Well Into the Third Act: The Way Forward on Public Access to EU Documents

By Maarten Hillebrandt

  Public Access to Documents in the EU, by Leonor Rossi and Patricia Vinagre e Silva, (Oxford/Portland, Hart Publishing, 2017, ISBN 9781509905331); xxxviii + 340pp.; £49.00 hb.

Access to EU Documents: A Policy in Three Acts

On 7 February, the EU celebrated a remarkable anniversary. Exactly twenty-five years ago on that day, the Heads of State and Government (HSG) of the European Community’s then twelve Member States took the bold leap forward by signing the Maastricht Treaty. Another leap forward lay tucked away in one of the Treaty’s accompanying texts, even when the Member States’ representatives did not realise it at the time of signing. Declaration 17, attached to the Maastricht Treaty, recognised the positive relation between transparency and democracy, and professed an intention to take steps to advance such transparency. Thus began the First Act of a transformative development called Access to Documents.

In the years that followed, much ground was covered. Under the pressure of public opinion, the declaration turned out to have more bite than the HSG had envisaged. In an attempt to defuse the crisis that emerged after the Danish rejection and French near-rejection of the Maastricht Treaty, Declaration 17 went from a European Council statement to a Commission report, and from a Commission report into a code of conduct, which eventually led to internal decisions on access to documents adopted successively by the Council (1993), the Commission (1993) and the European Parliament (1997). Less than two years after a hortatory political declaration in a footnote of a treaty, EU access to documents thus entered into its Second Act.

During the Second Act, it became possible for access to documents applicants to litigate, hence opening the door to a body of case law that began to accumulate at the rate of a few judgments per year. By the time the Intergovernmental Conference (IGC) began to negotiate treaty revision, a number of the court’s doctrinal developments had settled. As a consequence, the Member States were now ready to acknowledge openness as a legal principle in the Amsterdam Treaty, and to give access to documents a separate treaty base that paved the way for the replacement of the institutions’ three internal decisions by a legislative act, Regulation 1049, which was adopted on 30 May 2001.

Thus began the long Third Act which lasts until today. It also marked a decisive normalisation of access to documents, both in a legal sense and in a social and institutional sense. In a legal sense, many issues of the public’s right of access, including those concerning documents submitted by Member States, or the extent of administrative burden that was to be expected from the European institutions, were largely settled in the now rapidly proliferating case law. Meanwhile, the access right’s constitutional overtones were suggested by three developments: the incorporation of a right of access in the Charter of Fundamental Rights of the European Union (article 42) in 2000, the EU’s accession to the Aarhus Treaty and subsequent adoption of the Aarhus Regulation on Access to Information (Regulation 1367/06) in 2006, and increasingly explicit references to transparency’s auxiliary role in facilitating the democratic life of the Union, most notably in the Access Info Europe and In ‘t Veld v Council case law. In a social and institutional sense, the notion of transparency became increasingly publicised, leading to growing application and access rates over time. This was not in the last place due to the institutions’ improving administrative capacity and familiarity with the subject of transparency. In spite of various actors’ –not in the last place, the Member States’– multiple misgivings with the way that Regulation 1049/2001 has played out in jurisprudence and in institutional practice, the legislation thus proved to be a remarkable resilient lock-in compromise. This is demonstrated by a long-drawn revision process that will soon enter its tenth year with no outcome in sight.[1]

Relevant and well-timed

The dual anniversaries of EU access to documents (twenty-five years since Declaration 17 and ten years of legislative deadlock of Regulation 1049/2001) provide a timely occasion for a new book on its legal intricacies. In Public Access to Documents in the EU, Leonor Rossi and Patricia Vinagre e Silva, respectively professor of EU law at Lisbon’s Nova School of Business and Economics, and lawyer in the field of EU administrative law, set out to analyse, systematise and contextualise the more than 200 judicial disputes emerging out of requests for access to documents of the EU institutions. This is, as the authors directly concede, a ‘Herculean task’ for any mere mortal (p. 2), and consequently an endeavour that a priori commands commensurate respect. Nevertheless, they succeed in covering all of the most important doctrinal developments in only 270 pages and 8 chapters, adding many interesting legal points for thought and consideration along the way.

Public Access to Documents in the EU is not the first overview of EU transparency law. Monographs by Curtin (2009) and Driessen (2009, revised version 2012), and dissertations by Buijze (2013) and Hillebrandt (2017) have considered EU transparency respectively from the perspective of executive power, institutional law, legal principles, and policy making.[2] Yet the book fills a clear gap by making the access case law the explicit focus of its analysis, and proceeding with an approach that is generally well-structured and thematically rich. As such, it provides a tremendous contribution that covers an impressive amount of ground.

The authors make great work of dissection the ambiguities in successive legal texts governing the right of access. In a systematic manner, the chapters address the main points in law related to the rights-bearer and duty-bearer, the nature of and exceptions to the duty, and legal remedies. Beyond this logically prudent structure, two ‘wildcard’ thematic chapters are devoted to the issue of administrative silence and a political science-like excursus into the behaviour and motives of the access policy’s actors: Member States, institutions, and third parties.

Meticulous to a fault – but to what effect?

In an introductory chapter, the book’s central argument is set out, which is that the right of access has grown remarkably in scope (which the authors describe as ‘width’), yet to limited results in terms of enforcement (‘depth’). This point is convincing, given the fact that, as the authors point out, the jurisprudence lacks finality in a very real sense: in access to documents cases, EU courts cannot serve the institutions injunctions to disclose documents that are subject of the judicial dispute (pp. 7-8). Instead, the courts can only review the merits of institutions’ concrete legal interpretations of the access rules in the implementation practice, sometimes upholding it, sometimes striking it down. In spite of access’ accompanying ‘width’, the right of access to documents is introduced as an unknown legal object, a rare beast to both the institutions and the public. As the authors argue, “…what exists in the EU is a certain form of access. That is very different from saying that in the EU access exists, and that it has been normatively laid down under a certain form” (p. 41). The authors do and don’t have a point here. Clearly, the EU transparency framework has developed in an idiosyncratic and institutionally embedded manner. But does that not apply to all freedom of information acts? Surely, the 2,342 applicants who in 2016 requested access to 10,232 documents in the Council alone were more concerned with the content rather than the form of their access rights. Yet the book’s focus on litigation means it is somewhat out of touch with broader EU transparency trends, for example overlooking developments in proactive disclosure on online registers. Indeed, differently than the authors suggest about access to documents (p. 2), here access has become increasingly easy, generous, and widely used.[3]

The next chapters (2-5) do a very thorough job at addressing various points of law. Chapter 3 example points out that while a trend is noted towards an ever-wider inclusion of EU bodies, culminating in its extended application to “all bodies, offices, and agencies” of the EU –a move which the authors curiously describe as “paternalism” (p. 78)– it remains up to the applicant to find out how and to what extent these bodies’ documents are legally included under the general right (p. 71). Additionally, it would have been interesting here to read the authors’ view on the unaddressed question whether the scope broadened by article 15(3) TFEU produces direct effects, or is conditional to a legislative act. In other places, the reconstruction becomes exhaustive to the point of excess, such as when it is held that at first instance, the EU institution of which documents are requested is always defending parties. Occasionally, observations also seem relatively trivial, such as that the ‘no-reasons rule’ (which the authors believe makes the scope of beneficiaries “implausibly generous” and places a “prodigious burden” on the institutions) prevents the institutions from enforcing the legal limits to the beneficiaries (pp. 51-3). Access, after all, is erga omnes anyway, meaning that any individual across the whole world enjoys access to disclosed documents even when the scope of beneficiaries is technically limited to EU citizens and residents.

Of the thematic chapters, the one on administrative silence (6) is rather successful, adding a fresh perspective on a subject that frequently comes up but seldom receives a detailed discussion. Moreover, as the authors amply demonstrate, the question of institutional non-response lends itself par excellence as a relevant aspect of the access rules that can be fruitfully grounded in the case law. For example, deep analysis of the jurisprudence leads them to the original insight that it is legally speaking always to the institutions’ advantage not to respond to requests for access within the deadline, as it buys them time or gets them an easy win at marginal cost (pp. 200-5). By contrast, the chapter on “the eccentric actors of the access policy” (7) suffers from a clear point of inquiry, making it somewhat drifting and tedious to read. Trivial observations (e.g., long lists of Member States that have at any one time been involved in access to documents litigation without any convincing conclusion following from such an enumeration) are succeeded by confused conceptualisations (e.g., the EU institutions are introduced twice as a distinct category of actor), or even outright overdramatization, such as when the authors argue that “[a]t one stroke, any authority of the Member States […] over the release of documents transmitted to the EU was set aside [by Regulation 1049/01]” (p. 216), but neglect to mention that the Member States as legislators in the Council agreed to this revision themselves, or that the Council engaged in successive internal negotiations to settle the question of what was to be considered a ‘Member State document’. Moreover, the authors’ answer to the question what is eccentric about these actors, which seems to be that they are interested parties without necessarily being involved in litigation (p. 233), sounds itself rather eccentric to all but the most doctrinal lawyers, and certainly to scholars in the social sciences.

Conclusion

All in all, the authors present an insightful overview of the central mechanisms of the access regime that is exhaustively researched and –an important point– sensitive to historical development. On the other hand, the authors’ thoroughness leads them to devote relatively much space to minor issues that may interest a small expert audience of legal scholars, but which goes at the expense of other conclusions interesting for a broader audience. Limited attention is for example dedicated to the institutions’ implementation of the rules in practice, or to informal strategies that they have developed to deal with the more onerous obligations that the access rules impose on them. Important contributions to the literature by constitutional lawyers such as Harlow, Tomkins, or Alemanno, or political scientists such as Naurin or Cross are omitted. Meanwhile, interesting chunks of legal knowledge that would be useful for political scientists to consider, such as the fact that member states’ interventions in pending cases (a treaty prerogative) gains them access to all the submitted pleadings and other proceedings (p. 212), disappear to the background. It is exactly such observations, along with the book’s impressive analytical prowess, that would make it a useful source for scholars beyond doctrinal legal scholarship.

These limitations can be traced back to the authors’ choice to deliver a jurisprudence-informed doctrinal analysis of the legal texts, which is a momentous task in itself and which to some extent justifies their decision to prioritise the legal scholar over the social scientist and the theoretical over the practitioner-oriented. Less understandable however is the absence of a concluding chapter binding the various themes together in a coherent argument. What is the result of an ever-wider yet surprisingly shallow right of access to documents in the long run? Twenty-five years after the idea of access to documents was first coined in the EU, and well into its third act, what future do the authors foresee for access to documents? The answer to these questions remains unclear after putting the book down. These factors are all –regrettably– likely to conspire against a readership beyond the interested EU legal scholar.

An abridged version of this book review will be published in the Journal of Common Market Studies.

[1] See M. Hillebrandt, D. Curtin, and A. Meijer (2014), “Transparency in the EU Council of Ministers: An Institutional Analysis”, European Law Journal 20(1), 1-20

[2] D. Curtin (2009), Executive power of the European Union: Law, Practices, and the Living Constitution (Oxford: OUP); B. Driessen, (2009), Transparency in EU Institutional Law: A Practitioner’s Handbook (London: Cameron May); A. Buijze (2013), The Principle of Transparency in EU Law, doctoral dissertation, Utrecht University; M. Hillebrandt (2017), Living Transparency: The Development of Access to Documents in the Council of the EU and Its Democratic Implications, doctoral dissertation, University of Amsterdam.

[3] E.g., according to the 2016 annual access to documents report of the European Parliament (pp. 5-6), in 2016 the European Parliament’s online register contained 4,175,092 documents, of which 118,980 were directly consulted.

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