Letter from Graham Watson, Chair of the Citizens' Freedoms and Rights Committee, to the President of the European Parliament


- Le Président -

Madame Nicole FONTAINE, Présidente du Parlement européen


Madame la Présidente,

As you know, the commission for citizens' freedom and rights, justice and home affairs has started work on the examination of the regulation based on article 255 of the EC Treaty regarding the general principles and limits which, for reasons of public or private interest, govern the right of access to documents from Parliament, the Council, and the Commission.

The future regulation, in accordance with articles 28 and 41 of TUE, also applies in the field of foreign affairs and common security (2nd pillar) and of police and judicial cooperation in penal matters (3rd pillar).

At its meeting on 28th August, the commission raised the question of the legitimacy of two measures recently adopted by the Council concerning the classification of Council documents relating to the 2nd pillar and published in JO L212 and C239 of 23/8/2000.

These concern:

- the Council's decision of 14/8/00 which modifies decision 93/731/CE relating to public access to Council documents and decision 2000/23/CE concerning the improvement of information about Council activities and the public register of Council documents.

- the decision of the Secretary General of the Council/High Representative on foreign affairs and collective security of 27/7/2000, relating to measures protecting classified information applicable to the office of Secretary General of the Council.

The first text is based on article 207 of the Treaty which is aimed at the adoption by the Council of internal rules for the implementation of the general regulation to be adopted on the basis of article 255, which is presently under examination by Parliament. It will therefore concern a measure which anticipates a regulation which has not yet been adopted. In addition, the decision of the Council aims to exclude certain Council documents relating to the 2nd pillar from the scope of the Council rules concerning public access to institutional documents, while article 255(2) makes it clear that "the general principles and limits which, for reasons of public or private interest, govern the exercise of this right of access to documents are fixed by the Council, ruling according to the procedure aimed at article 251."

In the opinion of the commission over which I have the honour to preside, the community legislator must respect the 'ratio' specific to the two articles of the Treaty and only have recourse to article 207 for the definition of 'modes of access', the 'limits of access' being regulated according to the procedure cited in article 255.

As far as the decision of the Secretary General of the Council is concerned, this is based on article 23 paragraph 2, 2nd line of the internal regulation of the Council from which the Secretary General takes all necessary measures to ensure the proper functioning of the office of Secretary General. It turns out however that this administrative decision establishes a classification of documents which is supposed to impose also on other institutions, on member states, as well as, in the last resort, on citizens. In these circumstances, in our commission's opinion, such a decision encroaches on the content of article 255, paragraph 2 of the Treaty, whose regulations should be established in codecision between the Parliament and the Council.

In order to defend the prerogatives of the European Parliament, and according to article 91 of the regulation, we request that you examine the possibility, in referring the question to the legal affairs and internal market commission, of judicial recourse against these two decisions as a protective measure.

This recourse in no way calls into question the necessity of establishing, at the level of the Union and wherever else it proves necessary, limits of access to institutional documents, especially when the internal or external security of the Union would be compromised. That should however occur in the appropriate context, which is in our opinion, the future regulation to be adopted to enforce article 255 of the Treaty.

Given the political and institutional sensitivity of the subject and the necessity of resolving real problems which are the raison d'être of Council decisions, I also propose that you raise this question during your next trilogue with the Presidents of other institutions.

I remain, with the reporters M.Cashman and Mme Maij-Weggen, at your complete disposal for any further information.

Yours faithfully

Graham R. WATSON

cc : Mme Ana PALACIO VALLELERSUNDI, Présidente de la commission juridique et du marché intérieur - President of the legal affairs and internal market commission

M. Gregorio GARZÓN CLARIANA, Juriconsulte - Jurisconsult

M. Julian PRIESTLEY, Secrétaire général - Secretary General

M. Dietmar NICKEL, Directeur général - Director General

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