Commission’s misconceptions about recasting – Cashman Public Access report

The European Commission in its consideration of the amendments adopted by the European Parliament on the Cashman report (Public Access to Documents) wrote:

The following amendments touch upon parts of the Regulation which the Commission did not propose to amend. In the Commission’s view, they are not compliant with the Inter-institutional Agreement on Recasting:

This is a misconception, though a common one. Recasting is not any different from the ordinary legislative procedure. It is just a presentation technique as the inter-institutional agreement shows. The recasting technique does not limit what Parliament may change of the recasted act. The purpose of “recasting” is to avoid a later codification of the text by doing amending act and codification in a single process.

Interinstitional Agreement, 2002/C 77/01, Provision 8 clarifies the process for provisions that were left unchanged by the Commission proposal:

“Where, in the course of the legislative procedure, it appears necessary to introduce substantive amendments in the recasting act to those provisions which remain unchanged in the Commission’s proposal, such amendments shall be made to that act in compliance with the procedure laid down by the Treaty according to the applicable legal basis.

With other words, Parliament could amend as it likes. The recast technique enables as much freedom to amend as the ordinary legislative procedure. The only difference is that a Commission recast proposal is easier to read and there won’t be a need for later codification.

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The Public Access Recast: new broad IPR exemption to transparency

In its recast of the Public Access to Documents implementation the Commission proposed a remarkable change to Article 4 (exemptions), paragraph 2:

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:
(a) commercial interests of a natural or legal
person,; including intellectual property,
(b) intellectual property rights;
…

It is quite important to get the legal difference of what appears to be an editorial fix, and how it limits access to documents. Right now Commercial Interests are overriding transparency (commercial interests include IP), in the future we would get a new broad standalone item (protection of) “IPR” which would comprise moral rights. I was wondering what the specific reason for this dramatic change was. In a Council document we get the explanaition why former Commissioner Margot Wallström introduced that to COM(2008) 229:

“Cion. explained that the provision concerning the protection of “commercial interests” and “intellectual property” had been split into two separate exceptions for the following reasons: As set out in Article 4 (4) of the recasting proposal (see below), the public interest in disclosure of information concerning emissions into the environment overrides by definition the protection of commercial interests, but not necessarily the protection of intellectual property rights. This means in practice, that there is no need for a balancing of interests, in as far as the principle laid down in Article 4 (4) second sentence applies, whereas such a balancing should be made, where disclosure could harm the protection of intellectual property rights or other interests to be protected under Article 4 (2) and 4 (3).”

In other words, they created a broader IPR exemption to transparency to make it more difficult to obtain information and found that IPR as an argument could be easier applied to deny access to documents. I wonder why Parliament under its rapporteur MEP Michael Cashman did not attempt to revert it.

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