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Transparency in Europe II Transparency in Europe II Public Access to Documents in the EU and its Member States Hosted by the Netherlands during its chairmanship of the EU Council The Hague, 25 and 26 November 2004 1 Colofon Publication Ministry of the Interior and Kingdom Relations Constitutional Affairs and Legislation Department P.O. box 20011 2500 EA The Hague Editors Mr. P.J. Stolk E. [email protected] Ms. Aida Tunovi´c MA E. [email protected] Mr. H. Kranenborg, University of Leiden Prof. mr. W. Voermans, University of Leiden Cover design European Commission Aeroset bv, Wateringen Ministry of the Interior and Kingdom Relations Lay-out Aeroset bv, Wateringen Print Artoos, Rijswijk ISBN nummer 90541 40925 2 Table of Contents 1 Foreword 5 2 Programme 7 Plenary Session I 9 3 Opening remarks by J.K. Wiebenga, State-councillor and former 11 member/vice-president of the European Parliament 4 Opening speech by Mr. Th.C. de Graaf, Minister for Governmental Reform and 13 Kingdom Relations 5 Paper and Presentation by Ms. van Bijsterveld, Professor at the Tilburg University 17 Workshops 6Workshop I: Transparency in the New Treaty 43 • Introduction by Mr. Cashman, member of the European Parliament 43 • Report of the discussion 47 7Workshop II: Public Access to Documents in the new Member States 49 • Introductory presentation by Mr. Tallo, Director of e-Governance Academy 51 • Introductory paper and presentation by Ms. Pirc-Musar, Commissioner 63 for Access to Public Information • Report of the discussion 83 8Workshop III: Public Access to Documents and Security 85 • Paper by Jakob Thomsen and Wouter van de Rijt, DG F and DG H 87 respectively, EU Council • Report of the discussion 101 9Workshop IV: Harmonisation of the EU and Member State Legislation 105 • Introductory paper by Mr. Driessen, EU Council 107 • Introductory presentation by Mr. Maes, European Commission 115 • Report of the discussion 123 3 Plenary session II 127 10 Speech by Mr. H. Brunmayr, DG Transparency, EU Council 129 11 Closing speech by Mr. Atzo Nicolaï, Minister for European Affairs 149 12 Conclusions by Mr. W.J.M. Voermans, Professor Public Law and Legislation, 153 University of Leiden 13 University Leiden Research 161 14 List of Participants 287 4 This book has tried to capture both the essence and the nuances of these debates by including the speeches, papers, presentations, short reports and an extensive research on access to public documents in the EU. I hope that the book has managed to echo the tremendous enthusiasm of the participants, especially of the speakers. I hereby thank them all for their efforts and there is enough material for the next phase of Europe’s quest for transparency namely, “Transparency in Europe III”. THE MINISTER FOR GOVERNMENTAL REFORM AND KINGDOM RELATIONS Thom de Graaf 6 Programme Transparency in Europe II Wednesday 24 November Arrival of participants and registration for workshops 19.00 – 21.00 Ice breaker cocktail at Dorint Hotel Thursday 25 November 2004 09.30 Arrival of participants and registration for workshops 10.30 Plenary meeting - Opening speech Mr Thomas de Graaf, Minister for Government Reform and Kingdom Relations 11.00 Break 11.15 - General introduction by Ms Van Bijsterveld - Questions and Answers 12.30 Lunch 14.00 Parallel session of Workshops 1 - 4 15.30 Parallel session of Workshops 1 - 4 17.00 Drinks 19.30 Transfer to dinner venue 20.00 Dinner at Scheveningen 7 Friday 26 November 2004 10.00 Reception with coffee 10.30 Plenary meeting - Opening speech DG Brunmayr 11.00 Parallel session of workshops 1-4 12.30 Lunch 14.00 Plenary meeting - Conclusions by Professor Voermans - Forum discussion with panel and participants 15.15 Closing speech by Mr Atzo Nicolai, Minister for European Affairs 15.30 End 8 Plenary Session I Wim Voermans: University of Leiden Sophie van Bijsterveld: Tilburg University Jan-Kees Wiebenga: State Council Hans Brunmayr: EU Council Michael Cashman: European Parliament Ivar Tallo: e-Governance Academy 9 10 Opening Remarks Jan-Kees Wiebenga The Genesis of the Regulation on Public Access to EU-documents The Regulation on Public Access to EU-documents came into force only after a very difficult process of law-making. In 2000 the European Parliament received a weak draft from the European Commission which was primarily based on existing practices. A proper regulation on transparency was deemed unacceptable at the time. With the ‘Solana Coup’ in the summer of 2000, the situation for transparency actually worsened. The Council of Ministers decided to declare virtually all Council documents secret with only a few exceptions. Thus, secrecy became the rule and transparency the exception. The EP changed the guiding principle of the draft-regulation decisively, however. Its main principle was amended to one which read: ‘transparency for all documents, with exceptions’. Nevertheless, the Council of Ministers, in a parliamentary hearing in November of that year, continued speaking about confidentiality of documents as a main principle in this field. The Council mentioned the problems of ‘transparency- shopping’ (referring to the practice of applying for confidential EU-documents in ‘open-minded’ member-states like Sweden) as another hick-up. No reference was made by the Council of the ‘Europe of the citizens’. The European Commission was not much better than the Council of Ministers in the beginning of the drafting period. The draft of the Regulation had hardly been discussed in the college. Indeed, many Commissioners regarded it as a bureaucratic matter. However after the first reading in the EP in November 2000 the scene changed. The European Commission eventually sided with the European Parliament in its struggle with the Council of Ministers. The latter maintained its secret diplomacy, its closed-door policy. In the final phase, the Parliament was lucky. With the Commission more or less on board, Sweden took over the EU presidency in January 2001. The EP and Sweden were able to reach a final compromise which led to the present regulation in May 2001. It was based on transparency as a guiding principle and was adopted in the second reading with a large parliamentary majority. 11 The story does not end here, however. It has only just begun. Indeed, the saying “the proof of the pudding in the eating” applies well to the story of public access to EU documents. The Present State of Affairs The Regulation has been functioning for three years now. We have an evaluation report on the table in front of us. We also have a new European Commission and 450 million European citizens who are entitled to good governance – also on the European level. These citizens are supported by the European Court of Justice, by the European Ombudsman and by a newly elected European Parliament with MEP’s from 25 Member States. We, as participants of this conference, have the task to think about the future of transparency on a European level. How about making “secrecy is the trade-mark of weak governance; openness is the trade-mark of good governance” our motto? I wish all of you a good conference! 12 Opening Speech by Thom de Graaf Minister for Governmental Reform and Kingdom Relations Ladies and gentlemen, Our citizens may vote for us but they don’t necessarily trust us. In the United States the expression: “to fight city hall” is synonymous with a frivolous effort or at best an uphill battle. In other places the words “politics” and “government” are associated with – let’s say the least – their own “rationality”. They are in any case not examples of openness or beacons of transparency. Government – the further away, the worse – is usually perceived as a closed black box. This is not something that we – modern politicians and civil servants – appreciate. On the contrary, apart from the moral aspects, we experience that the lack of trust is a serious impediment for effective and inspired government. Three years ago the Dutch government organized a conference about “Transparency in Europe”. Today’s conference is its follow-up. The backdrop of 2001 was the article in the EU treaty that stipulated that – within limits – documents of the Council, Commission and Parliament were to be public. That resulted in regulation 1049. It was a landmark. Now we have a constitution for Europe. In it, the public access to documents is extended. Citizens have the right to examine the documents of all the institutions, bureaus and organizations of the Union. This represents also an extension vis-à-vis what was included in the original Charter for Fundamental Rights. Public access to documents is now a fundamental right for the citizens of the European Union. And in this respect the Union is ahead of nearly all of its member states. Let’s hope that the good European example will be followed by its constituents. Ladies and gentlemen, Since that conference in 2001 10 countries joined our Union. Many of them passed – in the last four years – new laws concerning the public access to documents. In fact precisely in those recent member states we see new developments in legislation on the public access to documents. Old members, new members; we all need transparency and we need it, in order to involve – and serve – our citizens. 13 Their involvement is – after all – the determining factor in our democracies. We need transparency as well, to secure the integrity of public administration. This is reflected in the goals mentioned in the preamble of the recommendation of the Council about public access. Actually three goals are mentioned, that are interdependent. Firstly: public access gives citizens the possibility to form an opinion on the state of the society and on the authorities that govern them. And thàt will hopefully encourage them to participate in public matters.
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