I will be voting in just under a month and would like to know if the claims that lisbon will open the EU up to the people is true.
I’m already upset with the abuses by MEPs of their expenses and pensions. We have in Ireland recently heard of MEPs claiming 4 pensions(2 national ones and 2 EU ones). There appears no political will to address this. Maybe a No result will force MEPs to clean up their acts.
Secondly, Im watching with interest the EU’s response to the Libyian-Swiss tug of war. For an EU which prides itself in defending democracy and human rights, it is saddening to see the lack of support by the EU states towards the Swiss.
#2 by Alphast on September 5, 2009 - 2:19 pm
Dear Damien,
The answer to your question is not simple. However, the true question is: will rejecting any change of the EU institutions for the 3rd time improve a situation that everyone (opposed or in favor of the treaty) agrees is bad. My point of view is that it will just make things worse. Rejecting the treaty will delay any change by at least a couple of years. This means that the problems you describe and that Brigitte describes will continue for these two years, without any guarantee that an improvement will be found at the end. After all, the compromise of the current treaty was extremely hard to reach and it is unlikely that any new negotiation will modify it significantly, because the basic positions of everyone are known and well defined.
Now, will the treaty change things like the transparency issue? Maybe not. After all, this specific issue is not really addressed in the treaty because it is partly linked to an internal problem to the Kingdom of Denmark, not only an institutional EU problem. But at least, it will give citizens a lot better say on EU affairs (and thus indirectly on such issues) by giving more power to their parliamentary representation, both at EU and national level, and by giving them the right to address EU legislation by using their petition right. These two points of the treaty could help make the EU more transparent.
What could also help would be to vote for MEP’s that promote a better financial and general accountability of their peers. So basically, not EPP ones…
#3 by Blaat on September 5, 2009 - 4:46 pm
There will be more transparency in the legislative process due to the two followings things:
- Increase use of co-procedure, which means the parliament gets more involved in legislative matters.
- At the moment all EU council meetings are done behind closed doors but under the Lisbon treaty EU council’s legislative acts meetings will be open to public. However non legislative acts meetings will still be done behind closed doors.
Not sure whether there’s more or not, but those two things immediately springs to my mind, damien.
#4 by Brigitte Alfter on September 6, 2009 - 9:47 am
To answer the question by Damian, whether the Lisbon treaty will address transparency: On the legal level it will indeed, as it envisages to include all European institutions in the access to documents regime, not only Commission, Council and Parliament as now.
However the conflict between transparency in the traditionally more open countries and the traditionally more reluctant EU administration is not a question of the treaty or even the law, in my view. Rather it is a question of administrative traditions and mindset.
An official, who comes from an administrative tradition, where it is a virtue to protect documents against use (or abuse) by anyone except those further up in the hierarchy of the administrative and political system, can not possibly have the same view on openness, as an official from a country where all documents, even sms’es of government officials, are considered subject to public scrutiny and access to information. Even in the more open countries this public scrutiny can be considered burdensome by the officials. But in principle it is seen as a crucial part of a democratic system, and thus part of everyday administration.
The meeting of these two administrative traditions within the European institutions and between the institutions and the more open member states is a serious ‘clash of administrative cultures’, and it will follow the EU for a while.
#5 by damien on September 6, 2009 - 2:14 pm
Thank you all for your responses. The issue of transparancy is a tricky one, and as some of you have pointed, is influenced by national bureaucratic cultures. In Ireland, we have very strong right of access to information by the state through our Freedom of Information Act. Some would say we have too much rights to information(politicans embarassed over their expenses usually). Where there are restrictionson right of access and subsequent leaks, the Courts have tended to take the defend of ‘the public’s right to know, on issues of public importance’. I am not sure how we rank in terms of the Nordic countries, but it seems we have strong degree of openness and transparency. But unlike in the UK, we,the public, don’t use the information to bring about change (Uk MP expenses scandal comes to mind).
In terms of the Irish-EU interface, our parliamentary scrunity committee is under resourced as it stands. But the important thing is information is available to those that request it. As for Lisbon, there is no will by the government to increase the resources of the EU committee/sub-committee to allow it to effectively scruntise draft proposals. This is where Denmark leads.
Perhaps its unfair to link a yes vote to transparency. Perhaps the issue of access to information lies outside the treaties and in the bureaucratic learning within the EU.
#6 by Steve Peers on September 7, 2009 - 4:01 pm
As pointed out in answer no. 3, the Lisbon Treaty would improve the situation in that all Council legislative discussions would have to be public. While a lot of discussion of these matters would still in practice take place behind closed doors (in Coreper, working groups, and EP/Council negotiations), this change would nevertheless likely have a (positive) knock-on effect on the numbers of related documents made public in such cases.
Also, as pointed out in answer 4, the EU access to information regime would apply to all EU bodies, although in fact this change would not be profound as it first appears, since most of those bodies are already obliged to, or have unilaterally decided to, adopt identical or comparable rules. The exceptions are the ECJ and the European Council (ie summits) which would for the first time have to adopt such rules (although the ECJ would not have to adopt them in respect of its judicial role, so this would not mean so much).
As for the specific issue of the access to documents related to infringement proceedings, this issue is not really internal to Denmark but a general point. The question has been raised before the EU’s lower court, the Court of First Instance, several times, and the CFI has ruled that there is a justification for a refusal to release the documents in infringement cases up until the public hearing of a case before the EU courts. Before that point there is an interest, in the Court’s view, in refusing to disclose the documents because disclosure might prejudice negotiations on compliance with EU law between the Commission and the Member State concerned. In my view this is not prima facie a bad argument for non-disclosure, but obviously it loses its relevance in a case like this one, where the Member State does not in fact wish to insist on confidentiality (unless what is really going on is that the Danish civil servants don’t really want to disclose the documents, but are taking the easy option of blaming the Commission for their decision).
The applicant is not in a no-mans’-land in my view – he could either apply to the Commission for the documents and then sue or complain to the EU ombudsman, or sue the Danish administration for the refusal to release the documents or use any non-judicial mechanism available in Denmark to this end. In fact he could pursue the EU and national routes simultaneously.
The issue of access to documents in infringement proceedings is currently (in part) on appeal to the ECJ, in the case of API v Commission; Advocate-General Miguel Maduro will deliver his opinion in this case, as his parting gift to the world of EU law, at the end of September. API and the Swedes argue that the CFI was too conservative in denying access to the documents before the public court hearing, while the Commission argues that the CFI was too liberal, ie access to infringement documents should be denied for even longer (for 30 years, perhaps??). The most recent judgments of the ECJ on transparency issues (IFAW and particularly Turco) have been quite liberal. This case also indicates that the absence of rules on access to ECJ judicial documents could possibly, to some extent, be circumvented indirectly.
The issue is also on the table as regards a current proposal to amend the access to documents legislation, where the EP is taking a liberal view, the Commission is taking a conservative view, and the Council is split.
Finally, as regards the difference of administrative culture, it should be pointed out that while the EU position on openness is more conservative than the traditions of Nordic countries, it is probably more liberal than the traditions of some others.
#7 by Steve Peers on September 7, 2009 - 4:08 pm
I should add as regards MEPs’ pensions -there is a current case pending before the CFI as regards access to documents relating to aspects of this issue. (Case T-82/09 Dennekamp v EP).
#8 by Marcel on September 7, 2009 - 8:20 pm
Damien, the EU desperately wants your yes vote so it can use the Lisbon Treaty to destroy what’s left of parliamentary democracy and transfer the remaining powers of the elected national parliaments to the undemocratic unelected Commission (Politburo).
#9 by Damien on September 8, 2009 - 1:31 am
@ Marcel
The Irish Parliament is already weak. We have a very strong party whip. We have 166 TDs, yet once the government is formed, the backbenchers vote always with the government or risk disciplinary action.
Power is already concentrated at the executive(the cabinet). Its not much of a difference that they negotiate at the EU level.
The perils of our parliamentary democracy are worsen by the fact we lack a real opposition. If you consider shouting and mocking the Taoiseach or his ministers that seems to be the MO of the opposition.
#10 by Jean-Baptiste Perrin on September 8, 2009 - 2:19 pm
Marcel, can you explain us how staying with the Nice treaty is going to avoid what you just denounce. While the Lisbon treaty actually increase the powers of both the EP and national Parliaments…? I understand and respect Damien arguments, because they point at actual flaws and unadressed issues. But outright lying is not going to help in this debate.
#11 by Anna on September 9, 2009 - 12:36 am
You will be voting on exactly the same Treaty you voted “NO” to before. If the Treaty itself is changed, ALL the other 26 Nation States will have to vote again too. The EU dare not risk that because the people would insist on a referendum.
Ireland has already signed up to the SOFA Treaty, in the Official Journal of the EU, C 321/6 dated 31.12.2003. albeit with some clauses not applicable to them, The first paragraph reads as follows.
” “Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of tasks referred to in Article 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA) Brussels, 17 November 2003”.
That combined with article 188R in the Treaty make interesting reading. Article 188R, The Solidarity Clause. A new article which introduces a new and wide-ranging “solidarity clause” which compels the Member states to act together in the event of a natural disaster or a terrorist attack”, which we have always done-though by asking any sovereign state first if they would like assistance.
#12 by Patrick on September 9, 2009 - 4:18 pm
Yep, just like with Georgia and the Balkans. You’re missing the point of this provision which would serve more as a warning to a predator country thinking of attacking a Member State. It’s a principle common to NATO. Britain certainly made use of it in relation to the 2007 floods when over 160m euros was paid out by the EU.
#13 by Søren Wium-ANdersen on September 9, 2009 - 9:43 pm
Change of policy in EU?
19 March 2007 I received a letter from EC, Directorate – General, Environment
Subject: Your request for access to documents in the pending infringement cases against Denmark concerning the Birds and Habitat Directive
In the letter it was stated:
……The request concerns documents related to ongoing infringement procedures in cases related to non-conformity of national legislation with EC legislation. In accordance with our practice, the request has been granted to both the letters and the formal notice and to the replies from Denmark. The letters of formal notice are attached to this mail….
Is there anybody who can explain to me why the Directorate – General, Environment, in 2009 has refused me access to a follow up letter from the Directorate to Denmark in the same case?