Year:    2009

Author:    Boysen, Sigrid

Die Verwaltung, Vol. 42 (2009), Iss. 2 : pp. 215–246

Abstract

Openness and transparency have been high on the European Union's political agenda during the last decade. In light of the continuing debate over the EU's democracy deficit, and the never-ending crisis in its social acceptance, the principle of openness in Art. 1 TEU promises to improve the effectiveness and legitimacy of the supranational decision-making process. Of all the initiatives taken in this context, the right of access to documents plays a dominant role. The key legal text governing public access to EU documents is EC Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents. Despite the Regulation's explicit reference to the constitutionalising power of the principle of transparency and the right to information, all expectations that the Regulation might contribute to a change towards greater openness and transparency have been dashed by the jurisprudence of the Community Courts. The Court of First Instance in particular has adopted an eminently restrictive approach, especially regarding documents originating from the Member States. The question under what conditions Member States are able to deny access to documents originating from them goes to the core of the EU's decision-making process and raises serious issues of legitimacy and accountability. The article argues for an interpretation of EC Regulation 1049/2001 that mitigates the effects of multi-level decision-making and diffuse responsibility, and reconciles the transfer of competences with democratic control.