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Posts Tagged ‘EC/1049/2001’

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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From a confirmatory application we learn about dissent from Finland and Sweden:

FI: “Even if FI is of the view that Article 4(1)(a) of the Regulation 1049/2001 concerning the protection of international relations is applicable, it appears that the possibility of extended partial access in accordance with Article 4(6) of the Regulation has not been thoroughly considered.”

SE: “Further partial access should be granted to documents 13382/08, 15588/08, 17249/08, 12076/09 and 5363/10, since there are additional parts that are not covered by the secrecy exception in article 4(1)(a) third indent.”

The Permanent Representatives Committee is accordingly asked to suggest that the Council, at its next meeting:
– record its agreement to the draft reply annexed to this document, as an “A” item, with the Finnish and Swedish delegations voting against,
– decide to publish the result of the vote

I believe a general misconception on behalf of the Council is that EC/1049/2001 puts any constraints on the member states to grant access to Council documents. That may apply to the Council secretariat in its primary application but it does not apply to the Council when answering confirmatory applications. EC/1049/2001 defines the principles and limitations underlying the Citizen’s legal right to public documents. It does not put constraints on the Council to go beyond that. To overcome this confusion wording like “shall” in the context of constraints has to be eliminated from 1049.

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The General Secretariat has weighed my “interest in being informed of progress in this area against the general interest that progress be made in an area that is still the subject of negotiations”… “As there is no evidence suggesting an overriding public interest to warrant disclosure of the document in question, the General Secretariat has concluded that protection of the decision-making process outweighs the public interest in disclosure.”

I wonder if I should write a confirmatory application. In particular it seems that the person who wrote the letter was not very experienced with EC/1049/2001 applications.

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