[Statewatch: provisional translation; linguist version to follow]

European Commission - General Secretariat

Directorate C

Actions of interest for the citizen

Brussels 29.11.99

SG.C2/VJ/CD D(98) 159/2

PARLIAMENT AND COUNCIL PROPOSAL RELATING TO PUBLIC ACCESS TO THE DOCUMENTS OF THE EUROPEAN PARLIAMENT, COUNCIL AND COMMISSION

DRAFT

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

having regard to the treaty establishing the European Community, in particular article 255 paragraph 2,

having regard to the Commission's proposal,

legislating in accordance with the procedure envisaged in article 251 of the treaty,

considering the following:

1. The Treaty on European Union, as resulting from the Treaty of Amsterdam, which sets out the notion of transparency in Article 1 paragraph 2, which provides that "the present treaty marks a new step in the process creating an ever closer union between the people of Europe, in which decisions are taken with the greatest possible respect for the principle of openness, and as closely as possible to the citizens."

2. Transparency permits guaranteeing an improved participation by citizens in the decision-making process, as well as guaranteeing a greater legitimacy, efficiency and responsibility of administration with regard to citizens in a democratic system.

3. The conclusions of the European Councils of Birmingham, Edinburgh and Copenhagen underscored the need to guarantee greater transparency in the work of the institutions of the Union. Following these conclusions, the institutions launched a series of initiatives aimed at improving transparency in the decision making process, in part through actions aimed more at matters of information and communication, and in part through the adoption of regulations relating to public access to documents.

4. The present regulation which takes the place of previous regulations aims to optimise access to documents with the greatest respect for the principle of openness. It initiates the right of access to documents, defining conditions and limitations in conformity with the terms of Article 255 paragraph 2 of the EC Treaty.

5. As the question of access to documents was not the object of measures in the ECSC and Euratom treaties, the present regulation applies to documents concerning the activities covered by these two treaties. This was confirmed by declaration no 41 annexed to the Treaty of Amsterdam.

6. By virtue of Articles 28 paragraph 1 and 41 paragraph 1 of the Treaty on European Union, the right of access is also applicable to documents regarding foreign and security policy and police and judicial cooperation.

7. It is necessary for now to limit ourselves to documents established by the institutions in order to allow for the initiation of measures which will make necessary the introduction of documents from third parties into the scope of application of the present regulation.

8. The principles established by the present regulation do not prejudice specific measures applicable to access to documents, notably those directly concerning persons who have a specific interest in them.

9. The good functioning of the institutions necessitates protection of the freedom of thought and of preliminary internal discussions. Consequently, there is the capacity to exclude certain types of internal documents or preparatory documents from the scope of application of the present regulation, or at least during a certain period of time.

10. It is also indispensable to be able to guarantee the protection of the public interest and of certain particular interests by means of a regime of exceptions. It will be appropriate to provide examples of each of these interests in order to make this regime as transparent as possible.

11. Conforming to Declaration no 35 annexed to the Treaty of Amsterdam, the principles and conditions envisaged in Article 255 of the EC Treaty should allow a Member State to ask the Commission or the Council not to communicate to a third party a document emanating from this state without the prior accord of the latter.

12. In order to assure full respect for the right of access it will be necessary to maintain the current two phase administrative procedure, with the possibility of juridical recourse or of complaints procedure to a mediator.

13. In order to facilitate citizens' exercise of the right flowing from the present regulation, it will be necessary for each institution to take appropriate measures to inform the public, particularly by making a register of documents accessible.

14. By way of clarification, it should be stated that the Member States must apply the principles and the limitations set out by the present regulation when they receive requests for access to documents set out by one of the institutions.

15. By virtue of Article 255 paragraph 3 of the EC Treaty, each institution will elaborate in its internal regulations specific measures concerning access to its documents. The coming into force of the present regulation is a necessary condition for its applicability. It will be necessary that the institutions inform the public, in an appropriate manner of the present regulation and its entry into force.

We attach the present regulation:

Article 1

Scope of application

1. The present regulation applies to documents established by the institution. Access to documents emanating from third parties will be the object of re-examination after two years, with a view to their eventual introduction to the scope of the application of the present regulation.

2. Working documents/papers drawn up for exclusively internal utilisation consisting of thought or discussion papers between members, civil servants or the services of the institution, including the opinion of the services do not come into the scope of application of the present application.

3. Other working papers consisting of non-definitive [non-finalised] documents at various stages of the adoption of the documents by the institution, will not become accessible to the public until the taking of the final decision.

4. This regulation does not apply in cases where there exists specific measures containing regulations about access to documents.

Article 2

Definitions

For the purpose of the present regulation we understand by:

a) "document": every existing medium containing data (written, or stored in electronic, recorded, visual or audiovisual format); only administrative documents are covered, that is, documents concerning subjects relating to policies, actions and decisions relating to the institution's area of competence.

b) "institution": the European Parliament, the Council and the Commission.

c) "European Parliament": its organs (Parliament Bureau, Conference of Presidents etc), parliamentary commissions, political groups, services.

d) "Council": its different components and organs, (COREPER, working groups, etc), services and committees created by the treaty or the legislature for assisting the Council.

e) "Commission": the college, its members and their cabinets, the directorates-general and services, representatives and delegations, as well as the committees created by the Commission and the committees created to assist the Commission, notably in the exercise of its executive powers.

The list of committees envisaged in points d) and e) will be finalised in the context of the implementation of the present regulation, provided for in Article 11.

Article 3

General and beneficial principle

Every citizen of the Union and every natural or legal person residing or having a base in a member state has a right of as wide access as possible to the documents of the institutions in the sense of the present regulation, without having to prove an interest, subject to the exceptions specified in Article 4.

Article 4

Exceptions regime

The institutions may refuse access to documents the divulgence of which could endanger the protection of:

a) public interest (notably, public security, defence and international relations, relations between the member states or the institutions and organs of the community or outside the community, financial or economic interests, monetary stability, stability of the community judicial order, juridical procedures, inspection and enquiry activities, the process of breach procedures, including preparatory measures);

b) respect for private life and for the individual (notably, personal files, information, opinions and acknowledgements of a confidential nature concerning undertaking/employment or nominations; personal information about a person or a document the divulgence of which could constitute or facilitate a threat to private life, such as data covered by medical confidentiality);

c) commercial or industrial confidentiality of the economic interests of an established enterprise (notably business and commercial secrecy; intellectual property; industrial, financial, banking and commercial information, excluding information dealing with business relations or contracts, information on prices/costs and offers following adjudication);

d) confidentiality required by natural or legal persons or required by the legislation of a member state which has provided the document or information in question.

Article 5

Handling of initial applications

1. Each request for access to a document must be formulated in writing in a manner sufficiently precise to enable the institution to identify the document. If these conditions are not fulfilled, the institution in question will ask the person making the request to be more precise.

In the case of repeated requests, and/or requests for large documents, the institution in question will look, with the person making the request, for an amicable solution in order to reach an equitable arrangement.

2. The competent services of the institution will inform the person making the request, in writing within one month of the registration of their request of the outcome of their request.

3. If the competent services of the institution have given a negative response to the person making the request, based on one of the exceptions formulated in Article 4, the person will be informed by the services of their possibility within a month of the receipt of the response to formulate a confirmatory request to the institution aiming to revise this position. If this possibility is not exercised, the person will be considered to have renounced their initial request.

4. In exceptional cases, the month time limit may, depending on prior information from the person making the request and a full explanation of reasons, be prolonged for another month.

The absence of a response in the stated time indicates a negative response.

Article 6

Handling of confirmatory requests and recourse

1. If the person making the request forwards a confirmatory request, the institution in question will have one month from the registration of this request to respond in writing to the person making the request. If the institution decides to confirm the refusal of access to the requested document, it must base this refusal on one of the exceptions formulated in Article 4 and inform the person making the request of the recourse available to him (sic), ie: juridical recourse and complaining to the mediator, under the conditions formulated in Articles 230 and 195 respectively of the EC Treaty.

2. In exceptional cases this time limit may, depending on prior information from the person making the request and a full explanation of reasons, be prolonged by a month.

The absence of a response in the stated time indicates a negative response.

Article 7

Mode of exercising the right of access

1. Access to documents is exercised either by consultation at the appropriate place or by delivery of a copy of the documents on paper or in electronic format.

2. The cost of access may be charged to the person making the request.

3. Documents are provided in the available language version, taking into account the preference expressed by the person making the request.

4. An edited version of the document requested will be given if a part of the document is covered by one of the exceptions formulated in Article 4. In any case, the institution will be able, in particular cases where the volume of the document or where the passages to be deleted would entail an excessive administrative task, to balance the public interest in access to the incomplete document against the cost/burden of work which flows from it.

Article 8

Reproduction or other economic exploitation

The person who requests and obtains a document may not reproduce it or in any sense economically exploit it without the prior authorisation of the competent party.

Article 9

Information and registers

Each institution will take the necessary measures to inform the public of their rights flowing from the present regulation, in particular by making a register of documents accessible.

Article 10

Application by Member States

The Member States will apply the general principles and limits formulated in Articles 1, 3 and 4 of the present regulation when they receive requests for access to documents drawn up by one of the institutions.

Article 11

Implementation

Each institution will elaborate, in its internal regulations, the requisite measures for implementing the present regulation. These internal regulations will come into force in the third month following the adoption of the present regulation.

Article 12

Re-examination

The present regulation will be the object of a re-examination after 2 years experience on the basis of a report drawn up by the Secretary General of each institution.

Article 13

Entry into force

The present regulation comes into force on the third day following its publication in the Official Journal of the European Communities. It is applicable to each institution from the entry into force of its implementing regulations, as formulated under Article 11.