Statewatch

EU secrecy proposals, Document no 1

TEXT

[Statewatch translation]

European Commission

Secretariat-General


Directorate C

Actions in the interest of the citizen


Brussels, 22 January 1999

SG.C.2/VI.CD/D(98)12


DRAFT COMMUNICATION TO THE COMMISSION

FROM THE PRESIDENT ON PUBLIC ACCESS TO COMMISSION DOCUMENTS



I. Introduction

The Treaty of Amsterdam enshrined the concept of transparency:

* By incorporating it as a general principle of the Union under the first article of the TEU (2nd paragraph "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen");

* By granting citizens a real right of access to documents of the European Parliament, Council and the Commission (incorporation of a new article 255 in the TEC).

This new article provides that:

"1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents."

Pursuant to this provision, the Commission is required to draw up a legislative proposal on the general principles and limits governing the exercise of the right of access to documents of the three institutions referred to. In this respect, it is important to stress the Treaty's concern to render the rules governing access to documents more comprehensible by establishing a single harmonised system rather than three separate systems.

The right granted to citizens concerns only the aspect of transparency represented by access to the documents of the institutions. The concept of transparency in fact goes far beyond the question of access to documents. This concept lies at the root of a whole series of initiatives aiming to bring the institutions closer to the citizens, access to documents being but one of these measures. A separate Communication by the President and Mr Oreja lists the various measures already adopted by the Commission in this regard and suggests a series of possible future measures.

The principal aim of this communication is to allow the Commission to set out its position on the proposed framework and guidelines with a view to the preparation of its formal draft legislative proposal. To this end, it begins by setting out the situation concerning the policy of access to Commission documents in force since February 1994.


II. Policy of access to Commission documents in force since February 1994

One of the key measures adopted by the Commission with regard to its policy of transparency concerns public access to its documents.

In accordance with the declaration made at Maastricht and at the request of the European Council of Copenhagen to establish basic principles and minimum conditions to improve access to unpublished documents, the Commission and the Council adopted a code of conduct common to both institutions in December 1993. The code establishes the principle that the public should have the greatest possible access to the institutions' internal documents subject to exceptions aimed at protecting public and private interests and at ensuring the good functioning of the institutions. It also establishes the conditions and basic principles governing the treatment of requests, reasonable response times and possibilities of appeal in case of refusal. The code of conduct was adopted on 20 December 1993 [1] by the Council and on 8 February 1994 [2] by the Commission.

It should also be noted that the European Parliament also adopted a decision on public access to its documents on 10 July 1997 introducing an almost identical system to that of the Commission and Council [3].

Scope and basic approach of the policy

The policy on access covers all internal Commission documents, i.e. documents which have not been finalised and/or which are not intended for publication (such as SEC documents, studies, information notes, etc.). It concerns in particular preparatory documents for Commission proposals, data and the analysis of data which the Commission considers pertinent for the drafting of its proposals and decisions, and other explanatory material relating to the Commission's policies, actions and decisions. This policy on access only covers documents produced by the Commission. Where a request is made for a document originating from another institution, Member State, individual etc., the person concerned is referred to the author of the document.

As regards finalised documents intended for publication and distribution against payment, such as final COM documents, they continue to be available from the Office for Official Publications of the European Communities or its agencies in the Member States or third countries.

This policy complements the Commission's information and communication policy. Documents supplied to the general public on the Commission's initiative, such as folders, free brochures, etc. continue to be dealt with as before. The same is true of requests for information.

All physical or legal persons, whatever their status, may request access to a Commission document without having to justify a particular interest. Such a person need not be a citizen of the European Union, nor have residence or, in the case of legal persons, have its seat in a Member State. Such a request must be made in writing. It should be noted that no distinction is made between the different categories of applicants and that no category (journalists, MEPs acting in a private capacity, interest groups) shall enjoy special treatment with regard to the policy governing access to documents. The provisions of the code governing the treatment of requests, response times and possibilities of appeal shall be strictly applied.

The underlying principle governing the consideration of each request is that the greatest possible access should be granted to documents held by the Commission. Nevertheless, certain exceptions to the general principle governing access have been provided for in the code of conduct in order to assure:

- the protection of the public interest,

- the protection of individuals and the private sphere,

- the protection of trade and industrial secrets,

- the protection of the Communities' financial interests, - the protection of confidentiality requested by the physical or legal person who supplied the information or required by the legislation of the Member State which supplied the information,

- the protection of the interests of the institution with regard to the confidentiality of its deliberations.

However, no exception is automatically applicable, each request being given individual and thorough consideration on a case by case basis. Thus, the intention to refuse access to a document must be duly justified and can only be based on one of the exceptions expressly and exclusively provided for.

The requirement for each request to be considered on a case by case basis has been confirmed on several occasions by the Court of First Instance, even where the institution intends to invoke one of the "obligatory" exceptions (i.e. one of the first five exceptions). As far as the last "optional" exception is concerned, the Court of First Instance has even strengthened it. Thus, the Commission and the Council are required to weigh up the interest of the citizen in obtaining access to the documents on the one hand and the institution's interest in preserving the secrecy of its deliberations. [4]

Consideration of requests

The policy governing public access to Commission documents is applied in a decentralised manner: each Directorate General and each unit is responsible for dealing with requests for documents falling within its remit. The reply, in the language used by the applicant, must be sent within a month of registering the request. Access to documents shall be granted either by sending a copy to the interested party, the cost of which must be borne by the latter though they must not exceed a reasonable amount, or by allowing the consultation of the documents in situ.

Evaluation

The implementation of this policy was the subject of a report after two years experience which gave it a positive overall assessment. The Commission therefore decided to continue developing the current policy on the basis of the code of conduct. It has introduced only one modification to the system by deciding on 19 September 1996 to render the charging of the cost of reproduction for the documents requested optional [5]. For its part, the Council revised Decision 93/731/EC concerning public access to its documents on 6 December 1996 [6], allowing on an exceptional cases the extension of the 1 month's reply deadline and providing for the submission of a report on the implementation of the decision every two years.

The statistical analysis carried out by the Commission for 1998 shows that out of ... requests, less than ... % were the subject of a refusal justified by one of the exhibitions provided for in the code of conduct. Therefore, more than ... % of requests received a positive response. These came mainly from the sector (To be confirmed: academic and professionals (loyalist lobbies industrialists)). A thematic breakdown of requests reveals an important diversification off the subject of requests. Nevertheless, certain subjects are of greater interest to the applicants: [to be confirmed: competition, the environment, fisheries, subjects relating to the Europe of citizens].

As regards repeated requests following a refusal to grant access to a document, it is interesting to note that the number of repeat requests, which in 1997 had increased considerably following the judgment of the Court of First instance, annulling the decision of the Commission in the WWF case, decreased significantly in 1998 (only 25 repeat requests were lodged while 44 repeat requests had been submitted in 1997).

The number of complaints to the ombudsman in 1998 was also quite low (some 10 complaints since 1994). As regards the decisions to date, in most cases it was decided to close consideration of the complaint in view of an absence of maladministration on the part of the Commission. In two cases, following the intervention of the Ombudsman, an amicable solution was found between the Commission and the applicants (the sending of part of a report in one case, and the sending of Member States' contributions by the Commission following requests for express authorisation from the national authorities in the second case).

As regards the cases before the Court of First instance, there are now six, two new cases having been lodged in 1998. Three judgments have been delivered to date, two annulling the Commission's decision to refuse access for reasons of inadequate grounds (cases T - 105/95 and T - 124 /96), the third rejecting the appeal and thus accepting the Commission's argument (Case T-83/96). The other judgements are still pending.

The conclusion which may be drawn from this analysis is that despite the importance, both in political terms and as a matter of principle, of the granting of access to the institutions' documents, this initiative has had a fairly limited impact among citizens.


III Guidelines and framework proposed for the new post-Amsterdam legislation

Following a meeting of the Secretary Generals in December 1997, an informal working party comprising officials from all three institutions was established under the leadership of the Commission Secretariat-General with the aim of preparing the ground and producing guidelines with a view to the preparation of a legislative proposal by the Commission.

The guidelines and the framework presented below take account of the options envisaged by the working party, of the discussions between the Secretaries General and of the internal deliberations within and between the competent departments within the Commission.

It is proposed that the future legislative proposal be based on the following elements:

1. Legal nature and legal basis of the new legislation

The new legislation could take the form of a regulation based on Article 255 of the EC Treaty.

2. Recitals

The recitals could refer to the following points:

* The situation of access to documents within the broader context of transparency (European Council conclusions, backed up by Article A of the TEU), and a reminder of the Union's aim to be closer to the citizens and to be more accountable to them.

* A reminder of the provisions already adopted by the Institutions with regard to access to documents, in addition to other measures in relation to transparency.

* A reminder to the effect that the granting of access to documents is intended to complement the policy on information and communication.

* An invitation to other Community institutions, agencies and bodies to adopt comparable rules.

* A reminder of the institutions' desire to grant the greatest possible access to their documents.

3. Scope

The formal right of access should be limited to documents of the European Parliament, the Council and the Commission, pursuant to the provisions of Article 255 of the EC Treaty. Improved access to documents of institutions acting in their capacity as legislators should be provided for by the regulation (as referred to in Article 207 of the EC Treaty with regard to the Council only).

It would nevertheless be advisable to define the documents covered by the new legislation and to answer the following questions:

* Are all documents held by the institutions covered or only those produced by the institutions?

Pursuant to the system currently in force, only the documents produced by the Commission and the Council are covered by the right of access. The code of conduct adopted by the two institutions provides that where the author of a document held by the institution is a physical or legal person, a Member State, another Community body or institution, or any other national or international body, the request must be addressed directly at the author of the document.

Article 255 of the EC Treaty grants a right of access to the documents of the European Parliament, the Council and the Commission.

While it may be clear that Article 255 refers to documents produced by the three institutions, it does not imply any legal obligation to grant access to documents produced by third parties but held by the institutions. The question is thus of a political nature.

It is a question of weighing up the openness created by the Text of Article 255 and the corresponding Declaration [7] on the one hand and the possible danger posed by such openness. Given that in most Member States, the right of access covers all documents held by administrations, it is proposed to extend the right of access provided for by Article 255 to all the documents held by the three institutions. However, attention should be drawn to the significant practical difficulties of dealing with requests for third party documents held by Commission services in view of a lack of a central register of documents entering the Commission. It would therefore be necessary to require applicants to supply precise information regarding the documents which they wish to obtain, to provide for a longer deadline to reply to such requests, and to limit access to third party documents dated after the entry into force of the new legislation.

* What kind of internal documents shall be covered by the future legislation?

Under the current system, all internal documents produced by the Commission are in principle accessible unless they are covered by one of the exceptions provided for explicitly by the code of conduct. This concerns all non-finalized documents and/or all documents not intended for publication, regardless of its format (paper/computer file). The minutes of meetings, internal opinions of services, etc. and even the minutes of Commission meetings are currently covered by the scope of the policy on access.

Most requests relate to SEC (or non-finalized COM) documents. Other documents are also requested regularly, such as the manual of operational procedures, the organigram (establishment plan), the guide to services and certain studies carried out by or on behalf of a DG. "Exclusively" internal notes (such as notes drawn up by a service in response to a consultation, or notes drawn up by an official for the attention of a superior) are rarely the subject of express requests though this sometimes need to be taken into account in examining a request for access to a file (e.g. with regard to a complaint or alleged infringement, state aid or a file relating to subsidies or an invitation to tender).

In order to avoid any potential future problems, and in order to facilitate the implementation of the right of access, it would be advisable to define what is meant an "institution's document" in the new legislation. It is proposed that as regards internal documents a distinction be drawn between:

* Documents pertaining to the organisation and administration of the institution's services (manual of procedures, establishment plan of services, etc.), some of which could be of interest to those outside the institution;

* Preparatory documents relating to the preparation of policy initiatives and decisions by the Commission, such as:

- documents drawn up in preparation for policy initiatives and decisions by the Commission (preliminary drafts, draft legislative proposals and draft decisions, interim reports, etc.),

- explanatory documents and other specific data (statistics, studies, information notes, etc) pertaining to policy initiatives and decisions by the Commission;

* Working documents drawn up as contributions to internal deliberations (documents of a purely internal nature: minutes of meetings, briefings, services' opinions, mission reports, "reflection notes", notes setting out the personal views of officials, etc.).

As a corollary to this, it is proposed to exclude working documents drawn up as contributions to internal deliberations (the third category of internal documents).


* How to assure the accessibility of documents drawn up in "comitology " committees?

The position adopted to date by the Commission has been that documents originating in such committees are not Commission documents, since these committees are established by the Council and are composed of representatives of the Member States. A case dealing with this issue is currently before the Court of First Instance (T-188/97, ROTHMANS vs. the Commission). A solution to the lack of transparency could possibly be found at an interinstitutional level in cooperation with the Council.

The principles which should govern the activities of such committees in relation to transparency should be as follows:

* Each committee shall adopt its own rules of procedure which should be the subject of an appropriate publication. Such rules shall incorporate the respect of the principle of transparency of the activities of the committees, subject to such limits as are justified to protect public or private interests and the protection of the confidentiality of its deliberations.

* Pursuant to these principles:

- The meetings of such committees are not public;

- The draft agenda drawn up by the chair of the committees (Commission) and the proposed measures submitted by the Commission are documents originating in the Commission and are subject to the general rules governing access to Commission documents;

- The opinion of the committee shall in principle (to be determined) be accessible; - The access to the minutes of the committees is subject to the agreement of the members of the committee [?]. In addition, minority positions included in the minutes shall not be attributed to the member concerned unless he or she requests it.

* How to ensure the compatibility of the general rule of access to documents and specific provisions in force?

Under the current system, most problematic requests (in view of the number of repeat requests) concerned pre-litigation documents, files pertaining to state aid or competitions, or procedures relating to open competitions and invitations to tender.

Therefore, it would be beneficial to mention explicitly that the future regulation governing the general right of access to documents shall be applicable without prejudice to:

- Other provisions establishing specific rules for persons having a particular interest in the matter,S

- Other provisions governing the secrecy of certain documents, [9]

- Other specific rules applicable to certain categories of documents [10]

4. Beneficiaries of the right of access

It is necessary to keep to the provisions of the Treaty itself, i.e. "Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State". However, this means that third country nationals who are not resident or who do not have a registered office in a Member State, who are currently covered by the code of conduct, shall not enjoy the right of access.

This legislation is aimed at the citizens. Even if the national administrations or other Community institutions or bodies are not the intended beneficiaries of this right of access, this should not be referred to explicitly in the text. [11]

5. Exceptions to the right of access to be provided for

The current system of exceptions comprises the "obligatory" exceptions (the protection of the public interest, the protection of individuals and the private sphere, the protection of trade and industrial secrets, the protection of the Communities financial interests, the protection of confidentiality requested by the physical or legal person who supplied the information or required by the legislation of the Member State which supplied the information) and one "optional" exception (the protection of the confidentiality of its deliberations).

Overall, the system of exceptions works quite well. Its application has been quite limited and with increasingly better justification. The only real difficulty posed by the application of the exceptions is with regard to the "optional" exception in view of the ruling by the Court of First Instance [12] that the institution must balance the interest of the citizen to obtain access to a document against the institutions interest in preserving the confidentiality of its deliberations.

As a result, rather than aiming for an in-depth reform of the system, it is proposed that the current system be improved as follows:

* The "obligatory" exceptions should be better targeted and more precisely defined, e.g. defining the concept of monetary stability or the incorporation of the concept of the stability of the Community juridical order under the concept of public interest. A reference to specific provisions in force (such as data protection, "comitology" committee documents, etc.) should also be included. Specific exceptions relating to the field of "justice and home affairs" and to the fight against fraud (e.g. to protect informers or whistleblowers) should perhaps also be included;

* The exception to protect the confidentiality of institutions' deliberations would be retained as an option. However, in order to facilitate the balancing of interests as advocated by the Court of First Instance, it would be useful to establish criteria to guide the evaluation of this balancing act and the reasons justifying the recourse to this exception. The definition of "accessible" documents, which would per force exclude certain types of notes and would thus allow the use of this exception to be reduced to a minimum, could go some way in resolving this problem. In connection with this exception, it is proposed that an 'embargo' system be created to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of a document from giving rise to "misunderstandings" or jeopardising the interests of the institution (e.g. granting access to preparatory documents only after the formal adoption of a decision by the Commission, or, where appropriate, the European Parliament or Council).

These common principles will require internal implementing provisions within the three institutions in order to provide for the various scenarios.

6. Provisions on the exercise of the right of access

Since the current system works well, it is advocated that similar provisions to those currently in force be established in relation with issues pertaining to exercising the right of access. These are explained in the technical annex.

7. Final provisions

* The European Parliament, the Council and the Commission shall each draw up the necessary measures, to be incorporated in their internal rules of procedure, in order to implement the principles set out herein.

* The institutions pledge to inform the public of the provisions which they intend to adopt in relation to access to their documents, where necessary by establishing registers of "accessible" documents.

* The institutions also pledge to organise training for their staff.

IV. Related issues

* Creation of registers

In order to inform the public of the documents, access to which may be requested, and in order to enhance the public impact of the policy on access to documents, it is proposed that registers [13] of "accessible" documents be created.

A precise definition of documents to be registered, taking account of the established definition of "accessible" documents, is therefore vital. This could include, in addition to the documents adopted by the institution, preparatory documents (documents drawn up in preparation of a final decision) and documents concerning the organisation of the institution, though, for practical reasons, not documents of a purely internal nature (notes drawn up by a particular department, background notes, etc.). Classified documents could also be included with a mention of their classified status. Careful thought must be given to the organisation of the administration, whether centralised or not, of these registers, taking account of the practical implications for the departments concerned.

Without applying a rigid system of registration, archiving and classification of documents, it would not seem advisable to decide in a rigid and automatic manner on the accessibility of categories of documents. This is also the reason why the approach used to date in the implementation of the policy on access to documents has been one of examining each request on a case by case basis. In addition, an exhaustive register would be unfeasible at the moment. However, as a first step, consideration could be given to publishing the list of SEC documents, which are the category of documents requested most frequently, and other documents of particular interest to the public (Guide to services/departments, establishment plan, etc.).

Other means of informing citizens about the institutions' activities and the 'accessible' documents should be encouraged (notably through the EUROPA server on the internet).

* Compatibility of the "hard core" of Article 255 of the EC Treaty and a more "flexible"system regarding public access to Commission, European Parliament and Council documents

The "hard core" of Article 255 of the EC Treaty is to be seen in a broader context. A co-existence of this "concentrated" system and one showing greater flexibility could be achieved. In particular, a system going beyond the strict provisions of Article 255 of the EC Treaty could be envisaged, granting access to certain documents (notably to documents of a purely internal nature) or to certain people (third country citizens not resident in the EU), or granting access to documents of other Community institutions, bodies or agencies, without granting a formal right of access (i.e. without granting a right to legal recourse).

V. Conclusions

The Commission is called on to approve the framework and guidelines proposed for future legislation implementing Article 255 of the EC Treaty and to request that the Secretariat General submit a formal proposal on that basis.

Annexes:

* Technical annex

* Statistical analysis of requests for access to Commission documents in 1998.


Footnotes:

1. OJ L 340, 31 December 1993.

2. OJ L 46, 18 February 1994.

3. OJ L 263, 25 September 1997.

4. Case T-194/95, The Guardian vs. the Council, judgment of 19 October 1995 and Case T-105/95, WWF vs. the Commission, judgment of 5 March 1997.

5. OJ L 247, 28 September 1996.

6. OJ L 325, 14 December 1996.

7. Declaration No 35 pursuant to which a Member State may ask the Commission or the Council not to release to a third party a document originating in that State without the latter's prior consent.

8. Specific rules:

* Rules pertaining to jurisdictional procedures, state aid and competition (rules established by the Commission: cf. Annual reports on competition);

* Provisions of the Staff Regulations for Officials and other servants of the Communities, e.g. with regard to open competitions;

* CCAM rules relating to invitations to tender;

* Directive on the protection of individuals with regard to the processing of personal data (a person's right of access to his or her own personal file) C0M/92/422.

9. Other provisions:

* Rules governing activities in connection with anti-fraud investigations,

* Rules on investigations in the customs and agricultural fields;

* Commission decision of 30 November 1994 on security measures applicable to classified information.

10. Other rules:

* Rules concerning "comitology" committee documents;

* Rules on historical archives (Council Regulation of 1 February 1983, OJ L 43, 15 February 1993);

* Rules on statistics (Council Regulation of 11 June 1990, OJ 151, 15 June 1990);

* Rules on information of a budgetary nature?

11. It would be useful to set out the situation regarding the privileged access to institutions' documents enjoyed by the European Parliament, the Council, the Court of Auditors, the European Ombudsman, the Member States and the national administrations and judicial systems, where necessary by means of agreements with them to facilitate their access subject to the respect of certain commitments.

12. Judgment of the Court of First Instance of 19 October 1995, Case T-194/95, The Guardian vs.the Council.

13. With a view to improving transparency, the Council decided on 19 march 1998 to establish a public register of non-classified documents, accessible though the EUROPA server on the internet. The Council register, which shall be accessible to the public as of 1 January 1999, does not contain internal documents (departmental notes, etc.) though it does contain all non-classified Council documents, including those relating to the preparatory stages of the decision-making process.

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