• Home /
• Observatories /
• Freedom of information in the EU /
• 1999-2007: Secret Europe: reporting on secrecy and openness in Europe /
• Proposed Statewatch amendments to EP committee amendments to proposed Regulation on access to documents

Proposed Statewatch amendments to EP committee amendments to proposed Regulation on access to documents

The amendments proposed here by Statewatch are to the Cashmam/Maij-Weggen report which was adopted by the Committee on Citizens' Freedoms and Rights and is now put forward to the next plenary session of the European Parliament (15.11.00) to be adopted as the EP's first reading opinion on the Commission's proposal of 26 January. Thus "Amendent 26" refers to "Amendment 26" in this report.

New Amendment

Change proposal from "Regulation" to "Decision" throughout

Justification:

Article 255 EC is in Chapter 2 of Title I of Part Five of the EC Treaty, which addresses only matters relating to the EC institutions. Since, according to Article 249 EC, Regulations are directly applicable in national legal systems, it is inappropriate for this proposal to take the form of a Regulation, for this might give rise to confusion about its effect in national legal systems.

Amendment 6

Recital 2a

Delete

Justification:

Article 255 EC is the legal base only for adoption of legislation concerning relations between the public and the Community institutions. It cannot therefore serve as a base for adoption of legislation concerning relations between the institutions.

Amendment 7

Recital 3

Delete line beginning,

"On the same basis..."

Justification:

See comments on amendment 6.

Amendment 13

Recital 7a

Add to the end of the recital,

"without prejudice to the right of access to other documents"

Justification:

The recitals should make it clear that access to other types of documents is also very important.

Amendment 15

Recital 9

Amend to read:

In principle, the right of access extends to all the documents held by the institutions. However, certain public and private interests may be protected by a system of exceptions. [line deleted] When taking decisions on the disclosure of a document the need to protect some of the interests protected by the exceptions must be weighed against the public interest to promote transparency and public discussion.

Justification:

Article 255 EC refers to the right of access to documents, without permitting the institutions to exclude certain categories of document from this right. The Treaty does not delegate to the institutions the power to define "document" (compare with the power to define "legislative activity"). Therefore no class of documents can be excluded from the scope of this proposal in any way. If the final legislation purported to do that, it would be invalid. Moreover, it would be wrong in principle to exclude such documents from the scope of the rules, because it would give the institutions an easy route to keep documents secret forever.

This recital also needs to be amended to refer to the 'right of access' and to all documents 'held by' the institutions.

Amendment 20

Recital 12

Amend to read:

[words deleted]. In accordance with the principle of limited powers specified in Article 5 EC and the specific powers conferred upon the institutions by Article 255 EC, this Decision cannot and does not amend, affect or harmonise existing or future national legislation on access to documents in any way. [remaining words deleted].

Justification:

Article 255 EC does not give the institutions the power to change national laws; it only regulates relations directly between the public and the EC institutions. Any reference to any effect, even limited, upon national law should therefore be removed. The principle of limited Community powers in Article 5 EC takes precedence over the principle of 'solidarity' in Article 10 EC. The recital should specify also that future national law will be unaffected by the Decision.

Amendment 26

Article 2(2)

Amend to read:

...this Decision takes precedence over existing measures adopted on the basis of....

Justification:

The less favourable secondary legislation over which this Decision should take precedence will not necessarily take the form of Regulations.

Amendment 28

Article 3(a)

Delete the paragraph beginning, "'document' shall not mean..."

Justification:

The institutions have no power to exclude certain matters from the concept of "document", which is a concept based on the Treaty; such an exclusion is also wrong in principle (see comments on amendment 13). The remaining paragraph of Article 3(a) should be left, even though it is only declaratory, in the interest of informing the public about the concept of "document".

The intention of avoiding embarrassment of particular staff members of the institutions will still be served by means of Parliament's suggested Article 4(4).

Amendment 28

Article 3(b)

Amend to read:

"...(such as the institutions' secretariats, Parliament Committees, Council Committees..."

Justification:

For the avoidance of any doubt, it should be specified that documents held by the institutions' secretariats are covered by this Decision.

Amendment 28

Article 3a(2)

Delete

Justification:

It is unacceptable to subject the right of access to documents to an institution's internal system of classifying documents, particularly since the Council Secretary-General's Decision has no system of remedies or scrutiny of classification decisions. This flaw cannot be remedied by the proposed Article 4b, because that clause exceeds the powers granted to the institutions by Article 255 EC (see comments below on amendment 34).

Amendment 28

Article 3a(3)

Delete the line beginning, "In any event..."

Justification:

See comments on Article 3a(2) directly above.

Amendment 34

Article 4b

Delete

Justification:

Article 255 only grants power to the institutions to adopt rules governing the public's right of access to documents held by the institutions. It does not give them the power to adopt rules governing relations between themselves.

Amendment 36

Article 4c

Amend to read:

1. The Member State or third party which transmits documents to an institution shall indicate which parts of the documents should not, in its view, be disclosed to the public.
2. The Member State or third party must refer to the relevant exceptions in Article 4 and must state whether the proposed non-disclosure is limited in time.
3. If the document is subsequently requested by the public, the institution in question shall then decide whether to disclose all or part of the document in accordance with Article 4.

[existing paragraphs 3 and 4 deleted]

[existing paragraph 5 remains without any amendment]

Justification:

The committee's proposed text of Article 4c is not accordance with its stated justification for the proposed Article, which argues (correctly) that the final decision on whether to release a document received from a Member State or third party must be up to the institution holding the document. Paragraphs 1 and 2 must therefore be amended.

Paragraphs 3 and 4 of the committee's proposed text of Article 4c conflict with Article 4(3) of its proposed text, which provides simply in accordance with the case law of the Court of First Instance that an edited version of a document shall be released if the exceptions in the Decision apply to part of that document. Moreover, as regards paragraph 3, release of a 'public' version of a document would be misleading and deceptive and should not be encouraged. As regards paragraph 4, it must also be deleted because Article 255 does not give the institutions the power to adopt rules governing relations between themselves (see comments on amendment 28). Finally, it would clearly breach Article 255 to subject release of third party and Member State documents to rules agreed in a future Inter-Institutional Agreement, since Article 255 manifestly requires the rules on release of such documents to be subject only to the measure adopted pursuant to that Treaty Article. These two paragraphs must therefore be replaced by a simple cross-reference to Article 4 of the Decision.

Amendment 37

Article 4d

Delete

Justification:

Article 255 EC does not give the institutions the power to change national procedures; it only regulates relations directly between the public and the EC institutions (see comments on amendment 15 above).

Amendment 43

Article 7(3)

Delete

Justification:

Article 255 only grants power to the institutions to adopt rules governing the public's right of access to documents held by the institutions. It does not give them the power to adopt rules governing relations between themselves.

Amendment 44

Article 8

Replace Article with the following text:

1. An applicant who has obtained a document initially produced by a public body may reproduce it in any form if due credit is given to the source of the document.
2. An applicant who has obtained a document initially produced by a private entity may reproduce it subject to the applicable intellectual and industry property laws, applied with due regard for publication of information in the public interest.

Justification:

The existing text of the proposal appears to restrict publication of documents obtained pursuant to the Decision, and must therefore be replaced, since the Decision's aim of informed public discussion of the Union's activity is impractical unless documents are published in full or part. The proposed new text distinguishes between information obtained from public bodies (the Member States, the EU institutions, bodies and agencies, third states, international institutions, agencies and sub-central governments in Member States and third states) which should not be able to restrict publication of documents produced with public funds, and private entities which might be able to restrict such publication subject to public interest considerations. For example, a polluting company should not able to invoke copyright to prevent publication of a document disclosed pursuant to this Decision which discloses that it is breaching Community or other environmental laws.

Amendment 46

Article 9a(1)

Add to the end of the first sub-paragraph:

"to the public, in particular by means of the Internet".

Justification:

It is preferable to specify that the registers in question must be available on the Internet, in case any institution takes the view that a Register which may be consulted in an office in Brussels is sufficient. Without an Internet register, there will be no effective public access. Since Article 9a(4) requires released documents to be available on the Internet, it would be illogical not to require the registers themselves to be available in the same way. Moreover, an Internet register reflects the Council's current practice.

Amendment 46

Article 9a(3)

Delete

Justification:

The wording of this paragraph leaves it open to the institutions to leave whichever documents they wish off the registers, other than those listed in the Annex. This conflicts with Article 9a(1) of the proposed text, which specifies that all documents must appear on the register. It is wrong in principle to leave any documents off the registers, because this will severely reduce the public's ability to discern whether such documents exist.

Amendment 50

Article 9c(4)

Delete

Justification:

The intention of this paragraph is desirable, but it is not for the Council to adopt changes to the rules of procedure of the EC Courts. Its role is limited by the EC Treaty to approving changes suggested by those Courts.

Amendment 56

Article 11b

Add (g):

Article 2 of Council Decision 2000/645/EC of 17 October 2000 correcting the Schengen acquis as contained in Schengen Executive Committee SCH/Com-ex (94) 15 rev. [OJ L 272, 25.10.2000, p 24]

Justification:

The secrecy rule in this recent Decision should also be repealed.

Amendment 61

Annex IV

Amend as follows:

1(d) ...Articles 24 or 38 of the Treaty on European Union...

1(f) "...of the EC Treaty or pursuant to Article 34(2) of the Treaty on European Union"

2. The following shall be published in the Official Journal, unless Article 4 of this Decision applies:

new 2(d): decisions taken by a body vested with powers of decision set up by an agreement concluded pursuant to Article 300 of the EC Treaty or Articles 24 or 38 of the Treaty on European Union

[Delete paragraph 3]

Justification:

There is no reason for the Annex to confine itself to the rules in the Council's existing Rules of Procedure. It should therefore be improved by specifying that 'third pillar' treaties and Commission third pillar proposals should be published; that the measures listed in Article 2 must be published unless there is an overwhelming public interest argument against publication; that publication of acts of international bodies binding the EC should not be at the Council's discretion, but should be mandatory unless there is an overwhelming public interest against publication; and that the same rules should apply to publication of acts of international bodies in the EU Treaty context.

Amendment 62

Annex V

Delete

Justification:

This follows from the deletion of Article 9a(3). See comments on amendment 46 above.