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Submission of the 1 June 1999

The Irish Business and Employers Confederation (IBEC)(1) welcomes the publication of the European Commission’s Green Paper on Public Sector Information in the Information Society. We consider it a useful first step in the process leading to the full implementation, by May 2001, of the new obligations incumbent upon the Commission, Council and Parliament governing the right of public access to documents. Having regard to the invitation for submissions from interested stakeholders, and Commissioner Bangemann’s subsequent appeal at the Telecommunications Council on 22 April for a broad range of inputs, IBEC, in its capacity as a recognised representative of industry, brings forward in this paper its concerns and recommendations on access to information in respect of the public policy making process of the European Union.

The recent entry into force of the Amsterdam Treaty, and in particular the new Article 255, stipulates that any EU citizen or company shall have the right of access to documents of the three institutions. This will be subject to restrictions in respect of public or private interest, to be defined by a Decision or Directive adopted according to the co-decision procedure. This legislation, in addition to specific Rules of Procedure to be subsequently approved by each institution, must be in force within two years, dated from last 1 May. Before entering into the detail of our recommendations on some of the questions posed in the Green Paper, IBEC calls in the first instance on the Commission (in accordance with its role as Guardian of the Treaties) to adhere strictly to the above timetable.

IBEC welcomes the effective acknowledgement by the Commission within the Green Paper that the lack of transparency, endemic in many of its services, forms a ‘substantial’ barrier for businesses wishing to take advantage from the undoubted benefits offered by the internal market. We are concerned therefore about the clear reliance in the Green Paper on the spirit and letter of the earlier 1990 Directive (90/313/EEC) on access to information in the environmental sector. This legislation had affirmed the principle that a request for information could be refused if it involved the supply of unfinished documents or data or internal communications. While IBEC does not contest the need to keep some draft documents confidential, we have grave reservations about the ongoing refusal to make available data, and in particular scientific data, which is used in the formulation of subsequent legislation. In addition, we would consider that a very precise definition of what constitutes an ‘internal communication’ should be established in the course of this process, with due regard at all times to the obligations stemming from Article 255.

Most importantly, in the ‘information society’ context in which the current Green Paper is written, we believe that access to public information should no longer be framed in terms such as ‘requests for information’: rather information which is deemed accessible to individuals and companies must in the future be readily available through modern information technologies such as the Internet (without formal requests being necessary, except in the case of very specific queries). In particular, the websites of the particular Directorates General of the European Commission seem particularly well suited to a radical extension of relevant documents in all sectors in which the EU has competence. This would constitute a significant advance on the current website policy of providing little other than general summaries of issues, helpful and all as these may be nonetheless.

Below are IBEC’s responses to the questions posed in the Green Paper. However in our opinion, certain pertinent questions, which did not appear, should form key issues in the unfolding debate over the coming year. For example, this process should aim to achieve accepted definitions of what constitutes data, information, access to commercially sensitive information and the rights of impacted parties, i.e., stakeholders likely to be affected by any policies or measures which might derive from or be based on the information in question.

Question 1

What categories of public sector information should be used in the debate?

Industry considers, among other information, the scientific, environmental and related data to be of key importance in this debate.

Question 7

Do privacy considerations deserve specific attention in relation to the exploitation of public sector information?

Industry does not contest the need for special provisions to protect certain sectors of public sector information. Areas such as Pillars II and III of the EU Treaty and large parts of Competition policy within the EC Treaty will need to be addressed more sensitively in opening them up to transparency provisions.

Question 8

To what extent may the different Member States’ liability regimes represent an obstacle to access or exploitation of public sector information?

The 1997 Freedom of Information Act in Ireland, now in force, constitutes a significant advance in achieving greater transparency relating to the public service, consistent with the accepted restrictions on privacy and the public interest. The Irish Business and Employers Confederation, has along with other interested parties, used the new legislation to the fullest extent possible. This model should serve, in our view, as a minimum standard for levels of transparency in the Community Institutions. Meanwhile, other Member States, as clearly set out in the comprehensive Annex 1 to the Green Paper, operate much more restrictive regimes. We would be concerned, in the medium term, if the more limited public access to documents in other countries were used as an excuse by the European institutions, and in this instance particularly the Council of Ministers, to prevent the disclosure of Community documents relating to mixed competence issues.

Question 9

To what extent are the policies pursued by the EU institutions in the field of access and dissemination of information adequate?

In short, to no great extent would be our view. By way of a single, but in our view, significant example, when the Irish Government and DG IV engaged in negotiations over the future of Ireland’s corporate tax regime in the early months of 1998, it was clear that the details of these exchanges would not be made public. However, the substantial delay over the publication of the actual terms of the agreement reached on 22 July (in the form of a Commission letter to the Irish authorities) was entirely unacceptable. The text of this agreement was not finally made available to the public until 18 December, when it was published in the Official Journal, creating in the meantime a thoroughly unacceptable legal vacuum in which the business community was expected to operate. We would hope that such an absence of transparency would be impossible under the new Amsterdam regime. We believe that important legal decisions should be posted on the internet as an interim measure prior to formal publication in the OJ.

To take another example, the veil of secrecy surrounding the work of the 1997 Member State agreement for a 'Code of Conduct' Group on Business Taxation' is considered by industry to be completely exaggerated and lays no grounds for optimism that greater transparency can be expected in this field in the future.


Crucially in our view, the whole issue of scientific and other studies carried out for the Commission is one which will require a much greater degree of transparency. As such studies commissioned by the European executive frequently form the basis of future legislative action from that body, it is not acceptable that legitimate stakeholders be excluded from this policy initiating stage.

We are particularly concerned, in the first instance, that the scientific data which supports the studies carried out for the Commission is frequently not made available for independent evaluation. Secondly, we would like greater clarification of the process surrounding restricted calls for tender in respect of these studies and/or the organisation of events contributing to the initial framework from which future regulation will emerge. The impression exists within the business community that there is a tendency for industry and industry representatives groups to be closed out of these processes, in favour of other interested stakeholders. Thirdly, we consider that there is an urgent need for external quality control of all studies carried out for the Commission, using some form of peer review. While our final point is not of immediate relevance to the question of transparency, it would seem to us that in many instances, subjects on which the Commission calls for scientific studies to be carried out have already been widely researched at Member State level. Indeed, there is frequently a sufficient wealth of existing data, about which neither industry nor NGOs questions its accuracy, credibility or impartiality.

Furthermore, it is our view that the results and data from all studies carried out by the Commission should be made available, subject to the provisions addressed above. This should be done irrespective of the final intended use. The objectives should be both to inform the stakeholders of the issues under study by the institutions and also as a means of making this information available to other experts engaged in study in the same field. Hence, the use of funding could be optimised at a European level.

IBEC and its member companies would be happy to engage in dialogue with the Commission services to explore these issues further, and therefore awaits with interest the next stage of this consultation process. We will at this point willingly contribute further (and if necessary more specific) information to assist the process of reflection leading to the prompt adoption of legislation bringing the Amsterdam provisions on transparency and the right of access to Community documents into force.

1 June 1999

(1) IBEC is the representative body of Irish industry and the main spokesman of the employer pillar within the social dialogue in Ireland.


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