Impact assessments for Sustainable Corporate Governance Directive

Vicky Cann made this Informationsfreiheit request to Justiz und Verbraucher

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Die Anfrage war erfolgreich.

Dear Justice and Consumers,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting all impact assessments submitted to the Regulatory Scrutiny Board for the Sustainable Corporate Governance Directive. I would like to request all draft impact assessments for the Sustainable Corporate Governance Directive which have been discussed with DG Grow, the Secretariat General, and/ or other parts of the Commission.

Yours faithfully,

Vicky Cann
CEO
Rue d'Edimbourg 26
1050 Brx

JUST A3, Justiz und Verbraucher

1 Attachment

Dear Ms Cann,

Please find attached a signed letter from Ms Ana GALLEGO, Director-General, Directorate-General Justice and Consumers, dated 20 January 2022.

We would be grateful if you could please confirm receipt of the present e-mail.

Kind regards,
JUST A3 Secretariat

Dear Justice and Consumers,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Impact assessments for Sustainable Corporate Governance Directive' which I made on 10 December 2021. I received DG Just's reply dated 21 January 2021.

I would like to make the following points:

1. In relying on Article 4(3) Regulation (EC) No 1049/2001, DG Just did not demonstrate that disclosure of the documents would cause a reasonable foreseeable, non-hypothetical harm. Nor was the public interest properly considered.

DG Just stated that "access to different versions of draft impact assessment reports and subsequent amendments thereto could spread confusion among the addressees of those documents" but that is not enough to cause a reasonable foreseeable, non-hypothetical harm.

Citizens are perfectly capable of following a decision making process. Article 4(3) is subject to an overriding public interest. DG Just stated that there is no such interest in this case. I would like to expressly state that I do not agree with that assessment, as there does in fact exist an overriding public interest in the release of these documents, one that the Commission has failed to recognise.

Given the importance of public participation in EU decision-making and the treaty obligation imposed upon the EU to take decisions as closely as possible to the citizens, the public interest test in being granted access to these documents has not been correctly considered.

Article 15 of the Treaty on the Functioning of the European Union states:
1. In order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible.

As stated in Case C‑280/11 P, the Court lays out the “advantage” of increased openness is that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.

“Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights (Sweden and Turco v Council, paragraph 46).”1

In order for the public to fully participate in EU decision-making, citizens must be able to follow decisions as they are happening.

“If citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information.”2

Indeed, opening up these documents at a time when decision-making process is still ongoing, enables citizens to understand the options envisaged and the choices made by that institution and, thus, to be aware of the considerations underlying the actions of the EU. In addition, that disclosure puts those citizens in a position effectively to make their views known regarding those choices before those choices have been definitively adopted.3

‘it is rather a lack of public information and debate which is likely to give rise to doubts as to whether that institution has fulfilled its tasks in a fully independent manner and exclusively in the general interest’4

2. DG Just says that Article 4(3) applies unless there is an overriding public interest in disclosure. I think there are a number of additional reasons why this file is of great public interest:

We know that there has been great stakeholder and media interest in the Sustainable Corporate Governance Directive file, including now widespread knowledge that the Regulatory Scrutiny Board has twice rejected the Commission’s impact assessments. This is quite unusual and it is important that the relevant paperwork is placed in the public domain so that citizens can scrutinise the processes being followed.

Furthermore, we know that both DG Just and DG Grow, alongside the Regulatory Scrutiny Board have been lobbied on this file, perhaps quite heavily, so it is important that documents relating to key points of the Commission’s process are transparent so citizens can analyse the impact lobbyists are having. 
The Commission’s website states “The Better Regulation agenda ensures evidence-based and transparent EU law-making based on the views of those that may be affected.” By refusing to release the impact assessments, the Commission is ignoring the important principle of transparency in law-making.
 
3. Regulation No 1049/2001 is designed – as is stated in recital 4 and reflected in Article 1 – to confer on the public as wide a right of access as possible to documents of the institutions. Under Recital 6, an even wider access should be granted to institutions acting in a legislative capacity. The Commission has failed to consider that that the right of access to information is particularly strong for public watchdogs such as journalists, civil society and human rights organisations.

I would like to remind the Commission that as I work within civil society, I have a specific “watchdog” function.

Therefore, when making this request as part of the exercise of my role as a public watchdog, I was exercising both my right of access to documents (Article 15 of the TFEU and Article 42 of the Charter of Fundamental Rights of the European Union) and also my right to freedom of expression and information, as protected by in Article 11 of the Charter of Fundamental Rights of the EU, which is analogous to Article 10 of the European Convention on Human Rights.

The European Court of Human Rights has established, through a series of judgments, that the right of access to information is particularly strong for public watchdogs such as journalists, civil society and human rights organisations.

Denying me this information is impeding my watchdog function, something that the European Court of Human Rights has established is an interference with freedom of expression and information.

“As the applicant was obviously involved in the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to the public debate, there has been an interference with its right to freedom of expression”5

The Strasbourg Court has stated that public bodies cannot “allow arbitrary restrictions which may become a form of indirect censorship”.6 In denying access to this information, there is a risk to create barriers to the exercise of freedom of expression and information. The European Court of Human Rights has made clear that there is a positive obligation to eliminate such obstacles:

“The State’s obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities”. 7

Given that transparency is needed for civil society to carry out our watchdog activities, to contribute to public debate and decision making, there is a strong and specific purpose to transparency of how decisions are taken in EU institutions.

I look forward to hearing from you.

Yours faithfully,

Vicky Cann

1. Case C‑280/11 P Council v Access Info Europe, para 33
2. Case T‑233/09 Access Info Europe v Council, para 69
3. Case C-57/16P ClientEarth v Commission
4. Case C-57/16P ClientEarth v Commission para 104
5. Youth Initiative for Human Rights v. Serbia, App. No. 48135/06, ECHR , 25 June 2013, para 24
6. Társaság a Szabadságjogokért v. Hungary, App. No. 37374/05, ECHR, 14 April 2009, para 27
7. Társaság a Szabadságjogokért v. Hungary, App. No. 37374/05, ECHR, 14 April 2009, para 36

SG ACCES DOCUMENTS, Justiz und Verbraucher

Dear Madam,

Thank you for your email dated 02/02/2022 by which you request, pursuant
to Regulation No 1049/2001 regarding public access to European Parliament,
Council and Commission documents, a review of the position taken by DG
JUST in reply to your initial application GESTDEM 2021/8092.

We hereby acknowledge receipt of your confirmatory application for access
to documents which was registered on 03/02/2022 (Ares(2022)796585).

Your application will be handled within 15 working days (24/02/2022). In
case this time limit needs to be extended, you will be informed in due
course.

Please be informed that the answer to your confirmatory application is a
formal Commission decision that will be notified to you by express
delivery. Thank you for providing your contact phone number, so that the
external delivery service can contact you in case of absence.

Please note that the Commission will not use your phone number for any
other purpose than for informing the delivery service, and that it will
delete it immediately thereafter.

Yours faithfully,

Access to documents team (cr)
SG.C.1
Transparency

Zitate anzeigen

Dear SG ACCES DOCUMENTS,

Thank you. I would be very happy to have the response to the confirmatory application posted here.

Thanks in advance.

Yours sincerely,

Vicky Cann

Sg-Acc-Doc@ec.europa.eu, Justiz und Verbraucher

4 Attachments

From: SG GREFFE CERTIFICATION <[email address]>
Sent: Friday, April 22, 2022 4:27 PM
To: [email address]
Cc: BEVIERE Chantal (SG) <[email address]>
Subject: C(2022) 2731 final addressed to CANN Vicky

 

 

Dear Ms CANN Vicky

 

Please find attached the electronic version of Commission Decision C(2022)
2731 as adopted by the European Commission on 21.4.2022.

 

Given the exceptional circumstances due to the COVID-19 pandemic, the
formal notification of the decision under Article 297 TFEU is being made
only in electronic form.

 

Please confirm receipt of the attached document by return e-mail.

 

Kind regards,

 

 

MARTIN GALAN MARIA SERENA

Secrétariat général de la Commission – Greffe B-2
Procédures écrites, habilitations, délégations et transmissions externes

BERL 5/155
'   +32-2-299.59.48
7    +32-2-296.72.43

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