By Martin Banks - 27th July 2010
This is a loophole
Ante Wessels
The European ombudsman Nikiforos Diamandouros has rejected a complaint against the council of ministers about access to documents.
He said there was "no maladministration" by the council, which represents member states, when it denied access to anti-counterfeiting trade agreement documents.
The complaint was made by the Foundation for a Free Information Infrastructure (FFII), a global association of lobby groups which campaign for access to information.
The anti-counterfeiting trade agreement (ACTA) is a proposed agreement for establishing international standards on intellectual property rights enforcement
It would establish a new international legal framework that countries can join on a voluntary basis and would create its own governing body outside existing international institutions.
In his ruling, the Strasbourg-based ombudsman said he "agrees that the conclusion of the ACTA may indeed make it necessary for the EU to propose and enact legislation".
"In that case, the ACTA would constitute the sole or the major consideration underpinning that legislation, and citizens would have a clear interest in being informed about the ACTA," he said.
However, he added, "While citizens have a clear interest in being informed about ACTA, they do not get access to ACTA documents."
The Greek official said that, although the ACTA "could have far-reaching legislative consequences for the EU, this does not mean that the procedure for concluding the ACTA is the same as a legislative procedure".
Responding to the ruling, FFII analyst Ante Wessels expressed disappointment, saying, "This is a loophole. It is possible to force legislation upon democracies while the public can not scrutinise all documents.
"The EU legislation on access to documents needs to be repaired. In the meantime, parliaments should not accept the usage of this loophole.
"The Vienna convention on the law of treaties stipulates that the history of a treaty plays a role in the interpretation of that treaty.
"Without full disclosure, parliaments will have to decide on a proposal with unknown aspects, a dark horse."
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