Towards a pan-EU Freedom of Information Act? Harmonizing Access to Information in the EU through the internal market competence

Abstract

This paper examines whether – and on what basis – the EU may harmonise the right of access to information across the Union. It does by examining the available legal basis established by relevant international obligations, such as those stemming from the Council of Europe, and EU primary law. Its demonstrates that neither the Council of Europe – through the European Convention of Human Rights and the more recent Trømso Convention – nor the EU – through Article 41 of the EU Charter of Fundamental Rights – do require the EU to enact minimum standards of access to information. That Charter’s provision combined with Articles 10 and 11 TEU do require instead only the EU institutions – not the EU Member States – to ensure public access to documents, including legislative texts and meeting minutes. Regulation 1049/2001 was adopted (originally Art. 255 TEC) on such a legal basis and should be revised accordingly. The paper demonstrates that the most promising legal basis enabling the EU to proceed towards the harmonisation of access to information within the EU is offered by Article 114 TFEU. It argues hat the harmonisation of the conditions governing access to information across Member States would facilitate cross-border activities and trade, thus enhancing the internal market. Moreover, this would ensure equal access to information for all EU citizens and residents, irrespective of their location within the EU. Therefore, the question is not whether but how the EU may – under Article 114 TFEU – act to harmonise access to information. If the EU enjoys wide legislative discretion under Article 114(1) TFEU, this is not absolute but is subject to limits derived from fundamental rights and principles such as proportionality, equality, and subsidiarity. Hence, the need to design the type of harmonisation capable of preserving existing national FOIAs while enhancing the weakest ones. The only type of harmonisation fit for purpose would therefore be minimal, as opposed to maximal, by merely defining the minimum conditions required on each Member State’s national legislation governing the access to information.

Keywords: FOIA, Open government, Transparency, Participation, Civic empowerment, Legitimacy, Accountability, Civil society, European Union, Good governance

JEL Classification: K19, K33