Moves towards greater public accountability within the EU are gathering pace, with a Green Paper published by the European Commission on proposed changes to the EU's equivalent of freedom of information legislation. However, with slow development so far, and lacking a user-friendly enforcement mechanism, it seems that the EU's successful embrace of greater transparency is less than assured.

Public access to documents held by the Union's institutions is currently governed by an EC Regulation which allows any person to apply for access to public documents.  The most significant element of this is the use of the term 'public' documents. 

The Regulation was not intended to provide individuals with a right of access to documents held by the European institutions which are not classified as 'public'. There are several exceptions to the Regulation, the most frequently applied include information relating to the decision-making process; inspections and investigations (e.g. cartel dawn raids); and the interests of third parties involved in an administrative procedure (e.g. commercial interests).

Although the Regulation was intended to create a positive right – that is, access must be given unless falling within one of the exceptions – the Commission's statistics suggest that up to one third of all applications for information are turned down.  While the Commission notes that applications for information have increased by about 50 per cent each year from 2001, this is not necessarily being matched by a corresponding increase in the release of information.

The application of the Regulation, as with other regulations, has been shaped by decisions of the European Court of Justice and Court of First Instance.  These courts have set down the criteria for deciding when some of the exceptions apply.  The European Ombudsman also has a role in ensuring compliance with the Regulation. 
The Green Paper, Public Access to Documents held by institutions of the European Community, A Review, published in April 2007, forms part of the European Transparency Initiative which aims to increase the transparency and accountability of the EU.  The paper suggests reforms to the Regulation in a number of areas, such as introducing limitation on excessive or vexatious requests; increasing transparency in the legislative process; and improving the mechanisms for the dissemination of information via websites.

However, there has been criticism of the paper's approach, with commentators suggesting that it does not address the major stumbling blocks to transparency within the EU.  For example, as highlighted by Statewatch (an organisation that monitors the protection of civil liberties in Europe), the Green Paper does not address the power of Member States to 'veto' the disclosure of certain documents.

In many Member States, such as the UK and Ireland, domestic freedom of information legislation goes much further than the provisions of the European initiative.  When stacked up against the UK freedom of information regime – itself far from a perfect scheme – the European initiative appears limited at best, certainly not going beyond any standards of openness established domestically.  The Green Paper does little to address this imbalance.

Copies of the Green Paper can be accessed on the Commission's website at: ec.europa.eu/transparency/revision/docs/gp_en.pdf.  Consultation responses must be submitted by 15 July 2007.

Kelly Harris is a solicitor specialising in public law with UK law firm Shepherd and Wedderburn
0131 473 5382

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