Explanatory Memorandum to COM(2008)229 - Public access to European Parliament, Council and Commission documents - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)229 - Public access to European Parliament, Council and Commission documents. |
|---|---|
| source | COM(2008)229  |
| date | 30-04-2008 |
1. Background
1.1.Implementation of the public right of access to documents
Article 255 of the Treaty establishing the European Community, as amended by the Treaty of Amsterdam, grants citizens of the European Union and natural or legal persons residing or having their registered office in a Member State, a right of access to European Parliament, Council and Commission documents. The principles and limits governing this right of access have been determined by Regulation (EC) No 1049/2001 1 regarding public access to European Parliament, Council and Commission documents, which became applicable on 3 December 2001.
In a report on the implementation of the Regulation, published on 30 January 2004, the Commission concluded that it had worked remarkably well. Therefore, it considered that there was no need to amend the Regulation in the short term, since it would in any case need to be reviewed after the entry into force of the Treaty establishing a Constitution for Europe.
1.2.Reasons for reviewing the existing Regulation
On 9 November 2005, the Commission decided to launch the “European Transparency Initiative” 2 , a drive towards more transparency which included a review of the Regulation.
The European Parliament for its part, in a Resolution adopted on 4 April 2006 3 , asked the Commission to come forward with proposals for amending the Regulation.
In the meantime, on 6 September 2006, the European Parliament and the Council adopted a new Regulation applying the Århus Convention 4 to the institutions and bodies of the European Community, which interacts with Regulation (EC) No 1049/2001 as regards access to documents containing environmental information.
Regulation (EC) No 1049/2001 has now been applied for six years, during which the institutions have gained more experience in implementing it. Furthermore, a body of case law has developed and a number of complaints have been settled by the European Ombudsman. The institutions are, therefore, in a position to reassess the working of the Regulation and to amend it accordingly.
As a first step in the review process, the Commission published on 18 April 2007 a Green Paper, which formed the basis for a public consultation on the issue 5 . The outcome of this consultation was summarised in a report published in January 2008.
2. Issues considered in the Review Process
2.1.Resolution of the European Parliament of 4 April 2006
In its above-mentioned Resolution of 4 April 2006, Parliament formulated five recommendations, which the Commission has duly considered when drafting the present proposal.
Contents
- 2.1.1.Scope of the legal basis and purpose of the Regulation
- 2.1.2.Full legislative transparency
- 2.1.3.Rules on confidentiality
- 2.1.4.Access to Member State documents
- 2.1.5.Registers and rules for archiving
- 2.2.1.Active dissemination
- 2.2.2.Aligning Regulation (EC) No 1049/2001 with the Århus Convention
- 2.2.3.Protection of personal data
- 2.2.4.Protection of commercial interests
- 2.2.5.Handling of excessive requests
- 2.2.7.Time frames for the application of exceptions
- The Commission proposes to adjust Article 2
- 2.2.8.Scope of the Regulation
- 2.2.9.Access to documents originating from Member States
- 2.3.1.Access to personal data
- 2.3.2.Access to documents originating from a Member State
- 2.3.3.Applicability of exceptions before and after a specific event
According to Parliament, the preamble of the Regulation should clarify that Article 255 EC Treaty is the legal basis for implementing the principles of openness and proximity and the pivotal legal basis for transparency and confidentiality.
Since Article 255 concerns public access to documents, the Commission proposes to clarify the purpose of the Regulation accordingly in Article 1.
All preparatory documents to legal acts should be directly accessible to the public.
This recommendation is fully accepted and addressed in Article 12.
Parliament recommended laying down rules for classification of documents in the Regulation and ensuring parliamentary control over the application of such rules and access to such documents.
Classification of documents does not per se exclude them from the public right of access. Therefore, the Commission considers that specific rules on classification and on the handling of classified material should not be laid down in a Regulation on public access.
Parliament wanted to limit and to better define the ability of Member States to oppose disclosure of their documents.
The new Article 5 i, which also takes into account a judgment of the Court of Justice on this issue, stipulates that Member States must give reasons when they request an institution not to disclose documents originating from them.
Parliament recommends setting up a single access point in regard to preparatory legislation, a common interface to the institutions’ registers and common rules on archiving documents.
The Commission fully agrees with this recommendation. However, it can be implemented without amending the Regulation.
2.2.Outcome of the Public Consultation
The response to the questions submitted for public consultation may be summarised as follows 6 . In the present proposal, the Commission has taken into account the views of the majority of the respondents for each of the issues raised in the Green Paper.
Registers and websites should be easier to access and more harmonised. The scope of the Commission's registers should be extended. Citizens would welcome a more pro-active disclosure policy.
Active transparency on legislation is being addressed in Article 12. Article 11 and the amended Article 12 provide an appropriate legal basis for registers and websites that are more comprehensive and easier to access.
The proposal to align the Regulation with the provisions on access to environmental information (Regulation (EC) No 1367/2006 implementing the Århus Convention) has been widely supported. Reservations were voiced mainly by environmental NGOs and by the chemical and biotechnological sectors.
The alignment is reflected in the amended Articles 4 i and i and 5 i.
The current practice, blanking out names and other personal data in documents to be disclosed, has been perceived as too restrictive, in particular where persons act in a public capacity. The Court of First Instance has ruled on this issue (see point 2.3.1 below).
The relevant provision has been redrafted accordingly in the new Article 4(5).
Public authorities and the corporate sector feel is that the current rules strike the right balance. However, journalists, NGOs and a majority of individual citizens claim that more weight should be given to the interest in disclosure.
Therefore, the Commission does not propose to amend this provision.
A slight majority of Member States and the private sector support specific measures derogating from the normal rules when dealing with excessive requests. Member States insist that such measures should be based on objective criteria. The Ombudsman, a significant minority of Member States and NGOs are opposed to specific rules on excessive requests.
The Commission does not propose a provision for rejecting requests that may be qualified as excessive. Instead, it is proposed to extend the ability to request clarifications under Article 6 i to cases where the requested documents cannot be easily identified.
2.2.6.The concept of 'document'
As regards the general feeling is that the current wide definition should be maintained. A clarification with regard to databases as suggested in the Green Paper would be welcomed.
A more precise definition of 'document' is given in the amended Article 3(a), which also covers information contained in electronic databases.
The suggestion to define events before which documents would not be accessible has not been given much support. On the other hand, systematic disclosure of documents after specific events and well before the 30-year limit for opening the archives has been welcomed. Experience has shown, however, that access must systematically be refused in regard to documents pertaining to judicial or quasi-judicial proceedings before a public hearing has taken place or a final decision has been adopted. This has also been confirmed by the case law (see point 2.3.3).
Many respondents to the Green Paper called for an extension of the scope of the Regulation to all EU institutions, bodies and agencies.
Such an extension is not possible under the current Treaty, but will be achieved when the Treaty on the Functioning of the Union enters into force.
This issue was also raised by some respondents, as well as in Parliament's Resolution (see point 2.1.4 above). It has, in the meantime, been clarified by a judgment of the Court of Justice (see point 2.3.2).
2.3.Recent Case Law
In a series of judgments, the Court of First Instance and the Court of Justice have ruled on some major issues regarding the application of the Regulation, which are being addressed in this proposal.
In its judgment of 8 November 2007 in the Bavarian Lager case 7 , the Court of First Instance interpreted the exception regarding the protection of personal data and considered the relationship between Regulation (EC) No 1049/2001 and the Regulation on data protection 8 .
The relation between the Regulations on public access and on the protection of personal data is clarified in the new Article 4(5).
On 18 December 2007, the Court of Justice annulled the judgment of the Court of First Instance of 30 November 2004 in a case concerning the right of Member States to oppose disclosure by the institutions of documents originating from them 9 .
The existing provision in Article 4(5) is replaced by the new Article 5 i.
In its judgment of 13 April 2005 in a case concerning access to a cartel file 10 , the Court of First Instance ruled that, in principle, an institution receiving an application for access to documents must carry out a concrete, individual assessment of the content of the documents referred to in the request. However, such an individual assessment might not be required if, due to the particular circumstances of the case, the documents requested are manifestly covered by an exception to the right of access. In a recent judgment, the Court considered that written submission to the Courts were manifestly covered by the exception aimed at protecting court proceedings before an oral hearing has taken place 11 .
New provisions have been added under Article 2 (5) and (6).
3. Proposed Amendments to Regulation (EC) No 1049/2001
3.1.Purpose and Beneficiaries of the Regulation - Articles 1 and 2
The wording in Article 1(a) is slightly modified to clarify that the purpose of the Regulation is to grant public access to documents. This is consistent with the legal base and has been confirmed by the case law of the Court of First Instance 12 .
The right of access will be granted to any natural or legal person, regardless of nationality or State of residence. This makes the Regulation consistent with the provisions of Regulation (EC) No 1367/2006 on access to information in environmental matters 13 . Article 2 i is amended accordingly and Article 2 i is repealed.
3.2.Scope and Definitions – Articles 2 and 3
It is specified in Article 2 i that the Regulation applies to all documents held by an institution concerning a matter relating to the policies, activities and decisions falling within its sphere of responsibility. In the current text this aspect is mentioned under the definition of 'document' in Article 3(a). However, this is related to the scope of the Regulation rather than to the definition of the concept of 'document'.
A new paragraph 5 is added to Article 2 clarifying that documents submitted to Courts by other parties than the institutions do not fall within the scope of the Regulation. It is worth noting that the Court of Justice is excluded from the right of public access under Article 255 of the EC Treaty and that the Lisbon Treaty extends this right to the Court of Justice but to documents relating to its administrative activities.
Access to documents related to the exercise of the investigative powers of an institution should be excluded until the relevant decision can no longer be challenged by an action for annulment or the investigation is closed. During this investigation phase, only the specific rules in this field will apply. The Regulations governing competition and trade defence (anti-dumping, anti-subsidy and safeguard) proceedings and proceedings under the Trade Barriers Regulations contain provisions regarding privileged rights of access for interested parties and provisions on publicity 14 . These rules would be undermined if the public were to be granted wider access under Regulation (EC) No 1049/2001. Information obtained from natural or legal persons in the course of such investigations should continue to be protected after the relevant decision has become definitive.
The wide definition of the concept of 'document' in Article 3(a) is maintained. However, a 'document' only exists if it has been transmitted to its recipients or circulated within the institution or has been otherwise registered. On the other hand, the definition of 'document' should include data contained in electronic systems insofar as these can be extracted in readable form.
3.3.Exceptions – Article 4
The exception aimed at protecting the environment, laid down in Article 6 i of Regulation 1367/2006, is added under Article 4 i of Regulation (EC) No 1049/2001 in order to align this Regulation with the provisions stemming from the Aarhus Convention. For reasons of clarity the indents are replaced with letters.
Also with a view to aligning the Regulation with the Aarhus Convention, the exception aimed at protecting commercial interests in Article 4 i will not apply to information on emissions which is relevant for the protection of the environment. As a consequence, the protection of intellectual property rights is mentioned as a separate exception.
The concept of 'court proceedings' is clarified and includes arbitration and dispute settlement proceedings.
A new exception is added, aimed at protecting procedures leading to the selection of staff or of contracting parties. Transparency in these areas is regulated by the Staff Regulations and by the Financial Regulation. The proper functioning of selection boards and evaluation committees should be safeguarded.
Article 4(3) is reworded for reasons of clarity but is not altered on substance.
Articles 4 i and 4(5) are moved to Article 5, since they contain procedural rules rather than exceptions.
Article 4 i (b) regarding access to personal data is moved to a new Article 4(5) and reformulated in order to clarify the relationship between Regulations (EC) No 1049/2001 and 45/2001 (protection of personal data).
3.4.Consultations with Third Parties – Article 5
The new Article 5 i lays down the procedure to be followed where access is requested to documents originating from a Member State. The Member State must be consulted unless it is clear that the documents shall or shall not be disclosed; if it gives reasons for not disclosing the requested documents, based on Regulation (EC) No 1049/2001 or on relevant similar and specific rules in its national legislation, the institution will deny access to these documents. This new provision takes into account the judgment of the Court of Justice in the appeal case C-64/05 P (see section 1.5.2 above).
3.5.Procedural Rules – Articles 6, 8 and 10
Article 6 i is amended in order to take into account cases where the requested documents cannot be easily identified.
In Article 8, the time limit for handling a confirmatory application is extended to 30 working days, with a possibility for a further extension by 15 working days. Experience has shown that it is almost impossible to handle a confirmatory application within 15 working days. The handling of a confirmatory application requires more time since such an application leads to a formal decision of the institution, for which strict procedural rules apply.
A new paragraph is added to Article 10, clarifying that, where specific modalities for access are laid down in EU or national law, these must be respected. This is particularly the case where access is subject to payment of a fee, which is a source of income for the body that produced the documents.
3.6.Active Dissemination – Article 12
This provision is redrafted with the purpose of granting direct access to documents, which are part of procedures leading to the adoption of EU legislative acts or non-legislative acts of general application. Such documents should be made accessible by the institutions from the outset, unless an exception to the public right of access clearly applies.
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