The right of access to information is a prerequisite to participate fully in public life. It allows citizens and civil society to inform themselves, holds public authorities accountable, and enables journalists to do their job.
Yet if any EU resident has a fundamental right of access to documents of the EU institutions, the same right does not exist vis-à-vis the documents of the EU Member States. This depends on the individual Member State’s freedom of information act, which vary widely across the Union. Moreover, the EU, after acting as a role model for the average Member States in terms of ensuring the access to information, has proven unable to review its Regulation 1049/2001, which – as exemplified by the Pfizer case involving the SMS-texts exchanged between EU Commission President von der Leyen and Pfizer CEO, Albert Bourla – appears manifestly unfit for the digital age. Moreover, the operation of the Regulation has also proven problematic with systematic delays in the EU institutions’ responses as recently showed by the treatment afforded by the Commission of the requests for access to documents on how the ‘very tight control’ by Member States over the RRF disbursements.
It is against this backdrop that one of the central questions to be debated today but that has remained neglected over time is whether and on what basis the EU could require all member states to ensure the right to access to information held by public authorities.
I made a first attempt at addressing this question in a paper I wrote on the occasion of the workshop on ‘Access to Information in the Digital Age’ hosted by Neus Vidal and Viktoria Kraetzig with the support of the Mercator Stiftung on April 23, 2024.
It shows that it is possible for the EU to require its Member States to adopt – through minimal harmonisation based on the internal market legal basis (Article 114 TFEU) – laws guaranteeing the access to information all across the Union.
This proposal could become part of an EU Transparency Act including also the revision of Regulation 1049/2001 and that of the EU Transparency Register through the proposal of an EU Lobbying Act.
Prof Alberto Alemanno, Founder of The Good Lobby.