The European Union and the principle of transparency: principles, limits and numbers

Di: Studio Legale Bruccoleri - il: 03-07-2017

European Union and the principle of transparency: principles, limits and numbers

Norberto Bobbio, an Italian philosopher of the XX century, wrote that one of the main characteristics of the democratic order is the possibility for the citizens to access to official documents of institutions, in order to control the government’s actions. He called this feature: the visibility of power.

As far back as 1766, Sweden was the first State to guarantee the right to access to official documents for its citizens, but only in the last decades the principle of transparency gained an overwhelming importance in many countries.

The decisive impetus was given by the President of the United States Lyndon B. Johnson under the pressure of public opinion during the years of the Vietnam war, when he signed the Freedom of Information Act on July 4, 1966. The intent of the Act was to establish a minimal transparency in accessing documents, based on the principle that the administration’s documents are public assets and should be available to the taxpayer.

The FOIA provided a starting point for a series of legislative measures that over the years  formed the legal basis for a more comprehensive protection of the right to access to official documents.

Currently, despite the restrictions imposed by the fight against terrorism, more than 600,000 requests for access to administrative acts occur each year in the United Stats, and less than 5% of them receive a total refusal as documents related to national security, commercial secrets or investigations.

Within the European Union, the right of access to documents falls within the framework of the Lisbon Treaty and Regulation (EC) No 1049/2001. In both cases, the European Institutions have sought to give a valid response to the ever-increasing demand for openness demanded by contemporary societies implementing the principles of openness and transparency.

Principle of openness

Rather than being a right for the citizen, the principle of openness has to be intended as a prerequisite for the functioning of the Union. It incorporates both the principles of transparency and the principle of participation. The former finds expression in the Article 1 of the Treaty of the European Union that underlines the necessity to proceed to “a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen”. The second, enshrined in Article 11 of the TEU, calls on the European institutions to maintain “open, transparent and regular dialogue” with representative associations and civil society.

The Treaty on the Functioning of the European Union, on the other hand, provides the necessary support in terms of implementing these principle with art. 15 TFEU, whereby the Union’s institutions, bodies, offices and agencies are obliged to operate in the most transparent way possible, so as to “promote good governance and ensure the participation of civil society”, and Article. 298, where it is stated that the EU’s legislative power has to adopt every necessary measure to support an open, efficient and independent administration.

Principle of transparency

As emphasized by the Court of Justice, the lack of information and debate can raise doubts and perplexity towards the Union and the legitimacy of its decision-making process as a whole. For this reason, transparency in access to documents is not only a right for the citizens (Article 42 of the European Charter of Fundamental Right), but a cornerstone of the EU itself, without which it is not possible to effectively respond to the current crisis of confidence and fully legitimize the work of the Union and its bodies. 

This principle is found in Regulation (EC) No 1049/2001, which seeks to ensure full access to the right of access to documents and at the same time to define its limits.

The Regulation contains several exceptions, based mainly on jurisprudential cases faced by European magistrates. In the aftermath of its approval, the fragility of its legal basis required a series of additional interventions by the European Court.

At the same time, the Council and the Commission have always shown a certain reserve, if not hostility, towards a broad interpretation of the principle of transparency. In this way, the citizens are often obligated to appeal to the Court, in order to get access to most of administrative acts of the Union.

The Court of Justice, for example, stated in the leading case Sweden V Commission and Turco that the public right of access to the documents of the institutions is connected with the democratic nature of those institutions, consequently the right of access must to be considered as broad as possible. This aspect is guaranteed strictly on the basis of two requirements: any application for access must be examined specifically and individually. In this way, it is possible to safeguard the principle of transparency and, at the time time, the specific needs of confidentiality and security of the EU.

In this context, therefore, two types of exceptions can be distinguished: absolute limits and relative limits.

Absolute limits

Included in Article 4 of the Regulation (EC) No 1049/2001, the absolute limits aim to protect two fundamental aspects of the rule of law: the public interest and the protection of privacy.

With regard to the first aspect, although in absence of an exact definition, the Regulation  lists a series of precautionary measures that have already been adopted by most Member States in their respective national legislations and that are aimed primarily at protecting public security, the administration of Defense and military affairs, the management of international relations and fiscal, monetary and economic policy of the Union or one of its Member States.

In the Steinberg case, for example, the Court of Justice decided to deny access to acts related to the provision of grants in Palestine on the basis of European programme. The motivation was prompted by fear that detailed information about the relevant projects featuring in the documents might be used to exert pressure on the relevant persons, even to make threats to their physical or moral integrity.

Another example of case-law is given by Thesing v ECB case, where the Court gave to the European Central Bank the authorization to deny the disclosure of documents relating to derivative transactions in financing the deficit and in managing public debt in Greece. The underlying reason for this decision lies mainly in the desire not to shake the financial markets, particularly vulnerable at that time, and not to aggravate the economic situation of the country.

Relative limits

This category includes documents considered of public interest that can be potentially disclosed.

Reasons for refusing or accepting a request for access to documents, in this case, should be assessed case by case and concern primarily commercial interests, investigations, specific acts from Member States and legal opinions.

In the Sweden and Turco v Council case, for example, the Court of Justice delivered a favorable opinion on the disclosure of acts related to legal opinions requested by the Council, asserting that this contributes to increasing the legitimacy of European institutions in the eyes of public, because in this way European citizens can acquire information on how decisions are taken, especially when the deliberative process is concluded and there is no longer any risk of compromising the decision itself.

A similar case is represented by the Federal Republic of Germany v Commission case, where the Court rejected the refusal of Germany to divulge a document sent to the Commission, that was not taken into account for the final decision. The Court’s motivation, based on the Article 4 of the Regulation, states that none of the Member States enjoys the right of veto to prevent access to Union documents, even if they originate from one of its members.

The numbers

The Annual Report (2016) of the Commission on the application of Regulation (EC) No 1049/2001 reveals that the number of requests for access to documents has remained constant over the past few years, around an average of six thousand applications filed.

A significant increase (+9%) has been registered in 2015.

1.1 Requests filed

Si registra, invece, una diminuzione costante (-11.41%) degli accessi senza riserve agli atti amministrativi, mentre raddoppia rispetto al 2011 la cifra degli accessi parziali (+7.67%).

Il numero dei rifiuti si attesta intorno ad una media del 14%, ancora lontano del 5% degli Stati Uniti.

There is, however, a steady decrease (-11.41%) of full access to administrative acts, while the number of partial access granted has doubled during the years (+ 7.67%).

The percentage of access refused is around 14%, still far behind 5% of the United States.

1.2 Access to documents (%)

More than three-fourths of denied access to documents find a legal fundament in protecting privacy, integrity of individuals, commercial interests, court proceedings and EU and decision-making processes. In particular, it is to be noted that the protection of privacy, another fundamental right of the Union, has become the main reason for refusal in the last four years.

1.3 Areas where refusal of access to documents occurs (%)

Academics institutions stand out as the most active actor in submitting requests, while lawyers give the second place to civil society.

1.4 Occupational profile of applicants (%)

Concluding, with regard to the geographical origin of applications for access to documents, it is worth pointing out that Italy (7.3%) loss its fourth place in favor of United Kingdom and French, both behind Spain (9.9%), Germany (11.7%) and, obviously, Belgium (26.8%).