Posts Tagged ‘transparency’

On March 7, 2012, the US Trade Representative Ron Kirk testified before the Senate Finance Committee. Senator Wyden (D-OR) asked him about the Anti Counterfeiting Trade Agreement (ACTA), in particular the transparency issues.

(watch the audience) – “Rough Transcript” by A. Stamoulis

In particular it is interesting for me that Ron Kirk explains the practice to enable Treaty insights for cleared advisors while the ordinary Americans were locked out from viewing the documents. He also argued no one would want to negotiate a trade agreement when the documents are put out.

I watched the whole session, not only Wyden’s part you find in the video. What suprises me is the superficiality of discussions in the United States, the bias towards opening foreign markets as a job creation effort around Senators constituency issues like poultry, pork and shirts. The appraisals and the spirit of formally agreeing with each other and the offers to “work together” on issues.

It is interesting to compare that with a meeting in the European Parliament Trade committee (24 Feb 2010) where EU negotiator Luc Devigne explained the document lobby leak issue and defended a lack of public transparency:

It should be reminded that this is an[!] international negotiations and that the parties um around the table have said that they did not want that their negotiating positions which belong to them want[!] to be revealed. We cannot betray, if you want, these kinds of rules. .. But one thing that I want to make clear because, I think, it was Mrs Weird [?] saying that lobbyists have documents. Which – I don’t know where they would come from. But certainly not from the Commission.  We do not share any document with any lobbyist. That is very clear.

In the hearing Ron Kirk openly confessed that they have leaked the joint documents to cleared non-governmental advisors. These were documents kept from the American public and the European public despite Treaty obligations of the European Commission under Article 15(1)  TFEU to conduct their work “as openly as possible”. It is still unclear to me under which legal base from the Treaties the EU Commission entered confidential deliberations on the ACTA agreement. Certainly it is not acceptable that documents got leaked and the first text were later published by the notorious Wikileaks site, not public bodies. On both sides of the Atlantic the public should be able to see what legal provisions are being negotiated and I congratulate Mr. Wyden for his effort to acknowledge a change of the game. In his own words:

There is no question, that is the way it used to work. And I think. What the public is saying, we got to do better…


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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 European Council seeks a backroom deal with the European Parliament on the controversial copyright extension plans. A meeting is scheduled at the April 29.

Attachés will examine the possibility of a first reading agreement with the European Parliament on the Term Directive (8898/09). The meeting will take place in Presidency Room No 1, floor 50. N.B. Participation is limited to Attachés only

The short phrase “Term Directive (8898/09)” stands for the very controversial

Term of protection of copyright and related rights (amending Directive 2006/116/EC) (Directive) 2008/0157 COD 24/07/2008, 12217/08 COM(2008) 464.

Of course no one ever used the phrase “term directive” before. In the European Parliament:

Parl. Ctee: JURI – LEHNE, Klaus-Heiner
Rapp.: Brian CROWLEY (UEN-IE)

A document adopted in Parliament one year ago and then put to coma was registered at the Council under the document number 8898/09. For more obfuscation the document is available only in French from the Council register:

Proposition de directive du Parlement européen et du Conseil modifiant la directive 2006/116/CE du Parlement européen et du Conseil relative à la durée de protection du droit d’auteur et de certains droits voisins – Résultats de la première lecture du Parlement européen (Strasbourg, du 21 au 24 avril 2009) PDF 30-04-2009

Why the clandestine approach on the Council side? Why don’t they reference the correct dossier name and procedure? I assume you may find the answer in the delicate substance of the proposal. I remember I met an economist in Parliament who tried to get the results of his research to the attention of MEPs, and basically saw the dossier as a great scam.

The dossier became widely known informally as the “Cliff Richard pension fund” because it was promoted by aging UK rock musicians, a kind of special gift to the music industry by the outgoing Commissioner. I haven’t monitored the dossier any further. In any case, outrageous policy making.

Here the OEIL file on COD/2008/0157, Prelex interinstitutional overview,

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So here is a new ACTA related document:

Document Number: 17779/09
Title: Anti-Counterfeiting Trade Agreement (ACTA)
Content: (!) N/A
Interinstitutional File:
Subject Matter: DROIPEN 166
PI 146
WTO 283
Document Category:
Document Date: 23-12-2009
Date of Meeting: 12-01-2010
Archive Date: 10-01-2010
Document Language: EN

How do you request it? Very simple, fill out the form and enter the document number 17779/09 as the document you request. Then the Council secretariat has 15 days to respond, either it would grant you access or submit the reasons for refusal.

Here is stops for most persons. You have again 15 days for a “confirmatory application”. When the confirmatory application is denied you can complain to the EU-Ombudsman or sue the Commission.

The document above looks to me like the draft for the answer to a parliament question.

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I am getting an error with the embedded scan now when using Opera. I assume that is scribd’s fault, I had no problem yesterday and firefox is just fine. I’ll check later.

I promised to provide a scan of the secondary application answer (I am sure you can find also found a draft version in English in the Council document archives):

A few quick notes:

  • The Council secretariat claims that Article 15(2) TFUE, our improved citizens right to public document access under the Lisbon treaty, does not apply to ACTA and similar trade processes, even when they relate to legislative procedures as is clearly the case here, because a trade process was not of legislative nature.
  • The document says that 1049/2001/EC Art 4 (1) letter a overrules even a parliament motion. I would argue that rapporteur Mr. Cashman really needs to address that. It is a common lame excuse of the Council in terms of document access. If the recast of 1049/2001/EC should have any effect it needs to clarify that provision.
  • The document reveals some public details about ACTA.
  • The first reply used the false provision to deny me access, now it is Art 4(1) a third intent (“international relations”).
  • The Council fakes the statistics by granting me partial access but that is merely a joke as you can see.

Formally, I could go to Court now or invoke the ombudsman.

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Quick and hasty update. Today I finally got an answer from the European Commission concerning my confirmatory request for document access. As expected it was denied. Basically I contested several arguments and the reply did not get much into details. For quite some time I am interested in document access regulation and the tricky questions on how to draw the line.

As a result of my request, a document was “released”. A few days ago the FFII association launched a twitter joke related to that document:

#Commission unveils #ACTA criminal enforcement chapter http://register.consilium.europa.eu/pdf/en/09/st14/st14696-ex01.en09.pdf #fail

From a mere citizen perspective in a liberal-democratic order I feel slightly scared by the secrecy and policy laundry from DG Trade. It explains why TRIPs as a trade process was a very dangerous precedent. A huge scandal is characterized by the amount of complaints. Can there be a scandal without notice and uproar? We don’t have a good phrase for the silent case. While the interested public now pays closer attention to ACTA it is of course all negotiated in parallel with bilateral talks, for instance the Korea-EU Trade Agreement comprises ACTA provisions. The usurpation of legislature by trade administration is a generic weakness of our order. Strange how the Commission is able to negotiate with third nations over related criminal provisions while there are no criminal provisions on the matter in the acquis communautaire. In the Council the member states fail to get common grounds on a proposed IPRED2 directive with criminal provisions.

Translated from my eurochinese: As there is no “EU criminal law”, the European Commission has probably technically no competence for the matter. While the corresponding EU-legislative project remains stalled because of EU member states dissent in the Council, the European Commission negotiates the same legislative aspects with nations outside the EU, trying to reach an agreement which would also bind EU legislators.

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A press release of access-info I reproduce here for your interest:

European Court of Human Rights takes a huge step

towards recognising Right of Access to Information

Madrid, 14 April 2009: Access Info Europe welcomes today’s ruling by the
European Court of Human Rights in which it recognises that when public
bodies already hold information that is needed for public debate, the
refusal to provide it to those who are seeking it is a violation of the
right to freedom of expression and information.

In this case the Hungarian Civil Liberties Union asked Hungary’s
Constitutional Court to disclose a parliamentarian’s complaint questioning
the legality of a new drugs policy law. The Constitutional Court refused to
release the information. The European Court of Human Rights found this
refusal to be a violation the European Convention on Human Rights.

The Court’s decision refers to the “censorial power of an information
monopoly” when public bodies refuse to release information needed by the
media or civil society organisations to perform their “watchdog” function.

Ádám Földes, lawyer with Access Info, who worked previously with the
Hungarian Civil Liberties Union and was deeply involved in the preparation
of this case, said “this extension of freedom of expression to the right to
request and receive information from public bodies is a huge step towards
full recognition of the right of access to information.”

Access Info notes that the Court decision itself refers to recent judgments
in which it has moved “towards the recognition of a right of access to

“This ruling is a cautious confirmation that the right of access to
information is a human right” added Helen Darbishire, Executive Director of
Access Info Europe.

Today’s ruling from the European Court of Human Rights has a number of other
important features:

* The Court extends the traditional protection of the media as “public
watchdogs” to civil society groups who it says have a “social watchdog”
* The Court states that use of protection of privacy to refuse to make
public information relating to the opinions of public figures on matters of
public interest would be “fatal for freedom of expression”;
* The State now has an obligation not to impede the flow of
information needed for public debate on matters of public importance. In
other words, that the public has a right to ask and public bodies have an
obligation to answer: to do otherwise would be a violation of freedom of
* The decision refers to a parliamentarian and a constitutional court
which implies that the scope of the right of access to information does only
apply to the executive branch of power.

Access Info notes that this ruling comes just five months after the Council
of Europe adopted the world’s first binding treaty on the right of access to
information, the Convention on Access to Official Documents (click
here to read
this new Convention). The importance of the ruling is that it reinforces the
right enshrined in the European Convention on Human Rights and in the new
Convention on Access to Official Documents by underlining the State’s
obligation to provide the public with information it holds.

Over 80 countries globally have laws that guarantee the right of access to
information. In Europe 40 of the 47 members of the Council of Europe have
such laws but implementation is often imperfect and monitoring studies show
that many requests by the public for government information go unanswered or
are denied. In addition, 24 Constitutions in Europe recognise the right of
access to information.

The European Court’s Decision can be found at:

Case of Társaság a Szabadságjogokért v. Hungary (Application no. 37374/05)

and on the Access Info Europe website http://www.access-info.org

For more information, please contact:

· Helen Darbishire, Executive Director, Access Info Europe

+ 34 667 685 319

· Ádám Földes, Lawyer and Project Manager, Access Info Europe

+ 34 622 468 736

Access Info Europe is a human rights organisation based in Madrid which
works to promote and defend the right of access to information by promoting
the transparency of national and international public bodies

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