Archive for category Acces to documents
Struggle for access to documents bears fruit after 11 years: Guest blogger Staffan Dahllöf, co-editor of transparency website Wobbing.eu, sums up the IFAW case.
German chancellor Gerhard Schröder asked EU-Commission to help build an airport runway in an environmental protected area outside Hamburg. Commission president Romano Prodi reacted “RAPIDAMENTE”, we know now.
Chancellor Schröder wrote in a letter to Commission president Prodi:
”I would be extraordinarily grateful if you personally could make sure that there is no legal objection issued from the Commission.”
The German leader was afraid the Commission would object to the building of a runway to an airplane factory in an area called Mühlenberger Loch. The area was protected by EU-rules for the conservation of wild fauna and flora.
Gerhard Schröder wanted to make sure the construction work could go ahead in spite of the protection. More than 4000 jobs are stake, only in the Hamburg region, Schröder wrote to Prodi.
On the letter from Schröder Prodi made a handwritten note in block letters: ”RAPIDAMENTE” (quickly) before passing the request on to his aids. (For a scanned copy of the letter, see Wobbing).
No national veto
The reason we now have access to the correspondence is a lengthy battle for transparency finally won in the European Court of Justice.
After more than eleven years a requested document was forwarded to the German organisation Internationaler Tierschutz-Fonds, an affiliation to the organisation IFAW (International Fund for Animal Welfare).
Scott Crosby, a lawyer representing the German NGO during the process, regards the final outcome of the IFAW-case as an important landmark.
”Member states do not have a right to veto disclosure of documents sent to the EU-institutions,” Crosby told participants at the conference Dataharvets+ in Brussels in the beginning of May.
Appealed to high level
The IFAW-case actually consists of two parts. First there was the legal battle to dismiss the argument that Germany could tell EU-institutions how to handle German documents.
At first the General Court (at the time the Court of First Instance) decided according to the German demands. This judgement was then appealed by Sweden, supported by Finland leading to a reverse decision by Court of Justice in 2008.
Member States ”may request” that their documents are not disclosed, but they do not have ”a general and unconditional right of veto”, the judges made clear.
Then came a second round.
To protect German policy
Germany and the Commission still did not want to reveal the lobbying letter, arguing the content should be hidden to protect ”the economic policy of the Community or a Member State”, a reason to refuse disclosure laid down in the access rules for EU-institution (Regulation 1049/2001, article 4.1 a third indent).
This argument was first accepted by the General Court, but then appealed and later set aside by the Court of Justice
The reason why?
The General Court had not itself read the disputed document!
The lower chamber was therefor ”not in a position to assess in the specific case whether access to the document could validly be refused”, the higher instance dryly remarked.
Operation succesful, the patient died
Then did the German NGO finally get the requested document? Yes they did, some one and a half year later. Things have a tendency to take time in matters like this.
All in all, transparency won and the attempt to hide Gerhard Schröder’s pressure letter failed.
Only catch is that the process took eleven years.
The controversial runway was built in the mean time.
Neither Gerhard Schröder nor Romano Prodi holds their official positions any longer.
The documents of the Court can be found here.
All 13 Danish MEPs will vote to prevent an MEP candidate from becoming new EU Ombudsman in two weeks. Former Danish Ombudsman Hans Gammeltoft-Hansen joins choir of critics.
Each of the 13 Danish MEPs will vote to prevent an MEP from winning the election for new EU Ombudsman next plenary.
The Danish MEPs fear that the institution will lose trust among citizens as well as journalists, if a candidate goes directly from being an MEP to taking office as EU Ombudsman, writes Danish magazine Journalisten.
There are six candidates for the post. Three are MEPs. They are running against e.g. the Irish and the Dutch national Ombudsmen.
“It is a scandal,” says Danish Green MEP Margrete Auken.
“This is the same as if a long-serving member of the Danish Folketing was elected Ombudsman in Denmark. This would never ever happen,” she says to Journalisten.
Some of the Danish MEPs who are voting for independent candidates do have candidates from within their own political groups. This goes for the five Danish Social Democrats, the one Danish conservative, and the right-wing Morten Messerschmidt.
But neither will vote for their own group candidates.
“We think it is a good tradition that the Ombudsman is 100 percent independent,” says MEP Dan Jørgensen (S&D).
“It has to be a non-political institution. I do not really think you can accuse the political candidates of anything, but it is the wrong signal to send,” says MEP Bendt Bendtsen (EPP-ED).
All other Danish MEPs also vote for independent candidates, Journalisten writes.
“This is preposterous, and I cannot even understand how it came to this. To make the Ombudsman part of the political battle of seats is a total misunderstanding,” says MEP Morten Løkkegaard (ALDE).
The former Danish Ombudsman, Hans Gammeltoft-Hansen, has also voiced his concerns. On Danish Broadcasting’s P1, he said:
“I really hope that a majority in the European Parliament will choose a person, who appears independent – which is hard, not to say impossible, if you go straight from a long and heavy political career.”
On the other hand, many MEPs also defend the election of an MEP as Ombudsman. In a number of internal e-mails from Parliament, which Journalisten cites, the debate goes both ways.
Who else can be better qualified for this job to understand citizens’ concerns than a former parliamentarian?” writes MEP Doris Pack in one e-mail to colleagues.
“If MEPs cannot be an Ombudsman politicians shouldnt be Commissioners, High Reps or Presidents of the Council as they also deal with governments from different political families as well as issues derived from their sister political parties,” writes MEP Charles Tannock in another.
Is it the Nordics against the Southerners in the fight for more transparency in the EU? Is it old-fashioned bureaucracy against modern administration? Is it power structures against the citizens?
The fight for more transparency in the EU seems stuck after the Danish presidency gave up on finding a solution for new access to documents rules, among connoisseurs known as 1049/01.
Finnish MEP Anneli Jäätteenmäki in a comment on Wobbing.eu sums it up like this:
The Danish Presidency lacked a real political will to push the revision forward this spring. It was not the Presidency’s political priority at all.
The Commission kept its negative attitude in the negotiations. It was not willing to try to find real compromises. It did not move even one centimeter forward in the negotiations. Instead, it was just requiring more restrictions and exceptions.
The European Parliament negotiating team lead by Rapporteur Michael Cashman was working hard in order to find an agreement. It was ready to compromise but not to take steps backwards in the name of transparency.
Jäätteenmäki argues, that after the collapse of the negotiations under the Danish presidency, the European Parliament should go ahead with an initiative and introduce more openness on the lawmaking procedure. She suggests making public all votes in the committees and plenaries, making public the minutes of the coordinators meetings, and making public the documents from the trialogue meetings.
These are excellent first steps – but aren’t they self-evident in a modern democracy? Good wind, as the wish goes in a sailing nation like Denmark, to the suggestions of Ms. Jäätteenmäki!
This would be a big step in the proactive openness within the EU. However it does not solve the problem of the stranded 1049 reform lingering in legislative nowhere-land. And it does not solve the obstacles or even obstructions to transparency, that journalists and citizens experience on an every day level: access to documents requests that are not answered, access to documents requests that are delayed and delayed again, access to documents requests where existing documents allegedly are not available. This combined with a comparably slow and potentially costly procedure to complain must discourage most of the citizens and many of the time-pressured journalists.
In whose interest?
“Citizens deserve better” writes Jäätteenmäki in her open letter. And in May 2012 two other Nordics, the ministers of Justice of Sweden and Finland, appealed to find “True Friends of Transparency” in another open letter published at Wobbing.eu.
So this must be the time to start over again. Citizens do indeed deserve better. Time to start from scratch with a bill that fulfils the Lisbon Treaty’s requirement for more transparency, includes best practice from open countries such as the Nordics and the United Kingdom, includes experience from those, who actually use the legislation on behalf of the citizens and in favour of transparency such as NGOs, lawyers and journalists.
We are, of course, looking forward to the European Parliament to improve its own practices. But we – the journalists on behalf of our readers, listeners and viewers – also hope for the European Parliament to call upon the Commission to write up a new, acceptable draft for the reform of 1049/01 and from the very beginning of the procedure to include the relevant users of the law.
In the meantime – and in the future – the task is also with the citizens and the journalists on their behalf. Because transparency belongs to us all. It’s not citizens against bureaucrats. It’s about taking care of our democracy: Transparency is a task for all of us!
The final volume of the trilogy In the Name of the State was published on 19 April 2012. Entitled ‘Prikrivanje’, Cover-up, it deals with the abuse of political and legal power of leading Slovene politicians around the time when the country gained its independence. Today’s guest blog by Rafael Njotea of Journalismfund.eu
Journalists Matej Šurc and Blaž Zgaga spent more than three years investigating and analysing more than 6000 pages of declassified official documents on the trade of arms in Slovenia during the Yugoslav Wars. They obtained the documents through the Slovene Freedom of Information Act. Journalists from six other countries cooperated in cross-border investigation. The research was co-financed by a Journalismfund.eu research grant.
The findings of the investigation are chronicled in the trilogy In the Name of the State, of which the last volume has now been completed. The first volume, published in June 2011, focused on the sale of arms and ammunition from the former Yugoslav People’s Army’s warehouses, which were seized during a ten-day military conflict in Slovenia in 1991. It was called ‘Odprodaja’ or Sell. The second volume, ‘Preprodaja’ or Resell, appeared in October 2011 and dealt with the purchase of arms abroad and subsequent resale to Croatia and Bosnia and Herzegovina during the UN arms embargo.
The third and final volume, ‘Prikrivanje’ or Cover-up, describes how the arms smugglers managed to keep their activities largely concealed for the last twenty years. It starts by bringing to light the conflicts between the Ministry of Defense and the Ministry of Interior after the Brnik scandal, in which 460 tons of arms, designated for resale in Bosnia and Herzegovina, arrived to Slovenia only to be stored at Brnik airport for months due to problems with the intended resale. Afterwards, the book examines the three parliamentary inquiries on the arms trades that were initiated over the years and the intrigues and obstacles that politicians put up to thwart them. The last of these parliamentary inquiries was triggered by the biggest arms deal in the history of Slovenia – a 278 million EUR purchase of the Finnish armoured vehicles Patria that was concluded in 2006. The Patria case is under investigation in Finland, Austria and Slovenia. Two dozens of suspects are on trial for bribery and industrial espionage, one of them being the former and current Prime Minister of Slovenia, former chairperson of the Council of the European Union in the first half of 2008.
With the publication of this third volume of the trilogy, the research project has reached its final stages as one of the most significant investigations in Slovene history. It uncovered some of the country’s hidden chapters had been kept under veil the past two decades.
Read about the previous books in the series and reactions to them here.
More than 130.000 people were killed during Yugoslav wars in the 1990ies. On the other side millions dollars of war profits have been earned with sending thousands tons of weapons and ammunition to the battlefields.
Last week the second book of the trilogy In the Name of the State was launched in the Slovene capital Ljubljana. It is called Resell and documents how the UN embargo against weapon sales during the Yugoslav wars was broken. The authors found leads to countries like Bulgaria, Poland, Ukraine, Romania and Russia as export countries, logistic headquarters in the Austrian capital Vienna, financial transactions via a Hungarian bank and transfers via off-shore haven Panama. Also the United Kingdom sent military equipment to then Yugoslav republics and provided loans for arms purchases, as did Germany, the authors found based upon studies of thousands of declassified documents and cooperation with journalists in several countries. The access was obtained through the Slovene freedom of information act.
It is a widely accepted theory that Balkan nations are responsible for the bloody disintegration of the Yugoslav federation. But evidence presented in the books indicates that some European countries may have been actively involved in the wars with supplying arms and ammunition to the warring parties. The books describe in detail and based upon port reports, cables, receipts and various other official documents the routes of the weapons and the money.
More than a dozen of ships loaded with contraband arms secretly arrived to the Slovene port of Koper in 1991 and 1992, where they were unloaded and cargo was quickly forwarded to battlefields in Croatia and Bosnia Herzegovina. Military and civil intelligence services appear to have been involved in the clandestine operations according to signed and stamped documents, cables and orders obtained by the team. Also Italian, Albanian and Russian Mafia seem to be linked to some actions.
Along with his colleague Matej Šurc, Slovene journalist Blaz Zgaga spent more than three years investigating and analysing thousands of declassified official documents, that were obtained through the Slovene Freedom of Information Act. Journalists from six other countries cooperated in cross-border investigation.
The work already has lead to the award of the special investigative journalism diploma by the CEI SEEMO Award to the Zgaga-Šurc team.
In the trilogy of books the team meticulously describes the routes of smuggling and money transfers [Link to journalismfund article] as found in the released documents. During the recent Global Investigative Journalism Conference in Kiev Zgaga provided further insights into research method and findings, many of which lead to other countries and invite to further research in those countries.
The first strategically important shipment arrived to Slovenia from Bulgaria in June 1991, only a week before the first military clashes in former Yugoslavia. The Danish vessel according to the information obtained appears to have been loaded with five thousand assault rifles, millions of rounds of ammunition, and the most important, anti-aircraft and anti-armour missiles, worth 7,8 million German marks. The shipper according to the documents obtained was Bulgarian and the middlemen an Austrian company. Almost simultaneously a British company sent modern military radio stations with encryption capabilities to Slovenia in a deal worth five million pounds, the team of journalists found.
After this success a main arms dealer stepped forward in the summer of 1991. The Greek citizen appears to have used a company registered in Panama with offices at Vienna airport as one of the main channels for smuggling arms to Yugoslav fronts. Debit-credit notes of a bank account opened at a bank in Budapest reveal the company received more than eighty million dollars revenues from Slovene, Croatian and Bosnian customers, according to the authors of the book.
The authors obtained documents that further link the arms trade during the embargo to a Polish state owned company, including the code name of the contact person and the alleged amounts of the transfers that indicate a Polish port as starting point for ex-Soviet army ammunition supplies’ journey to the Adriatic Sea.
The tale of the documents continues to focus on shipments from a Ukrainian port. The declassified documents reveal that the first two shipments passed through the Slovene port of Koper. The ship made two journeys and sailed 96 containers with arms in October and November 1992. All were transported to Croatia by roads. Debit-credit notes confirmed that 60 million dollars were paid by Croatian customers for arms obtained through this channel, and that about 40 millions dollars has been transferred further to sellers of arms.
The last ship of eight was halted by the NATO fleet in Adriatic in 1994, then a trial in Italian city of Turin followed, but all were later acquitted at the court. The obtained documents show that the person, whom the Turin prosecutor assumed to be the leader of the group, sold hundreds of Russian anti-aircraft and anti-armour missiles worth 33,3 million dollars to Slovenia in 1991 and 1992. He offered even modern mobile anti-aircraft system SA-8 Gecko in January 1992, but this deal was cancelled. Several other Russian connections surfaced in the documents.
The first book in the trilogy was published by the Sanje publishing house in June 2011, the 2nd last week and the last will be published in the winter.
The book has been widely debated in Slovene media, where arms deals also surfaced on the political agenda involving the then prime minister as late as 2009.
A selection of the Slovene media picking up the story:
Also EU-applicant neighbouring countries there was significant media coverage, including reports about new revelations in EU-candidate countries. Read more on the website of Journalismfund.eu.
London based journalist Annamarie Cumiskey was so enthused about a meeting with young Spanish data journalists at a recent seminar, that she offered a guest contribution to the Watchdog Blog. Here it comes.
In the past three weeks I have been a victim of theft three times in three different cities. My home was burgled in London; my bank account was hacked into in Kiev and a man behind a deli counter in Madrid ripped-me off over some ham and cheese. The ham and cheese was the last straw.
While on a visit to Madrid to promote data driven journalism I happened to buy some fine Spanish ham and cheese to take home. The man behind the deli counter wanted €34 and I handed it over not knowing how to complain in Spanish. The receipt was not transparent; the items were not broken down properly. €34 for a few slices of ham and cheese and a dodgy receipt, as far as I could see, translated into a rip-off.
Armed with the receipt I complained to my hotel receptionist, who complained to the municpal police, who duly turned up at the shop, where the deli man’s face turned pale and made him give me back my money. In Spain it’s against the law to give someone an ambiguous receipt. They take transparency seriously in Spain.
So why does Spain not have a Freedom of Information Act? It’s the only country in the EU with a population over 1m that has no FOI. These days FOI is seen as a human right one that should sit alongside free speech in a modern European democracy. It should even be made one of the conditions of EU membership.
In the run up to November’s election both main parties have promised to introduce FOI if elected. But, why has it taken so long? Like the man behind the deli counter are Spanish politicians afraid of being found out?
There’s a willing “police” to make sure any FOI law is respected – a group of data driven journalists and FOI campaigners championed by Pro Bono Publico and Access-Info Europe. The next time I want to buy some ham and cheese in Spain I’m taking them with me.
These are the organisors of the seminar:
Pro Bono Publico promotes FOI and data driven journalism in Madrid
Access-Info Europe supports FOI campaign in Spain
The EU Ombudsman Nikiforos Diamandouros confirms the Lisbon treaty, the European Medicines Agency respects that: The right of access to information held by the authorities is a fundamental right in Europe. In the most recent case this has a concrete result: Patients now can request access to information about side-effects of their medicine.
Imagine your teenager being embarrassed about pimples. A certain pill is advised for help. But what if exactly the same pill causes your child to be depressive, even suicidal? Would you want to know? Should the public know?
This is the core of the question of a request for access to information held by the European Medicines Agency EMA. For year this has been kept secret in most EU countries, though it is patients’ only option to keep track on side-effects after a drug is on the market.
For years the EMA too refused access, but following a decision by the Ombudsman in April, it now decided to make accessible the so-called “adverse reaction reports” on the anti-pimple medicine Roaccutane, which for years has been under suspicion for its severe side-effects.
“I commend EMA’s constructive approach in this important case,” said Nikiforos Diamandouros, the EU-Ombudsman upon the EMA decision. “EMA’s work has a direct impact on the health of European citizens. It is, therefore, crucial to give the widest possible access to documents and to pursue a pro-active information policy for the benefit of citizens.”
The case was brought by an Irish man, whose son committed suicide after taking Roaccutane, is currently suing the pharmaceutical company Roche over the drug, which has been linked to behavioural problems and birth defects, according to the EUobserver.com.
For those, who want to use the EU rights of access to information the case is interesting not only because the Ombudsman confirms access as a fundamental right, but also for several other details. Read a practical analysis on Wobbing.eu.
Do we really want to transfer million-euro subsidies to individual recipients in the agro-industry? The latest publication of who got what from the EU farmsubsidies proved that the number of subsidy-millionaires has risen significantly. And right now is the perfect time to talk about it, because right now the future of this money-transfer is being debated.
Each year tax-payers send about €55 billion of to the farming industry, to rural areas and to price-correcting measures for food prices. It is called the Common Agricultural Policy, and it is one of the core businesses of the EU. The reform of this policy has to be finalised before the new budget period decision 2013, so major steps are prepared right now.
Do we, journalists, support the idea of an informed public debate? If yes, we should try to contribute by giving information about this money to the public. And as European public debate goes, we should network amongst each other and then address each our target group.
The current farmsubsidy beneficiaries will – logically – try to keep getting money. New players may try to get hold of money for their purposes. Big landowners and agro-business unite to promote food security and the environment. The commissioner of the environments wants to “green” the policy. Green organisations argue for water protection, development organisations and liberalists against dumping of EU dairy products. And so on – a good auld political debate. Fine.
And even much more important to know, how the money is distributed now.
This week a team of journalists and computer programmers from many European countries met on the initiative of the team behind www.farmsubsidy.org. We ‘locked’ ourselves into a room in Brussels for almost two days. Loads of coffee, tea, sandwiches – and of course wireless internet. The common aim: To analyse the data to find stories for each our readers and viewers. And more importantly: to network in order to find the European or cross-border aspects of the material.
For a start we could present the annual list of top-recipients. Predictably dominated by sugar companies, who are still receiving large amounts because of the latest CAP reform on sugar.
We also have a preliminary list of farmsubsidy millionaires.
Then we have the usual list of anecdotes, including money to an accordion club in Sweden, a skating club in the Netherlands and a billiard club in Denmark. Did anyone mention farmsubsidies? For more details see the harvest-festival-press-release by the Farmsubsidy.org team of May 4th.
So in other words: Back to the old saying of English language journalists: Follow the money. After all: € 55 billion per year is worth journalistic coverage. And a public debate.
April 26th, DPA/Spiegel, Germany, Weapon Industry receives farmsubsidies from the EU (full DPA text quoted by Greenpeace)
May 3rd, Euobserver, Brussels, UK delays publication of EU farm subsidy details till post-election
May 3rd, Maskinbladet, Denmark, Sugar barons reap farmsubsidies
May 4th, Vest.si, Slovenia, The list of 100 largest recipients of farm subsidies
May 4th, Guardian, Britain, EU sugar and dairy companies largest recipients of farm subsidies
May 4th, Landbrugsavisen, Denmark, Prince Joachim and Mærsk get EU subsidies
May 4th, Die Presse.com, Austria, 178 million for French sugar corporation
May 5th, Euobserver, Brussels, Bulgarian minister’s daughter, accordion club get EU farm aid
May 5th, Trud, Bulgaria, 1,5 million EU farmsubsidies to daughter of a former Deputy Minister
May 5th, 24 Casa, Bulgaria, Daughter of former deputy minister gets EU farmsubsidy
May 5th, Politiken, Denmark, Prince Joachim gets 1,9 million Danish Crowns from the EU
May 5th, N-TV, Germany, For dead Swedes and surf schools – strange farmsubsidies
May 5th, Bild.de, Germany, Bavaria gets most EU farmsubsidies
May 5th, Agrarheute.com, Germany/Britain Farmsubsidy legt Analyse der europäischen Zahlungsempfänger vor
May 5th, Farmers Guardian, Britain, Civil servants criticised for withholding CAP data
May 5th, Finfacts, Ireland, Number of EU Agricultural Policy mmillionaires raises by 20 % in 2009
May 5th, Guardian, Britain, Who received EU farm subsidies last year? Whitehall won’t say
May 5th, Financial Times, Britain, EU pays subsidies to sugar groups
May 5th, Euractiv.de, Germany, EU-Farm-money: Topincome, lacking transparency, corruption
May 5th, N24.de, Germany, Farmsubsidies for billiardclubs, footballplayers and the death
May 5th, Telegraph, Britain, Accordion players and ice skaters get EU farm subsidies
May 5th, Journalul.ro, Romania, Bizarre beneficiaries of EU agricultural funds
May 5th, Ervhervsbladet, Denmark, The Prince and Mærsk get million-crown subsidies
May 5th, Nordjyske, Denmark, Joachim and Mærsk get their share
May 6th, Týden, Czech Republic, Farmsubsidies to the daughter of the minister and ice skating
May 7th, Die Welt, Germany, Blessed are those who receive
May 7th, Eesti Ekspress, Estonia, EU bought for 85 million kruuda butter and skimmed milk
May 9th, Danish Radio P1/European Magazine, Who’s become a millionaire on EU farmsubsidies
May 9th, Agrar Hirek, Hungary, Hungary ranked first in transparency rating of NGO
May 10th, 24 hours, Bulgaria, More farmsubsidies – 1.6 million to the wife of the deputy minister
May 10th, Trud, Bulgaria, And the wife of deputy minister gets 1,6 million farmsubsidies
May 11th, Vest.si, Slovenia, Agricultural subsidies for the Red Cross Slovenia, the Ljubljana Archdiocese and Caritas
May 12th, Farmers Guardian, Britain, More farm subsidy millionaires than ever
May 12th, Farmers Weekly Interactive, Britain, RPA payments create 27 subsidy millionaires
May 13th, Trud, Bulgaria, Prosecutors investigating Peythevs daughter
May 13th, Trud, Bulgaria, Investigate the daughter of former deputy minister
May 14th, Time Magazine, USA, Even in Hard Times, E.U. Agricultural Subsidies Roll On
May 15th, Yorkshire Post, United Kingdom, Exclusive: £1,700 bureaucracy bill to get 1p subsidy cheque to farmers
May 19th, Vest.si, Slovenia, Analysis of EU farmsubsidies distributed in Slovenia
May 29th, Agencia Latino Americana de Informacion, Stiglitz’s lesson regarding the FTA with the European Union
May 21st, Capital Weekly, Bulgaria, Problems in agricultural programs and regulations – and morality
May 30th, Euro.cz, Czech Republic, Who eats an EU grant
June 1st, Mayo News, Ireland, Mayo receives €119m from CAP
June 17th, Guardian Comment, United Kingdom, CAP provides another bumper payout for landowners
July 5th, Guardian Editorial, Common agricultural policy: rotten but here to stay
An obvious question for the incoming commissioner of agriculture tomorrow is about who gets the EU farmsubsidies, and who uses them for what. In other words a question by the Budget Control Committe (last question page 3). Why?
In order to make a good plan for the future, we should have a good picture of the current situation. What looks so obvious still is a difficulty when it comes to the EU farmsubsidies. Tomorrow’s questioning of the incoming commissioner for agriculture, Mr.Dacian Ciolos, is the perfect place to ask, how he intends to do move this large part of EU policies towards a new policy without full transparency.
The necessary information will get out eventually. However if the Parliament, journalists, the general public have to waste time on getting out data, there simply will be less time for the relevant debate. Also previously the data got out eventually, se for example why and how the Farmsubsidy team did it here.
Mr. Ciolos will have to draft “proposals for the future of the common agricultural policy in the post-2013 programming period,” according to the letter by president Barroso and to “promote a more competitive EU agriculture in an open world trade environment.”
The drafts – according to Mr. Barroso – should be “based on a comprehensive ex post evaluation of the value added and functioning of the current policy and on the results of the 2008 Health Check.” Thus the wish of Barroso.
The first and important step on the way is to allow not only the Commission but also the Parliament and the European public to be able to make this analysis.
The Budget Control Committee asks, whether the Commission is ready to publish “a list of all beneficiaries of all forms of EU funding on a single, easily accessible and user-friendly database”. This questions should, of course, be asked with a special emphasis to one of those commissioners with the largest budget post under his responsibility.
And he should be asked this question eventhough the outgoing commission has introduced partial transparency on farmsubsidy payments. Unfortunatel the published data are still very rough and thus of little use other than to ignite envy. How can the public – for example – get an impression of the effort for the environment via farmsubsidies, when only the name of the recipient and the amount received is public, but not the budget line, for which the money was granted? How can anyone get a decent preparation for the second task of Mr. Ciolos, namely preparing the EU agriculture for a competitive world trade environment, when we only know the EU support structure for exporting agricultural products for a few member states?
Granting transparency is not a problem. The technical means nowadays are all there, and the Commission holds all necessary data in one central database. Allow the European parliament and the European public to make enlightened decisions, when something as important as the future of the common agricultural policy is on the agenda.
The information must get out and usually will. But the easier the access to information is made, the more focus can be on a constructive debate.
The ‘presumption of confidentiality’ between EU institutions and their contacts can not be used anymore to reject access to document requests, if the European Court of Justice follows yesterday’s opinion by the General Advocat on the ‘Bavarian Lager’ case in its entity.
Given the fact, that the European administration is marred by a clash of administrative cultures when it comes to access to information, this could become a big step in favour of more transparency, if the court adopts the argument of the General Advocat.
European administration is – like Europe – a colourful mixture of different traditions. Sweden – to mention the frontrunner – has had a freedom of information law since 1766, and generally the Nordic countries plus Britain, Ireland, the Netherlands, Slovenia and others consider information held by the public administration public information – with the usual exceptions to protect privacy, security and so on. However classic continental administration until recently completely followed the opposite idea: Officials thus had to protect documents, also protect them against the public. The ‘presumption of confidentiality’ or the German ‘Amtsgeheimnis’ or ‘Amtsverschwiegenheit’ are expressions of this approach. Abolishing them constitutes a revolution in some administrative traditions. Which does, of course, require a change of mindset for the officials who have been educated within these administrative traditions.
Will the European Court of Justice manage to push this revolution in the European administration? With this option in the upcoming decision in the Bavarian Lager case grows more and more interesting.
The case used to be about Bavarian beers back in the 1990ies. Since then it has turned into a prominent case about transparency, access to information and protection of personal data. If the European Court of Justice follows the opinion of the general advocate published yesterday, European institutions in the future will have to notify their contacts, that their names can be revealed to the public under the access to documents regulation.
“The principle of transparency requires that the Commission should inform such outside interlocutors that their presence at any particular meeting will be made public to the extent to which documents are disclosed in accordance with Regulation No 1049/2001. It cannot invoke a supposed ‘presumption of confidentiality’ (to which the Commission baldly refers in its appeal) in order never to disclose their names.” (recital 200 of the opinion).
The Bavarian Lager case tries to find a balance between the public’s right to information and the protection of personal data. General advocate Eleanor Sharpston applies a highly systematic approach, so that the choice of law – access to information or protection of personal data – should depend on the reason why the information is held. Thus she makes a distinction between “ordinary documents that contain an incidental mention of personal data” and documents that “contain a large quantity of personal data (for example, a list of persons and their characteristics). The raison d’être of (these) documents is, precisely, to gather together such personal data.” (recital 159).
The Bavarian Lager case is followed closely, as it is considered a key-case on the question into the protection of personal data when releasing documents to the public.
In her opinion the general advocate gives a step-by-step introduction on how to deal with such cases, which appears to address exactly the insecurity that currently is connected to the question (recitals 158-166).
Eleanor Sharpston also chooses to respond on the question, whether the institutions – in this case the Commission – should be allowed to withhold names from the public in order to protect investigations.
“In summary, the Commission argues that the interpretation in the judgment under appeal takes no account of the need for the Community institution to guarantee, in certain circumstances, confidentiality for persons providing it with information in the course of its investigative activities. Without that power to cloak its sources of information with secrecy, the Commission risks losing an essential working tool for conducting its inquiries and investigations. I do not agree with the Commission.” (recitals 196-197).
Here it is important to note, that she also mentions the timing of the investigation – important not only in the Bavarian Lager case but also in the upcoming reform of the EU access to documents regulation. “No investigation was pending or, indeed, even recently concluded.” (recital 200).
Though the Commission should inform contacts of the access to information regulation, the general advocate recognizes the need to promise anonymity “in certain very specific circumstances.”
Once the court will have made its decision, the Bavarian Lager case must be expected to be of weighty importance for the future of public access to documents in the EU.
Until the Court will have spoken, the rules are defined by the Court of First Instance judgement in the Bavarian Lager case, the guidelines by the European Data Protection Supervisor and the analysis by the European Ombudsman.