Adrienne Komanovics[1]: Democracy, legitimacy and freedom of information in the European Union (JURA, 2005/1., 129-142. o.)

"... the very size of the EU renders traditional forms of democracy unworkable, but this is in part due to the challenges of globalization, it is not merely the result

of European integration."

Julie Smith[1]

Introduction

Since the seventies of the last century, several measures have been introduced to overcome concerns about the democratic deficit of the European Union.[2] The first part of this paper gives a brief outline of the numerous facets of the phenomenon called democratic deficit and the efforts taken to enhance the legitimacy of the European Union.

The second part is devoted to a specific aspect of democracy: it examines the extent to which international organizations satisfy the need for greater openness. Given the objective of this paper, deeper analysis will be restricted to the European Union, with references to the relevant provisions of the Treaty establishing a Constitution for Europe as well.

It is argued that despite older and more recent measures, executive dominance and growing interdependence between states inevitably lead to a certain loss of democratic control.

I. Democratic deficit and possible remedies

For decades, the Union rested on "permissive consensus": people accepted the benefits brought about by European integration. The legitimacy of the Union was secured through outcomes or consequences, i.e. peace and prosperity.[3] However, the ratification crisis of the Maastricht Treaty (1992) revealed that no such consensus was discernible any more.

There are divergent definitions of the term "democratic deficit"; and divergent proposals to rectify it. The European Parliament described it as "the combination of two phenomena: (a) transfer of powers from the Member States to the European Community; and (b) the exercise of those powers at the Community level by institutions other than the European Parliament, even though, before the transfer, the national parliaments held power to pass laws in the areas concerned."[4]

Others define it as the limited ability of Europeans to influence the work of the major EU institutions,[5] or argue that decisions in the EU are insufficiently representative of, or accountable to, the nations and people of Europe.[6] Clearly, the establishment of an additional layer of governance further removed Europe from the people(s).[7]

Many commentators distinguish between the institutional and the socio-psychological perspectives of democratic deficit. Institutional perspectives focus attention on power-sharing and on institutional reform as a solution. Socio-psychological perspectives are more concerned with European identity and with the absence of a European demos, a politically organized community of citizens.[8] Both aspects will be considered in turn.

A/ Democratic deficit: the institutional perspective

It is argued that parliaments - at national as well as European level - do not have sufficient powers; at the same time, non-elected bodies possess too much. In other words, the shift from national to European level has benefited executive decision-makers (governments and bureaucrats) at the expense of parliamentarians. Moreover, there is the proximity problem: Brussels is very "distant" from the citizens. Europe could be brought closer to the people in several ways, e.g. the public should be given the possibility to participate in the EU policy process, which in turn could be further enhanced with more transparent decision-making and simpler rules.[9]

1. Parliaments do not have sufficient powers

The efforts made towards more efficient decisionmaking in the EU have had negative impact on democratic accountability. Qualified majority voting in the Council reduces the already marginal role of national parliaments: if governments can be outvoted, parliamentary scrutiny is much less meaningful. Combined with the rules on the weighting of votes in the Council, smaller Member States find themselves more often in this position as compared with bigger Member States.

Two remedies are suggested, either simultaneously or as alternatives: enhancement of the role of the European Parliament in order to compensate

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for the loss of national parliamentary control that resulted from the extension of majority voting in the Council, and/or greater involvement of the national parliaments in the EU process.

a)The European Parliament

Direct elections. It was hoped that direct elections of the Members of the European Parliament[10] would contribute to the legitimacy of European integration, but in practice the EP seems relatively remote from the concerns of its electorate. Moreover, campaigns are fought along national lines; EP elections are more like second-order national elections. Voter turnout is low by national standards, and has declined across Europe in every set of EP elections.[11] The data relating to the 2004 elections are disconcerting: the voter turnout in the 15 "old" Member States was 49.4%, while in the ten new Member States it was only 26.9% (in Hungary 38.5%). The EU-average was 45,7%.[12] Furthermore, EP elections are characterized by national campaigns, with national politicians and national issues taking centre stage.

Having regard to these facts, can it be genuinely argued that the European Parliament in a political sense represents the citizens (and their interests) in the Community architecture? Do direct elections confer legitimacy on the European Parliament in particular, and on the EU in general?[13]

Enhancing the role of the EP. Enhancing the role of the European Parliament may entail further extension of its legislative and budgetary powers,[14] as well as more powers in relation to the control and supervision of the executive.

As far as the legislative role is concerned, the EP has accrued a considerable amount of power from the seventies onwards: the gradual but steady expansion of Community competences, taken together with the introduction of new legislative methods, represents a significant transformation of the originally advisory role.[15] Indeed, the Amsterdam Treaty and the Nice Treaty upgraded some policy areas from consultation and cooperation procedure to codecision procedure, where the EP is regarded as co-legislator. Nevertheless, the EP still lacks powers which its national counterparts enjoy in the Member States.

Thus, the EP does not possess a fully positive legislative role (initiating, developing, and adopting proposals), and its negative legislative role (veto) is also circumscribed.[16] Secondly, the EP's opinion has in many cases only a very limited effect - most obviously in the consultation procedure. Furthermore, the EP is not consulted on all Council legislation[17] and does not have to be consulted on Commission legislation, even though Commission rules represent the overwhelming majority of EU legislation.[18]

The EP's power of supervision is restricted to the Commission; the EP exerts very little influence on the Council, and it has virtually no powers in relation to the European Council.[19] However, when analysing the Parliament's ability to control and supervise the EU executive, three points deserve attention. Firstly, since both the EP and the Commission are supranational in character, they are natural allies in furthering the Community model. Against this background, the lines of supervision are unclear.[20] Secondly, specific problems arise from the fact that the roles between the Commission, the Council and the European Council are blurred.[21] Thirdly, policy implementation is to a great extent in the hands of national authorities: the bulk of front-line implementation is delegated to appropriate agencies within the Member States. Thus the EU is highly dependent on the Member States for policy enforcement.[22] These factors severely reduce the EP's supervisory powers.

b)National parliaments

One solution suggested to overcome the EU's democratic deficit is to return to the traditional international model, which would entail the renationalization of European policies.[23] As a consequence, the EU would become more intergovernmental than it currently is. Newman, however, argues that "repatriation" of policies is anachronistic for several reasons. Among others, the extent of integration and interdependence is very advanced: transferring the competences back to domestic level would lead to disruption and destabilization. Furthermore, globalisation does by all means undermine domestic autonomy. In sum, repatriation would lead to vast practical economic and political difficulties.[24]

The distribution of competences between different levels of government is a sensitive issue for the Member States. To restrain the scope of Community action, in 1992 Member States introduced a safeguard principle.[25] The principle of subsidiarity means that decisions within the European Union should be taken at the closest practical level to the citizen, and in accordance with the criteria of efficiency. The European Union, therefore, should not take on tasks which are better suited to national (or even regional or local) administrations.[26]

There is, however, an approach less radical than repatriation. Its proponents argue that greater role should be accorded to national parliaments in the EU decision-making processes.[27] These proposals were taken into account when drafting the new Treaty: the Constitution aims at strengthening the active role of national parliaments by increased dissemination of information and transparency in relation to national parliaments (e.g. the forwarding of Commission propos-

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als)[28] and by a new rule according to which national parliaments are directly involved in the monitoring of the proper application of the subsidiarity principle.[29] Despite these new provisions, the influence of national parliaments on EU process remains limited with regard to decision-making in general.

2. Non-elected bodies possess too many powers

In this section certain problems relating to other EU institutions will be highlighted without, however, suggesting an actual solution. Admittedly, any reform would basically change the institutional balance, and it is highly unlikely that any major amendment would receive unanimous support from (the governments of) the Member States. Even though the Constitution reviews the basic institutional set-up, it does not radically alter the balance between the different institutions.

Members of the European Commission are appointed by the national governments, although the EP must also give its approval. In this sense, the Commission is a very undemocratic institution. It was suggested that the Commission should be directly elected by the Union citizens, or alternatively it could be indirectly elected out of the majority grouping in the EP. Neither proposal seems feasible at the moment: governments are reluctant to cede the power of appointment of the Commission.

Regarding the extent to which the Commission, as an executive body, is answerable to European citizens either directly or through the medium of the EP, I would like to recall the previous chapter of this paper: despite the extension of its scrutiny role in the last decades, the EP is still restricted in controlling the composition and the functioning of the Commission.[30]

The Council of the European Union, which performs legislative as well as executive functions, is an extremely secretive body. In terms of its composition, compared with the direct and popular representation within the European Parliament, the Council is characterised by indirect and territorial representation.[31] While the Council - in the end, the governments of the Member States - was open to extend the EP's scrutiny over the Commission, it was reluctant to allow oversight of its own internal workings. The problems of secrecy and the efforts to enhance transparency are further elaborated below.

The European Courts have been attacked for having a teleological pro-integrationist bias. No doubt, the Courts pushed out the boundaries of European law by developing the principles of supremacy and direct effect.[32]

However, against the criticisms of "judicial activism" levelled against the Court, Arnull argues that the Court's inventiveness is limited to guaranteeing the effectiveness of Community law (see the principles of direct effect, supremacy of Community law over national law, and state liability for non-compliance with Community law), whereas it is rather conservative when it comes to economic and social policy. In these spheres, the Court has been much more willing to accept and uphold policy choices made by the Member States, as long as the contested measures respected the principles of proportionality and non-discrimination.[33]

In sum, the European Union is an extremely technocratic organization, which has valued expertise and effectiveness much more than representation and democracy. Executives, national or European, remain in a privileged position at the expense of directly elected legislature.

Source: http://www.elections2004.eu.int/ep-election/sites/en/results1306/turnout_ep/graphical.html

3. Public participation in the EU policy process

Another facet of democratic deficit is that "... there is a comparatively low level of interest and awareness of the EU as an economic, legal and political actor among the peoples of Europe, although its policies have an ever greater impact on their lives."[34] Several measures have been introduced to overcome this deficiency: to bring the EU closer to ordinary people, to ensure that the European integration process

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is no longer simply an elite process, distant or even irrelevant for the vast majority of European citizens. Clearly, enhanced transparency and simplification of legislation are preconditions to informed participation; this will be dealt with later on.

Turning to the requirement of participatory democracy, undoubtedly, the most direct way to heighten popular involvement is by referendums. There have been several referendums in Member States in EC/EU related matters[35] but arguably they provide no solution to the democratic deficit of the European Union. Apart from being rather exceptional measures, the major weakness is that they have been tangled up with national politics.[36] Generally, politicians manipulated voters to give their opinions on quite different questions from those they were asked.[37]

The 2001 Irish referendum on the Treaty of Nice -a primary source of EU law - demonstrates the dangers of permitting national electorates a decisive influence on EU-wide issues. As a commentator put it: "[a] country [Ireland] of less than four million people, an electorate of less than three million, a turnout of less than a million and a No vote slightly over half a million derailed a process designed to allow the EU to enlarge to almost 500 million."[38]

Moreover, there is no possibility for a popular vote in the case of secondary legislation. Thus, the link between the citizens and the legislator is extremely weak in the case of regulations and directives: national governments can be outvoted, and the role of parliaments - national or European - is often constrained.

Although the public in general has a very limited direct influence on EU matters, certain interests are represented in an institutionalized manner, namely in the framework of two consultative bodies: the Economic and Social Committee, and the Committee of the Regions. The first represents employers, employees as well as other sections of organised civil society.[39] The latter was set up in order to guarantee the representation of subnational levels - the regions and local governments - of the Member States,[40] as well as to involve the elected level closest to the citizens.[41]

Both Committees are advisory bodies: the Council and the Commission are not obliged to act upon their views. Sometimes proposals are referred to the Committees at a late stage where the key decisions have already been made in principle. Moreover, members serve only on a part-time basis. Not surprisingly, their influence on decision-making is limited, these committees are just one of the several channels available for various interests to contribute to policy formulation.[42]

Besides these two Committees, a vast number of non-governmental interests concern themselves with EU processes. There are different types of interest groups, all seeking to influence EU policy- and decision-making: subnational governmental bodies (local and regional authorities), large business firms (e.g. the car industry), national interest groups (from inside or outside the EU, like national environmental interest groups or the American Chamber of Commerce), and Eurogroups.[43]

No doubt, these interest groups allow for greater political participation. However, the network is very asymmetric, with more than four-fifths of all groups representing business interests, and only one-fifth more diffuse social interests.[44]

The Constitution takes certain further (but relatively timid) steps towards participatory democracy. Apart from reinforcing the requirement to maintain an open, transparent and regular dialogue with representative associations and civil society, and to carry out broad consultations with parties concerned[45] it provides for other methods as well.

Firstly, amendments to the Constitution can be prepared by a Convention, modelled on the body preparing the Draft Treaty establishing a Constitution for Europe.[46] The Convention shall be composed of representatives of the national Parliaments of the Member States, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission.

Secondly, the Constitution introduces the citizens' right of initiative, thus providing direct input to European citizens. A petition with at least one million signatures obtained from a significant number of Member States - the minimum number is to be decided later by a European law - may be sent to the Commission inviting it to take a legislative initiative.[47] The fact that the Constitution also seeks to clarify the distribution of competences as well as to simplify legal instruments represents added value.

4. Transparency and simplification

People can participate in a meaningful way in policy processes only if they are well informed of the issues at stake and are aware of the various options. Obviously, democracy is facilitated through greater institutional openness, including inter alia open legislative processes and access to documents of public interest. Similarly, simplification promotes the better understanding of European affairs. Simplification entails streamlined legislative procedures as well as a substantive requirement: rules of a better quality. This is not an easy task to achieve in a multi-cultural context, where decision-making involves 25 sovereign states with specific interests. Unfortunately,

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not even the Constitution can break away from this legacy: there are numerous exceptions, reservations, safeguards, protocols and declarations in and attached to the Treaty. In fact, Newman's comment applies to the post-Constitution era as well: "... the EU is an opaque system of institutions and processes which is inherently difficult to understand, let alone control."[48]

Indeed, decision-making in the EU is very complex. In traditional international organizations each member has equal vote (generally: one state - one vote) and decisions are made by unanimity - behind closed doors.[49] In the early years of the (then) Communities, decision-making resembled this traditional approach: the Commission proposed, the EP (Assembly) was consulted, the Council of Ministers decided with unanimity. This also meant that national parliaments could easily monitor the activity of their governments.

Legislative procedures have radically changed after the Single European Act, which represented a major shift towards qualified majority voting.[50] I already referred to the new procedures introduced by subsequent Treaty amendments. As a result, the EP became co-legislator in budgetary matters and in policy areas subject to the co-decision procedure.

The codecision procedure, now being the general legislative procedure, is very complex, with a possibility of (but not necessarily) three readings in the EP. It must be added though that about 70 per cent of legislative procedures is completed by the end of stage two.[51] Co-decision procedure is generally accompanied by qualified majority voting in the Council. Efforts to enhance effectiveness, however, blur the accountability of national governments: "improving efficiency within the Council obviously complicates the process of domestic accountability whenever a government is out-voted or accepts a decision solely in the expectation of being out-voted."[52]

As far as executive responsibilities are concerned, the system of advisory and other committees (comitology) is heavily criticised. To get relieved from detailed and specialised matters, the Council decided to share the executive function with the Commission: the Commission was delegated powers to take legally binding "technical" or "administrative" decisions. However, the Council did not want to lose control, so committees composed of national representatives were set up to monitor the exercise of these powers.[53]

The problem with this comitology system is that from the point of principle it is highly contentious which committee and procedure should be used in a certain case, furthermore, the secrecy of their operation and the lack of involvement by the EP is heavily criticized. The EP complained that it is "provided with insufficient information about comitology deliberations and that it has only very limited scrutiny powers over the committees ."[54]

The system of comitology is retained in the Constitution, however, Article I-37 stipulates that the general rules of comitology are laid down by a European law adopted under the ordinary legislative procedure, modelled on the co-decision procedure, and hence no longer by the Council alone, as is the case at present.

Lack of transparency and possible remedies will be addressed later on with greater detail. Suffice it to say that access to official information represents a major guarantee of participatory democracy. Primary sources of EU law bear witness to this tenet: Article 1 TEU refers to the objective that decisions should be taken as openly as possible and as closely as possible to the citizen.[55] Moreover, Article 207 TEC provides that:

The Council shall adopt its Rules of Procedure.

For the purpose of applying Article 255(3), the Council shall elaborate in these Rules the conditions under which the public shall have access to Council documents. For the purpose of this paragraph, the Council shall define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in those cases, while at the same time preserving the effectiveness of its decision-making process. In any event, when the Council acts in its legislative capacity, the results of votes and explanations of vote as well as statements in the minutes shall be made public.[56]

Article 255 TEC, together with Regulation 1049/2001 (the Public Access Regulation), represents important steps towards greater openness in the EU.

B/ Democratic deficit: socio-psychological perspective

The socio-psychological aspect of democratic deficit involves the need to change the way Europeans think about themselves and the way in which they view the communities to which they belong. The objective is to transform the EU "from democracies to democracy" (from the plural to the singular), from an union among the peoples of Europe to a union of a European people, which is based on shared values, shared rational, intellectual culture which transcends ethno-national differences.[57] Presently, the situation is characterized by the absence of "civic we-ness", the lack of a sense of common identity amongst Europeans.[58]

From the perspective of practical arrangements, arguably most of the initiatives - the creation of a Eu-

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ropean anthem, flag and passport - have been largely symbolic.[59] Furthermore, common citizenship rights are far from adequate. The notion of Union citizenship was introduced by the Maastricht Treaty, gathering together a bunch of rights, a great majority of which already existed previously either de iure or de facto.

Adopting an adequate Community catalogue of human rights is also fundamental to the creation of a common identity. The protection of fundamental rights in the Union has evolved "in a piecemeal and incoherent manner",[60] with the European Court of Justice playing a pre-eminent role. In the early period of the Court's human rights jurisprudence the Court used this concept for defensive purposes: to defend the supremacy of Community law, to ensure its effectiveness. It was followed by an offensive use of fundamental rights: the Court has applied human rights principles to extend its jurisdiction, thus it began to review Member States acts for compliance with these requirements.[61]

These developments were paralleled by efforts either to draw up a Community catalogue, or to join the European Convention on Human Rights.[62] Concerning the latter, the Court in Opinion 2/94 clearly established that accession by the Community to the Convention cannot be effected without amending the EC Treaty. Moreover, it should be recalled that the Charter of Fundamental Rights was solemnly proclaimed by the presidents of the three EU institutions at Nice on 7 December 2000. Although the Charter is not yet directly justiciable, it has become an important reference document.[63]

The Constitution breaks field in both aspects: firstly, the Charter is integrated into the Constitution, secondly, the Union is authorized to accede to the ECHR.[64]

After this brief survey of the Union's democratic deficit, the next chapter is devoted to the problems of secrecy within international organizations in general, and in the European Union in particular.

II. Secrecy and international organizations: Introduction

Confidentiality is one of the main characteristics of diplomatic activity. In the conduct of international relations - for obvious reasons - the main rule has traditionally been secrecy: it is the executive which represents states at international level. Executives, in turn, are reluctant to disclose their own strategy relating to the conduct of intergovernmental relations. Moreover, they refuse to release information provided in confidence by other governments (this is the so-called rule of "originator control", or "authorship rule" in EU terminology).[65] It is argued that sensitive, high-policy issues are at stake, and things are settled more easily in a sphere of mutual trust, without close public scrutiny. The same is truth with regard to institutionalized fora of intergovernmental cooperation, i.e. international organizations.

Even though the presumption of confidentiality seems ingrained in the conduct of interstate relations, the so-called crises of legitimacy affected a number of international organizations, like the World Trade Organization, the World Bank and the International Monetary Fund. By way of example, a commentator described WTO processes in the following words: important decisions on trade policy are made by "a group of unelected bureaucrats sitting behind closed doors in Geneva".[66]

Secrecy is a sensitive issue in the European Union as well. Besides negotiations with third countries, internal deliberations within the Council are also "international" in the sense that these talks take place between several sovereign states. The Council has generally been reluctant to disclose minutes of its meetings, arguing that disclosure would render discussions between the Member States "less full, frank and honest, and thus undermine the smooth running of . deliberations."[67] The position of the Council was clearly set out in Carvel:

Outlining the reasons underlying the principle of the confidentiality of its proceedings, the Council points out that it works through a process of negotiation and compromise, in the course of which its members [ministers of the Member States] freely express their national preoccupations and positions. It is essential that those positions remain confidential, particularly if the members are forced to move away from them in order that agreement may be reached, sometimes to the extent of abandoning their national instructions on a particular point. This process of compromise and negotiation is vital to the adoption of Community legislation, and would be jeopardized if delegations were constantly mindful of the fact that the positions they were taking, as recorded in Council minutes, could at any time be made public through the granting of access to those documents, whether or not the Council had authorized such access.[68]

Whether the institutions' interest in protecting smooth decision-making prevails over the citizens' interest in gaining access to information is explored in the following chapters.

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III. Regulation 1049/2001 - General Remarks

The numerous efforts made to tackle the problem of secrecy within the Union are described in a detailed fashion elsewhere.[69] Our examination will be restricted to the analysis of the Public Access Regulation.

Regulation 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents was adopted on 30 May 2001.[70] The Regulation is applicable as from 3 December 2001.[71]

The Public Access Regulation, which was adopted on the basis of Article 255 TEC, replaced previous rules of internal organization of the Council and the Commission (the so-called Access Decisions).[72] Article 255 provides the following.

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.

It might not be clear at first sight why the very fact of having a regulation instead of a decision is of such an importance. However, the Regulation was adopted by the co-decision procedure, and from now on, the institutions cannot unilaterally change the relevant rules by simply amending their internal rules.[73]

Thus convinced that a simple change in the legal basis can be of considerable significance, one has to add that the choice of a "constitutional" legislation is just one element in the evaluation. To get an overall picture, substantial analysis of the Regulation is indispensable. The deciding factor is whether or not the Regulation represents the enhancement of the right to information.

The group of beneficiaries is indeed comprehensive: any citizen of the Union and any natural or legal person residing or having its registered office in a Member State can rely on this Regulation. Moreover, at the discretion of the institution, this right might be extended to any natural or legal person not residing or not having its registered office in a Member State.[74]

The Regulation applies the presumption that EP, Council and Commission documents are open, i.e. they are by definition of public interests to which everyone can have access. Consequently, the applicant is not obliged to show specific interest or to state reasons for the application.[75] Obviously, certain circumstances might warrant secretness: these are governed by the regime of exceptions.

The term "document" is defined broadly: it covers any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility.[76] This also means that, in accordance with Articles 28(1) and 41(1) of the Treaty on European Union, the Regulation also applies to the second and third pillars. In order to make it easier for citizens to exercise their rights, the Regulation provides for the establishment of public registers.[77]

The Regulation is applicable to Parliament, Council and Commission documents only,[78] although other institutions and bodies also drew up their own internal rules.[79] Unfortunately, it is not quite clear which organs can be regarded as belonging to these three institutions covered by the Regulation.[80]

An important innovation of the Regulation - as opposed to the Access Decisions of 1993 and 1994 - is that it applies to all documents held by the institution: it covers documents drawn up as well as received by the institution and in its possession.[81] This is however, largely undermined by specific rules relating to documents originating from third parties in general, and those authored by the Member States in particular.

In the first case, the institution shall consult the author of the document with a view to assessing whether one of the exceptions is applicable, unless it is clear that the document shall or shall not be disclosed.[82] The final assessment seems to remain in the hands of the institution, but presumably the institution will not act contrary to the intentions of a third party.[83]

Documents emanating from Member States enjoy special treatment: a Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.[84] Presumably, in this case the Member State has the last word.[85] If any uncertainty remained on whether the words "may request" imply some sort of discretion on the part of the institutions, it was removed at the end of 2004. In a recent case, the CFI made clear that governments can veto access to documents originating from them and submitted to an EU institution.[86]

Access to documents is guaranteed by a two-stage administrative process. The decisions of the institutions can be challenged before the Community Courts.[87] Alternatively, the applicant may lodge a complaint with the European Ombudsman.[88]

The institutions have positive obligations as well: in the framework of their information policy, they shall make documents as far as possible directly ac-

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cessible to the public in electronic form.[89] Moreover, they should develop good administrative practices to facilitate the exercise of the right of access.[90]

The regime of exceptions deserves special attention. Firstly, Article 4(1) provides that the institutions shall refuse access where disclosure would undermine the protection of certain public and private interest. The public interests protected by the Regulation comprise public security, defence and military matters, international relations, and the financial, monetary or economic policy of the Community or a Member State. This paragraph also protects the privacy and the integrity of the individual.

Secondly, Article 4(2) lists further exceptions -commercial interests, court proceedings and legal advice, and inspections, investigations and audits - with the proviso that the institution has to balance whether there is an overriding public interest in disclosure.

Thirdly, treatment of internal documents of the institution depends on whether or not the document requested relates to a matter where the decision has been taken. Where no decision has been taken, the exception covers both documents drawn up by the institution and received by it. The Regulation is more permissive where the institution has already decided: here only those documents can be refused which contain opinions for internal use as part of deliberations and preliminary consultations within the institutions concerned.[91] The interest to be protected is the institution's decision-making process, though access must still be granted if there is an overriding public interest in disclosure.

Concerning the regime of exemptions, three points deserve attention. First of all, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.[92]

Secondly, all exceptions are subject to a harm test. Thus it is not enough to simply invoke an exception: refusal to disclose a document must be based on an analysis of the harm that would be caused by disclosure to one of the public or private interests expressly mentioned in the Regulation.[93] In the case of internal documents the harm test seems stricter: access can only be refused if disclosure would seriously undermine the institution's decision-making process. Arguably, in practice the distinction might not be an easy one.

Finally, the second and third sets of exceptions are also subject to a public interest test. Thus the institution has to balance the interests involved: the public and private interests specified by the Regulation as worthy of protection against the wider interest of the citizens in general in making the document public.

The Commission itself expressed doubts as to the applicability of the public interest test. It argues in its Report on the implementation of the Regulation that:

The public interest is a quite vague legal concept. It is difficult to lay down criteria to identify the existence of a public or general interest to disclose information. It is clear, however, that the interest of applicants, insofar as the latter have justified their applications at their own initiative, is not in itself a public interest. On the other hand, it is possible to maintain that there is always a public interest in disclosing information held by the authorities.

The question of whether or not a public interest in disclosing a specific document exists is, therefore, quite academic.[94]

Although no category of document is excluded from the right of access, sensitive documents are subject to special rules. Sensitive documents are defined as documents which are classified as top secret, secret or confidential in accordance with the security rules of the institution and which protect certain Union or Member State interests (public security, defence and military matters). Given their "sensitive" nature, applications for such documents shall be handled only by persons with the necessary security clearance to enable them to acquaint themselves with the documents. Furthermore, sensitive documents shall be recorded in the register or released only with the consent of the originator. Thus the final decision rests with the author of the document. Finally, although the institution handling the request has to substantiate its refusal, it has to be done in a manner which does not harm the interests protected.[95]

Thus it is clear that disclosure of a document cannot be simply refused by reference to its classification; the institution has to explain its decision. At the same time, assessment carried out by the institution is by no way final: it is the author of the document which makes the ultimate decision.

Last but not least, a few words on the duality of national and European access regimes, which are dealt with in Article 5 of the Regulation. It can easily happen that a Member State receives a request for a document in its possession which originates from the Commission, Council or the European Parliament. Obviously, in these circumstances the national right to information laws are applicable. However, the Regulation rather controversially imposes an obligation on Member States[96] to consult with the institution concerned. It is not clear from the wording of Article 5 whether or not the Member State has to follow the opinion of the institution concerned and thus disregard its own national laws.[97] The term "consultation" suggests that the opinion of the institution is not binding. However, the principle of loyal

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cooperation referred to in recital 15 of the Preamble, enshrining Article 10 TEC, implies that Member States have no choice but to accept the opinion of the institution, otherwise they would act contrary to the Regulation.[98]

IV. The Regulation in practice

Although the Public Access Regulation was drawn up to enable citizens to participate more closely in the decision-making process as well as to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen,[99] the annual reports of the institutions and the implementation report of the Council and the Commission reveal a more complex picture concerning, inter alia, the professional profiles of applicants as well as the subject area of requests. We also have to keep in mind that the work of the Parliament is by definition characterized by openness.

Concerning the personal side, we can conclude that the Regulation mainly benefited specialists. The implementation report drawn up by the Commission reveals that the professional profiles of applicants does not reflect the composition of EU population. Applicants mainly belong to very specific groups: academists requesting documents for research purposes and professional sectors, such as lawyers defending the interests of their clients and lobbies trying to influence decision-making. Very few journalists use the Regulation for getting information, presumably because of the relatively long deadlines.[100]

According to the annual report of the Council relating to 2002, "[a]s far as initial applications are concerned, applicants are principally students and researchers (23.5%). The industrial and commercial sector (14.5%), pressure groups (13%) and lawyers (10,5%) are also among the best represented social and professional categories. Applicants are not required to give their identity or the reasons for their application, usually sent via email, so the profession of a significant percentage (22%) of applicants is unknown. In the case of confirmatory applications, most applicants are also students or researchers (31.8%). Journalists account for 18.2% of applicants at the confirmatory stage."[101]

Concerning the subject area of applications, the Commission's annual report on 2002 indicates that in that year about one third of the applications related to competition, internal market, and taxation and customs union (12.7, 10.3 and 10.6 per cent respectively). Around 16 per cent concerned the Secretariat-General of the Commission, while the remainder was split among the other DGs.[102]

According to the Commission's next annual report, 2003 saw a major increase in the requests, presumably due to the fact that the Regulation became widely known as well as because of the launching of the public register. The areas of major interest and the professional profiles of applicants have not changed significantly in 2003.[103]

Given the different role of the Council, the fields covered by the applications are a bit different, though there is an overlap with Commission data. In 2002, the documents requested mainly related to justice and home affairs (24.5 per cent). It was followed by information on the internal market (14.5 per cent), economic and monetary policy (10.5 per cent), external relations and CFSP (8.5 per cent) and the environment (8 per cent).[104]

In conclusion, the majority of requests relate to low profile issues: individuals and undertakings seek information relating to administrative decisions and practices directly affecting them. Only a small percentage of applications requests information about the higher-level policy of the government.[105] Undisputedly, however, such applications can equally contribute to greater openness of the administrative practices of the institutions.

V. Outlook: the Treaty establishing a Constitution for Europe

At the Laeken Summit in December 2001, the European Council decided to create a Convention to prepare the draft of what was to become the Treaty establishing a Constitution for Europe. The Laeken Declaration also defined the substance of the debate: among others, the Convention was to examine the possibilities of more democracy, transparency and efficiency in the European Union.

From our perspective, the most relevant provisions of the Constitution are in Title VI of the first part.[106] Title VI brings together a number of provisions that are currently scattered throughout the Treaties and which are either reproduced in full or extended.

The Constitution stipulates that the Union is founded on three principles: democratic equality, representative democracy and participatory democracy. The first two principles do not confer new rights on European citizens but confirm already existing rights. Democratic equality refers to the principle of equality of all Union citizens.[107] Representative democracy refers to the fact that citizens are directly represented in the EP, while Members of the Euro-

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pean Council and the Council are democratically accountable either to their national parliaments, or to their citizens. Moreover, the principle of proximity is also retained.[108]

The principle of participatory democracy incorporates several methods by which citizens can participate in the Union affairs. Most importantly, the Constitution introduced the right of citizens' initiative. Since the details were set out above, suffice it to say that the instruments of action available to the Union were simplified, reducing their number from fifteen to six, moreover the competences (exclusive, shared and supporting competences) and their distribution between the Member States and the Union were defined clearly and permanently.

Further articles in this title concern the European Ombudsman, transparency of the proceedings of the institutions and the protection of personal data. Thus, Article I-50(2) stipulates that the Parliament as well as the Council is to meet in public when considering and voting on a draft legislative act. Furthermore, Article I-50(3) extends public access rules to all Union institutions, bodies, offices and agencies.

The right of access to documents, along with the right to good administration, forms part of the Charter of Fundamental Rights.[109] The Charter acquires a truly legal nature by its incorporation into the Constitution. - For the sake of completeness, the more active role accorded to national parliaments should be recalled as well.

Conclusions

In conclusion, three points deserve attention. First of all, regarding the Union's democratic deficit, the argument is that loss of national sovereignty is inevitable due to globalization and the growing interdependence of states. The choice is thus not between the preservation of sovereignty and transfer of sovereignty to the EU; but between an international cooperation with more democratic input as opposed to an international organization where executives dominate. Contrary to the founding Treaties of the Union, "ordinary" international agreements normally do not provide for a forum similar to the European Parliament and national parliaments can exercise only minimal control. The wide network of such ad hoc agreements renders it difficult for national parliaments as well as ordinary citizens to keep track. Thus, the Union has undoubtedly a better record in this regard.[110]

The second remark relates to the Public Access Regulation. Thorough analysis reveals a number of shortcomings. These concern the treatment of documents emanating from the Member States, sensitive documents, as well as the duality of EU and national rules. Furthermore, there are too many exceptions, these are vague, and the balance test is not an easy one to apply. Consequently, any statement arguing that the Regulation represents a major step forward in the enhancement of openness can be supported only half-heartedly.

Finally, a few words on the impact of the Constitution. The Treaty establishing a Constitution for Europe was formally signed in Rome on 29 October 2004. Ratification will presumably take a year or two, thus entry into force is envisaged by November 2006.[111] It cannot be predicted now how this totally new environment will change the functioning of the European Union, and to what extent citizens and national parliaments will avail themselves of the new possibilities. From the perspective of our investigation, the entry into force of the Constitution presumably adds nothing radically new, apart from the effect the amended institutional structure and the simplified legal acts might have in general on the democratic set-up of the Union.

List of cases

Opinion 2/94. Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms. [1996] ECR I-1759

Netherlands v. Council. Case C-58/94. [1996] ECR I-2169

John Carvel and Guardian Newspapers Ltd. v. Council. Case T-194/94. [1995] ECR II-2765

WWF UK v. Commission. Case T-105/95. [1997] ECR II-313

Interporc Im- und Export GmbH v. Commission (Interporc I) . Case T-124/96. [1998] ECR II-231

Interporc Im- und Export GmbH v. Commission (Interporc II) . Case T-92/98. [1999] ECR II-3521

Interporc Im- und Export GmbH v. Commission (Interporc II). Appeal. Case C-41/00 P. [2003] ECR I-0000 (not yet reported)

Gerard van der Wal v. Commission. Case T-83/96. [1998] ECR II-545

Netherlands and van der Wal v. Commission. Joined cases C-174/98 P and C-189/98 P. [2000] ECR I-1

Svenska Journalistförbundet v. Council. Case T-174/95. [1998] ECR II-2289

Rothmans International BV v. Commission. Case T-188/97. [1999] ECR II-2463

Bavarian Lager v. Commission. Case T-309/97. [1999] ECR II-3217

Heidi Hautala v. Council. Case T-14/98. [1999] ECR II-2489

Council v. Heidi Hautala. Appeal. Case C-353/99 P. [2001] ECR I-9565

Denkavit Nederland BV v. Commission. Case T-20/99. [2000] ECR II-3011

JT's Corporation Ltd. v. Commission. Case T-123/99. [2000] ECR II-3269

Olli Mattila v. Council and Commission. Case T-204/99. [2001] ECR II-2265

Olli Mattila v. Council and Commission. Case C-353/01 P. [2004] ECR I-0000 (not yet reported)

British American Tobacco v. Commission. Case T-111/00. [2001] ECR 2997

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David Petrie et al. v. Commission. Case T-191/99. [2001] ECR II-3677

Aldo Kuijer v. Council (Kuijer I). Case T-188/98. [2000] ECR II-1959

Aldo Kuijer v. Council (Kuijer II). Case T-211/00. [2002] ECR II-485

British American Tobacco v. Commission. Case T-311/00. [2002] ECR II-2781

Pitsiorlas v. Council and European Central Bank. Order of the CFI. Case T-3/00. [2001] ECR II-717

Pitsiorlas v. Council and European Central Bank. Appeal. Case C-193/01. [2003] ECR I-4837

Mara Messina v. Commission. Case T-76/02. [2003] ECR II-0000 (not yet reported)

Co-Frutta Soc.coop.rl v. Commission. Case T-47/01. [2003] ECR II-0000 (not yet reported)

IFAW Internationaler Tierschutz-Fonds GmbH v Commission.

Case T-168/02. (2004) ECR II-0000 (not yet reported)

Documents

Treaty establishing a Constitution for Europe. Available on: http://europa.eu.int/constitution/index_en.htm

Decision 93/731 on public access to Council documents, 1993 OJ L 340/43

Decision 94/90 on public access to Commission documents, 1994 OJ L 46/58

Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2000 L 145/43

Commission (2003): Report from the Commission on the application in 2002 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents. COM(2003)0216 final

Commission (2004a): Report from the Commission on the implementation of the principles in EC Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. COM(2004)45 final

Commission (2004b): Report from the Commission on the application in 2003 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents. COM(2004)347 final

Council (2003): Annual report of the Council on the implementation of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. Brussels, 14 May 2003.

Select bibliography

Arnull, Anthony (2004): The Community Courts. In: Cini, Michelle (ed.): European Union Politics (Oxford University Press, 2004), pp. 179-191.

Chryssochoou, Dimitris N. (2004): EU democracy and the democratic deficit. In: Cini, Michelle (ed.): European Union Politics (Oxford University Press, 2004), pp. 365-382

Cini, Michelle (2004): Implementation. In: Cini, Michelle (ed.): European Union Politics (Oxford University Press, 2004), pp. 349-364.

Coppel and O'Neil (1992): The European Court of Justice: Taking Rights Seriously? 29 CML Rev (1992) 669-692

Craig, Paul (1999): The Nature of the Community: Integration, Democracy, and Legitimacy. In: Craig, Paul -De Búrca, Gráinne (eds.): The Evolution of EU Law (Oxford University Press, OUP, 1999), pp. 1-54.

De Leeuw, Magdalena Elisabeth (2003): The Regulation on public access to European Parliament, Council and Commission documents in the European Union: are citizens better off? 28 European Law Review (2003) 324-348

Horváth Zoltán - Tar Gábor (2004): Az Európai Parlament (2004, Földkör Kiadó)

Nugent, Neill (2003): The Government and Politics of the European Union (2003, Palgrave)

Newman, Michael (2001): Democracy and Accountability in the EU (357-374) In: Richardson, Jeremy (ed.): European Union. Power and policy-making (2nd edition), (Routledge 2001)

Roberts, Alasdair (2002): Multilateral Institutions and the Right to Information: Experience in the European Union. European Public Law, Volume 8 Issue 2 (2002), pp. 255-275

http://faculty.maxwell.syr.edu/asroberts/documents/journal/epl_2002.pdf

Roberts, Alasdair (2004): A Partial Revolution: The Diplomatic Ethos and Transparency in Intergovernmental Organizations. Public Administration Review, July/August 2004, Vol. 64, No. 4. pp. 410-424. Also available on:

http://faculty.maxwell.syr.edu/asroberts/documents/journal/Roberts_PAR_Revolt_2004.pdf

Smith, Julie (2002): Legitimacy and Democracy in the EU. In: Jackie Gower (ed.): The European Union Handbook (2002, London - Chicago), pp. 64-72 ■

NOTES

[1] Smith (2002) p. 71. See the bibliography for further details.

[2] For the sake of simplicity, hereinafter I use the words "European Union" whenever referring to the European Communities or the European Union. Obviously, I am aware that the Union was established only by the Maastricht Treaty (1992), and I am also aware of the differences between the three Communities and the Union in terms of legal personality and competences. - The Constitution simplifies matters in this regard: the Union is accorded a single legal personality (Articles I-1 and I-7). However, Member States decided that the provisions of the Euratom Treaty should continue to have full legal effect, with only the necessary institutional and financial adjustments. See Protocol No. 36 amending the Treaty establishing the European Atomic Energy Community.

[3] Craig (1999) p. 6.

[4] European Parliament, 1988, Toussaint Report, PE 111.236/fin. 1, February 1988, pp. 10-11. Cited in Chryssochoou (2004) p. 366.

[5] McCormick, J.: Understanding the European Union (Basingstoke: Macmillan, 1999) p. 147.

[6] Lord, C.: Democracy and Democratization in the European Union. In S. Bromley (ed.): Governing the European Union (London: Sage, 2001), p. 165.

[7] Eriksen and Fossum: Democracy through strong publics in the European Union. 40 Journal of Common Market Studies (2002), 401-24, at 401. - "The fact that voters are so far removed from the EU's decision-making processes means that they frequently feel they are unable to influence the process at all, and this can lead to resentment and a lack of social legitimacy." Smith (2002) p. 69. The author argues that the EU is legally legitimate, yet it lacks social legitimacy. Ibid. p. 71.

[8] Chryssochoou (2004) pp. 365, 366.

[9] See e.g. Weiler, Haltern and Mayer: European Democracy and its Critique. In: Hayward, J. (ed.): The Crisis of Representation in Europe (Frank Cass, 1995); Weiler: European Models: Polity, People and System. In: Craig, P. and Harlow, C. (eds.): Lawmaking in the European Union (Kluwer, 1998), chap. 1.

[10] The Act Concerning the Election of the Representatives of the Assembly by Direct Universal Suffrage, signed in 1976.

[11] Smith (2002) p. 67, Nugent (2003) p. 455.

[12] Hrbek, Rudolf: Europawahl 2004: neue Rahmenbedingungen - alte Probleme. Integration 3/2004, 211-222, at p. 214. See also: Horváth Zoltán - Tar Gábor: Az Európai Parlament (2004, Földkör Kiadó) - A választói részvétel - p. 63. Further details are available on:

http://www.elections2004.eu.int/ep-election/sites/en/results1306/turnout_ep/index.html

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[13] Smith (2002) p. 66.

[14] The cooperation and the assent procedures were introduced by the Single European Act (1986), the codecision procedure was introduced by the Maastricht Treaty (1992). With regard to budgetary powers, see the Treaty Amending Certain Budgetary Provisions of the Treaties (1970) and the Treaty Amending Certain Financial Provisions of the Treaties (1975).

[15] See e.g. Horváth Zoltán - Tar Gábor: Az Európai Parlament (2004, Földkör Kiadó) - Chapter 6 (Az Európai Parlament hatáskörei), pp. 127-168.

[16] The European Parliament has no veto under consultation and cooperation procedure.

[17] E.g. trade agreements under Article 133 TEC.

[18] Nugent (2003) pp. 203-204.

[19] Nugent (2002) pp. 206-212.

[20] Horváth-Tar (2004) p. 160.

[21] Nugent (2002) p. 207.

[22] E.g. customs and excise authorities, veterinary inspection teams, Ministries of Agriculture. Nugent (2002) pp. 135 and 466.

[23] Newman (2001) p. 362.

[24] Newman (2001) p. 362.

[25] The principle of subsidiarity was introduced by the Maastricht Treaty (1992), and was further elaborated by subsequent Treaty amendments. See the Protocols attached to the Treaty of Amsterdam (1997) and the Constitution (2004).

[26] Committee of the Regions, retrieved from: xhttp://www.cor.eu.int/en/presentation/Role.htm

[27] Smith (2002) p. 69.

[28] Protocol on the role of national parliaments in the decision-making process. It provides that national parliaments shall have all the strategic documents produced by the Commission at the same time as the EP and the Council. The same applies for legislative proposals, and national parliaments shall have minutes from the legislative Council's meetings at the same time as national governments.

[29] National parliaments have a say over whether legislation at European level has respected the subsidiarity principle. See the Protocol on the application of the principles of subsidiarity and proportionality. The Protocol introduces a mechanism: national parliaments can send a reasoned opinion regarding subsidiarity and proportionality.

[30] Newman (2001) p. 365. - The institutional crisis over the appointment of the Barroso Commission at the end of 2004, however, shows the shift in the balance of power between the three main European institution (Parliament, Commission, Council). The original vote of approval was postponed - mainly due to the controversy surrounding the Italian candidate for Commissioner. In the words of a commentator: "... MEPs had effectively muscled in on member states' jealously guarded right to send whomever they like to Brussels." 18 November 2004, Retrieved from: http://www.euobserver.com/?aid=17790

[31] Chryssochoou (2004) p. 369.

[32] Chryssochoou (2004) p. 371.

[33] Arnull (2004) p. 189.

[34] Newman (2001) p. 359.

[35] Nugent (2003) pp. 453-454.

[36] Nugent (2003) p. 455.

[37] Newman (2001) p. 370.

[38] Rees, N. and Holmes, M.: Capacity, Perceptions and Principles: Ireland's Changing Place in Europe. 2002 Current Politics and Economics of Europe, 11(1), pp. 49-60, at p. 49.

[39] See http://www.esc.eu.int

[40] NB: about three-quarters of EU legislation is implemented at local or regional level.

[41] See http://www.cor.eu.int/en/presentation/Role.htm The CoR was established in 1994.

[42] Nugent (2003) pp. 263-267.

[43] E . g. COPA - Committee of Agricultural Organisations in the European Union, BEUC - European Bureau of Consumers' Association, ACEA - Association of European Automobile Constructors, ETUC - European Trade Union Confederation. See further Nugent (2003) pp. 280-292; Eising (2004) pp. 192-207.

[44] Eising (2004) p. 206.

[45] Constitution, Article I-47, paras 1-3. See also Article I-48 on the social partners and autonomous social dialogues, and Article I-52 on the status of churches and non-confessional organisations, providing for regular dialogue with these interests.

[46] Article IV-443 of the Constitution. The Convention model is not compulsory: "The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments." See also the so-called simplified revision procedures: Articles IV-444 and 445.

[47] Article I-47(4).

[48] Newman (2001) p. 363.

[49] Obviously, the situation is much more complex. See e.g. the decline of the rule of unanimity on the hand hand, and the symptomatic trend towards a search for "consensus" as opposed to reliance on the results of formal voting. Bowett's Law of International Institutions (edited by Sands, P. and Klein, P.), London: Sweet & Maxwell, 2001, especially at pp. 263-266.

[50] Despite Treaty provisions allowing for qualified majority voting, until the mid-1980s unanimity was sought by the Member States as a result of the Luxembourg Compromise of 1966.

[51] Nugent (2003) p. 349.

[52] Newman (2001) p. 366. See also Smith (2002) p. 68.

[53] There are three different types of committees (advisory, management and regulatory committees). For further details see Council Decision 1999/468/EC Laying Down the Procedures for the Exercise of Implementing Powers Conferred on the Commission; OJ 1999 L 184/23. See also Cini (2004) p. 354; Nugent (2003) pp. 136-140; Hix, S.: The Political System of the European Union, (1999) Basingstoke: Macmillan; pp. 41-45.

[54] Nugent (2003) p. 138. - "Neither the manner of appointment to the committees, nor the ways in which they operate, are transparent, and it is not clear that there are any clear channels for the control and scrutiny of their activities." Newman (2001) p. 368. - See however the following documents providing detailed information and statistics: Report from the Commission on the working of committees in 2000, 2001 and 2002: COM(2001)783 final, OJ 2000 C 37/2; COM(2002)733 final, OJ 2003 C 223 E/1; COM(2003)530 final, OJ 2003 C 223 E/16, respectively.

[55] Emphasis added. The words in italic were introduced by the Treaty of Amsterdam.

[56] Emphasis added. See also Article 255 TEC, in greater detail below.

[57] Weiler, Haltern and Mayer: European Democracy and its Critique. In: Hayward, J. (ed.): The Crisis of Representation in Europe (Frank Cass, 1995) p. 5. See also: Weiler, Joseph: European Citizenship - Identity and Differentity, in La Torre, Massimo (ed.): European Citizenship: An Institutional Challenge. pp. 1-24.

[58] Chryssochoou (2004) pp. 373-74.

[59] See the symbols of the Union: European flag, anthem, motto, currency - at least for the euro-zone - and Europe day. Article I-8 of the Constitution.

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[60] Newman (2001) p. 371.

[61] Coppel and O'Neill (1992) p. 669

[62] Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 1950), CETS No.: 5.

[63] The institutions frequently refer to the Charter; it is invoked by Member States and citizens in particular through the petitions submitted to the EP and the complaints lodged with the European Ombudsman; it also serves as an aid of litigation in the European Courts. See e.g. European Parliament Resolution on the impact of the Charter of Fundamental Rights of the European Union and its future status (2002/2139(INI)), OJ 2003 C 300 E/432.

[64] Article I-9 of the Constitution. The Draft prepared by the Convent ran as follows: "(2) The Union shall seek accession" to the ECHR. Retrieved from: http://european-convention.eu.int/docs/Treaty/cv00850.en03.pdf In the final version the word "seek" disappears, leaving a stronger commitment - in fact, an obligation: "the Union shall accede" to the ECHR. Obviously, a mutually satisfactory solution must be found with the other contracting parties to the ECHR. - See also Protocol No. 32 Relating to Article I-9(2) of the Constitution on the Accession of the Union to the European Convention on the Protection Of Human Rights and Fundamental Freedoms.

[65] Roberts (2004) p. 411.

[66] Cited by Roberts (2004) p. 411.

[67] Case T-111/00 BAT, para. 51.

[68] Carvel, para. 52.

[69] See e.g. Roberts (2002); Komanovics, A.: Transparency. Access to documents in the European Union. Bebesi-Andrássy (editors): Accession to the European Union - Social Prerequisites and Consequences. IPF series (University of Pécs), (Szekszárd, 2000) pp. 73-89; Komanovics, A.: Transparency in the European Union. The edited version of the presentation given in the Conference organized by Law Faculty of the University of Pécs (Law and Lawyers at the Doorstep of the 21st Century) (Pécs, 2004) pp. 121-150; Michael O'Neill: The Right of Access to Community-Held Documentation as a General Principle of EC Law, 4 European Public Law (1998) 403.

[70] Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2000 L 145/43.

[71] Right on 4 December 2001 the first application(s) arrived. See Messina, where the applicant applied for disclosure of certain documents by a letter of 4 December 2001.

[72] Decision 93/731 on public access to Council documents, 1993 OJ L 340/43; Decision 94/90 on public access to Commission documents, 1994 OJ L 46/58. Other Community institutions and organs also adopted similar decisions.

[73] De Leeuw (2003) p. 325.

[74] Articles 2(1) and (2).

[75] Article 6(1).

[76] Article 3.

[77] Article 11.

[78] The three institutions stated that the agencies and similar bodies created by the legislator should have rules on access to their documents which conform to those of the Regulation. See Joint Declaration relating to Regulation 1049/2001, OJ 2001 L 145/43.

[79] During the review of the regulations establishing the agencies, a provision was included in the founding instruments making Regulation 1049/2001 applicable to them. The Committee of the Regions, the Economic and Social Committee, the Court of Auditors, the European Investment Bank and the European Central Bank adopted their own access rules. See Commission (2004a) point 2.1.3.

[80] See e.g. the problem connected with "comitology committees" (Case T-188/97 Rothmans, [1999] ECR II-2463 and Case T-111/00 BAT, [2001] ECR II-2997.

[81] Article 2(3).

[82] Article 4(4).

[83] De Leeuw (2003) p. 337.

[84] Article 4(5), emphasis added. This provision reflects Declaration No. 35 attached to the Final Act of the Treaty of Amsterdam: "The Conference agrees that the principles and conditions referred to in Article 191a(1) [new numbering: 255] of the Treaty establishing the European Community will allow a Member State to request the Commission or the Council not to communicate to third parties a document originating from that State without its prior agreement."

[85] It also is clear from recital 15 in the preamble of the Regulation that it is neither the object nor the effect of the Regulation to amend national legislation on access to documents. See also Messina, para. 41.

[86] Case T-168/02, IFAW Internationaler Tierschutz-Fonds GmbH v Commission. The Court found that the Commission did not infringe Article 4 of the Regulation by adopting the contested decision following a request from Germany under Article 4(5) of that regulation not to disclose certain documents emanating from Germany. Paras. 63-64.

[87] Article 230 TEC, application for annulment.

[88] Article 195 TEC.

[89] Article 12(1).

[90] Article 15.

[91] Article 4(3). Also called as "space to think".

[92] Partial access, Article 4(6). This clearly puts an end to the debate whether public access rules relate to documents or information.

[93] Commission (2004a) point 1.2.

[94] Commission (2004a) point 3.4.5.

[95] Article 9.

[96] It is legally questionable whether the Public Access Regulation could impose obligations on Member States. The legal base (Article 255 TEC) refers only to the three Community institutions. De Leeuw (2003) p. 341.

[97] Recital 15 of the Preamble: "... it is neither the object nor the effect of this Regulation to amend national legislation on access to documents ."

[98] De Leeuw (2003) p. 340: "Disclosure by Member States of EU documents, in the face of a negative EU opinion regarding access would presumably jeopardise the objective of the Public Access Regulation."

[99] See e.g. Recital 2 of the Preamble.

[100] Generally 15 working days. Commission (2004a) point 2.2.3.

[101] Council (2003) p. 7.

[102] Ranging from 6.2 per cent (Environment), 4.8 per cent (Agriculture), 4.4 per cent (Health and Consumer Protection) to 0.1 per cent (Humanitarian Aid and Statistical Office). Commission (2003) p. 23.

[103] Commission (2004b) points 4.1., 4.2. and 4.3.

[104] Council (2003) p. 8.

[105] Roberts, Alasdair: Access to Government Information: An Overview of Issues. The Carter Center, Atlanta, May, 1999. Downloaded from: http://www.transparency.org/working_papers/roberts/roberts.foi.html Roberts argues that in most cases public access can be regarded as the basic right to due process of law and equality.

[106] The democratic life of the Union; Articles I-45 to I-52. See also the rules on Union Citizenship and the Charter of Fundamental Rights, which became an integral part of the new Treaty of Rome. The official version of the Constitution can be found on http://europa.eu.int/constitution/index_en.htm

[107] Article I-45.

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[108] Decisions shall be taken as openly as possible and as closely as possible to the citizen; Article I-46.

[109] Part II, Title V of the Constitution (Citizens' Rights), Articles II-101 and II-102.

[110] Craig (1999) pp. 26-27.

[111] See Article IV-447 of the Constitution.