EUROPEAN COMMISSION

Secretary General

Directorate C

Actions of interest to the citizen

Brussels, 22 October 1999

SG.C.2/VJ/CD D(98) 1999

 

PROPOSAL FOR A COUNCIL REGULATION CONCERNING PUBLIC ACCESS TO DOCUMENTS OF THE EUROPEAN PARLIAMENT, COUNCIL AND COMMISSION

- DRAFT -

THE COUNCIL OF THE EUROPEAN UNION,

having regard to the Treaties establishing the European Community, and notably to Article 255,

having regard to the Commission proposal,

having regard to the opinion of the Economic and Social Committee, (optional)

having regard to the Regional Committee, (optional)

Acting pursuant to the procedure referred to in Article 251 of the Treaty,

Whereas,

The Treaty of Amsterdam enshrines the concept of transparency in the new first Article of the Treaty on the European union, paragraph 2, which provides that "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,"

Whereas,

Transparency allows greater participation by the citizen in the legislative process and guarantees greater legitimacy, effectiveness and accountability within the administration vis-à-vis the citizens in a democratic system, by reducing fraud, corruption and bad management,

Whereas,

Granting the citizen right of access to documents is a necessary condition for making this transparency real,

Whereas,

The Treaty on European Union, and the conclusions of the European Councils of Birmingham, Edinburgh and Copenhagen emphasised the need to ensure greater transparency in the workings of the institutions of the Union; and that following these conclusions, the institutions launched a whole series of initiatives aimed at improving transparency in the legislative process, in particular through the adoption of rules on public access to their documents, completing actions already taken in the area of information and communication,

Whereas,

This new regulation aims to optimise access to documents,

Whereas,

Pursuant to Articles 28(1) and 41(1) of the Treaty on European Union, the right of access is equally applicable to documents relating to foreign and security policy and police and judicial cooperation (Titles V and VI),

Whereas,

Following Declaration 41 on provisions relating to transparency, access to documents and the combating of fraud, the new legislation also covers documents existing under the CECA and EURATOM treaties,

Having regard to the Green Book on public sector information in the information society,

Having regard to the Aarhus Convention on access to information, public participation and access to justice in the domain of the environment,

Having regard to the regulation of the European Parliament and Council on protection of the natural person as concerns processing of personal data by the institutions and organs of the European Community, and the free circulation of this data.

Having regard to the report of the European Parliament on transparency within the European Union,

Having regard to the special report drawn up by the Mediator following his enquiry into the rules for public access to documents held by Community institutions and organs,

Considering it desirable that other Community institutions, [agencies] and organs should adhere to these principles and adopt in future comparable provisions governing access to their documents,

Emphasising that the principles set out below are a minimum, and can in no case be prejudicial to provisions applying to access to documents that directly concern persons with a specific interest in them,

HAS DECIDED:

Article 1: Scope and definitions

1.1 The present regulation shall be applicable to documents held by the institution, that is to say, produced by the institution or by third parties, including member states and other Community or non-Community organs.

1.2 "Document" is understood as any medium containing data (written on paper or stored in electronic form, and audio, visual or audiovisual recordings).

1.3 Only administrative documents, i.e. documents concerning matters relating to the policies, actions and decisions falling within the field of competence of the institution, are covered.

1.5 [sic]Partial access will be granted to a document of which a part is covered by one of the exceptions provided for under Article 3.

1.6 This regulation does not apply where there are specific provisions in respect of access to documents constituting the 'lex specialis'.

Article 2: General principle and beneficiaries

All citizens of the Union and all natural or legal persons resident or having their seat in a Member State have the right to the broadest possible access to the documents of the European Parliament, the Council and the Commission, without having to justify an interest, subject to the exemptions specified under Article 3.

Article 3: Schedule of exemptions

The institutions shall refuse access to documents, the disclosure of which could jeopardise the protection of:

1. the public interest (public security, defence and international relations, relations between and/or with the Member States or Community and non-Community institutions and bodies, financial or economic interests, monetary stability, stability of the Community legal order, judicial proceedings, including any preparatory stages, and actions relating to inspections and inquiries, infringement procedures);

2. respect for the right to privacy and of the individual (personal files; information, opinions and assessments provided on a confidential basis in relation to appointments or nominations; personal information concerning a person or a document the disclosure of which could constitute or facilitate an invasion of privacy, such as data covered by medical confidentiality);(1)

3. the proper functioning of the processes of internal consultation, deliberation and decision-making;

4. commercial or industrial secrets (information, including business confidences, trade secrets or intellectual property, the unauthorised divulgence of which would prejudice a third party's competitiveness; industrial, financial, banking and commercial information, including that concerning business relations or contracts, information on costs and offers following the award of contracts);

5. the financial or economic interests of the Union (e.g., documents that could have an impact on the monetary situation);

6. exceptions specific to the following areas: 'Justice and internal affairs' (prevention, investigation and pursuit of criminal activities), 'Foreign policy and common security', the combat against fraud (in particular to protect those who expose fraud or to keep secret operational details of investigations in progress);

7. confidentiality requested by the natural or legal person, or required by the legislation of the Member State which supplied the document or information. In addition, if the document produced by a member state or another Community or non-Community institution or organ is classified, or if the document requested was written by the Community institution on the basis of classified information emanating from a member state or another Community or non-Community institution, the institution may only change this classification if the information as such is already widely available, and/or if the author authorises declassification.

Article 4: Treatment of initial requests

All requests for access to a document must be formulated in writing and be sent by mail, fax or electronic medium (e.g., e-mail) and must be sufficiently precise to allow the institution to identify the document.

Where that is not the case, the institution concerned shall ask the applicant to state his or her request in greater detail.

In cases of repeated requests and/or requests concerning long documents, the institution concerned shall seek an amicable solution with the applicant in order to come to an equitable arrangement.

The competent departments of the institution shall inform the applicant in writing within a month from the registration of the request of the decision taken regarding the request.

Where the competent departments of the institution have given a negative response to the applicant, based on one of the exemptions provided for under Article 3, they shall inform the applicant of the possibility open to him or her of making a renewed request to the institution within a month of receiving its reply, asking it to reconsider its position. Should the applicant fail to do so, then the original request shall be deemed to have been relinquished.

The absence of a response within the required time limit shall be deemed to be a negative response.

In exceptional cases, the one-month time limit may be extended by a month, on the basis of information previously supplied by the applicant, with a detailed justification for the extension. (For example, if a search for a document is in progress, or if it is necessary to consult third parties.)

Article 5: Mode of exercising the right of access

Access to documents may be granted either by allowing consultation in situ or by supplying a paper copy of the document or by electronic transmission over the Internet.

The cost of access will be borne by the applicant, without their exceeding a reasonable sum.

The documents shall be supplied in the language version available, taking account of any preference expressed by the applicant.

Article 6: Copyright

The applicant who has obtained a document shall not reproduce or publish it for commercial purposes without prior authorisation from the institution.

Article 7: Treatment of renewed requests and avenues of appeal

Where the applicant submits a renewed request, the institution concerned shall have a month from the date of registration of this request to reply to the applicant in writing. Should it decide to confirm its refusal to grant access to the document requested, the institution must duly justify this refusal on the basis of one of the exemptions provided for under Article 4 and inform the applicant of the avenues of appeal available, to whit initiating court proceedings and/or lodging a complaint with the Ombudsman, subject to the conditions laid down under Articles 230 and 195 of the EC Treaty.

In exceptional cases, this time limit may be extended by a month upon prior notification by the applicant, with a detailed justification for the extension.

Article 8: Registers

In order to make it easier for citizens to exercise their right of access, each institution shall make available to the public a register of documents.

Final provisions

The present regulation shall take effect the …day after publication in the Official Journal. Right of access to documents emanating from third parties shall be limited to documents created after it comes into force.

The European Parliament, the Council and the Commission will each draw up, as far as it is concerned and within its internal regulatory regime, measures necessary for the implementation of these principles, before the [date]. In particular, they will inform the public of new provisions in force, and will organise staff training on the subject. They will also revise their methods of classifying, accessioning, filing and archiving their documents. In addition, they will, if necessary, revise specific provisions for access to documents forming the 'lex specialis', in order to ensure that they conform with the general principles of transparency.

The present regulation shall be reviewed after two years of application on the basis of a report drawn up by the Secretary General of each institution.

Note:

1. Directive 95/46 on the protection of the natural person regarding processing of personal data.

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