Council Presidency seeks to exploit new "rights" for EU institutions in European Parliament report on access to documents



Introduction

The French Presidency of the Council of the European Union presented a report to COREPER (the committee of top-level representatives of the 15 EU member state delegations based in Brussels) on 31 October which seeks to exploit selected proposals in the Cashman (PSE)/Maij-Weggen (PPE) report on the public's right of access to EU documents going to the European Parliament's plenary session on 16 November.

This report to COREPER highlights the weaknesses in the Cashman (PSE)/Maij-Weggen (PPE) report to the EP. It takes up four proposals from their report:

a) to include the pre-classification of documents: the Council report notes that there is no obligation under Article 255 of the Amsterdam Treaty (the Article establishing the public's right of access) but clearly likes the idea of doing so. This would allow the officials who sit on the working parties drawing up documents to decide what should be released (such officials are not well-known for their "openness").

b) documents requiring "special treatment": the Council likes too the idea of a series of "interinstitutional agreements" which would exclude categories of documents, like those in the "Solana Decision" on "military and non-military crisis management". This would be backed up, according to the EP, by a small committee of select MEPs who would get access. The inclusion of interinstitutional agreements between the three EU institutions - the Council, the Commission and the European Parliament - in the new code of access would be an abuse of the Treaty provision in Article 255 which is intended to extend the rights of access of citizens, not institutions. Such a move would probably be unlawful and could be challenged in the European Court of Justice.

c) Application to Member States: the Council on this issue highlights a contradiction in the EP report. It suggests that the Cashman (PSE)/Maij-Weggen (PPE) report could mean that the new code would not apply when the originator of a document is an EU Member State - as more and more new measures/initiatives in the Council are coming from Member States, especially on justice and home affairs, it would mean that citizens would have not rights of access under EU law.

d) Third party documents: It is interesting that the Council report should cover this provision as the EP report is confused and does not establish the principle that EU citizens have a fundamental right of access to documents concerning EU policymaking and practice (subject only to specific and narrow exceptions). The EP report also envisages EU Member States and non-EU states and bodies being allowed to provide "public" (sanitised) versions of documents. The Council report emphasises too Declaration 35 in the Amsterdam Treaty which says that EU Member States can ask the Council or Commission not to give access to a document "without its previous agreement".

FULL TEXT of document

[Statewatch translation]

COUNCIL OF THE EUROPEAN UNION, Brussels, 30 October 2000

12710/00

INF 141
JUR 365
CODEC 819

PRESIDENCY NOTE
to: Coreper (part 2)
previous no:5817/1/00 INF 13 API 11 JUR 32 CODEC 109 (COM(00)30 final/2)
Subject: European Parliament and Council proposal for a regulation relating to public access to European Parliament, Council and Commission documents.

On 21 February 2000, the Commission forwarded the aforementioned document in question (doc. COM(00) 30 final/2). In accordance with article 255 of the TEC, the regulation in question must be adopted according to the co-decision procedure in the two years following the entry into force of the Amsterdam treaty, that is, before the 1 May 2001.

The Information Group has examined the proposal in depth, at the time of the ordinary and extraordinary meetings held under the Portuguese Presidency and during the present semester. For its part, on 24 October 2000, the competent commission of the European Parliament for examining the proposal in depth (Commission of Citizens' Freedoms and Rights, of Justice and of Internal Affairs) has carried out the adoption of the report (A5-0318/2000) which will serve as a basis for the first reading in Parliament.

In order to explore the possibility of a rapprochement between the Parliament and Council on this question and with the Parliament report in mind, the Presidency is trying to bring out some orientations on the questions of principle, identified below by the Information Group.

1) Approach by classification

Although article 255 of the TEC does not oblige the institutions to carry out a classification of their documents within the framework of public access and that the Commission proposal does not envisage such a possibility, the Parliament report project provides for an approach by classification according to the following mechanism:

If an institution wants to restrict access to a document, it should classify the document at the moment it is produced or received and, at the latest, when it is entered into the public register. Carrying out this classification subsequently does not carry limitations of access to the document unless there are exceptional circumstances.

The classification must refer to the exception which is put forward.

When the conditions for the application of an exception are not valid for longer than a certain period, the classification is consequently limited in time.

In the case of a request for disclosure, the institution must decide whether the reason for refusal which is put forward (included in the list of exceptions) continues to be applied. In any case, all classifications which are not limited in time are periodically re-examined.

1.1 Is it necessary to follow the approach suggested by Parliament (obligatory classification to restrict access) or is it necessary, on the other hand, to consider the classification of a document as being an indicative, but not decisive, element in the examination of a request for access?

1.2 Is it necessary to consider that only the author of the classification should be entitled to authorise access to a classified document regardless of its level of classification?

2) Documents requiring "special treatment"

The Commission proposal affects all documents held by the three institutions concerned, including those issued by third parties, without distinguishing them from certain documents which may require, by their very nature, a particular protection (for example documents in the field of ESDP covered by the Council decision on 14 August 2000).

The Parliament report, in accordance with the recommended approach by classification, envisages the adoption by the three institutions, within a year, of a series of common agreements, particularly with regards:
- the treatment and protection of classified documents, including very confidential documents;
- the allocation of security classifications ("very secret", "secret", "confidential" or "restricted circulation") in the cases in which limitations of access within an institution or between institutions are justified;
- the transmission of classified documents between institutions.

Moreover, the report provides for the examination of all documents to which the public cannot have access, through the expedient of regular information provided to a Parliament body which must be created in accordance with an interinstitutional agreement based on procedures concerning the provision of confidential information to a restricted committee of the European Parliament according to the sensitivity of documents.

The discussions within the Group have made the need for special treatment of certain documents containing sensitive information apparent.

2.1 Is the approach of the Parliament, [which is] in favour of arrangements between institutions, conceivable?

2.2 Is it necessary to make provisions for specific treatment of certain documents, thereby deferring to particular measures which will be provided for by each of the institutions in their implementation instruments?

Such measures could refer to particular procedures regarding the treatment of requests and of possible appeals, particularly with regards the accreditation of people in a position to gain knowledge of the document in question.[Statewatch note: accreditation implies at least the agreement of the Council or Commission to the MEPs appointed by the European Parliament or possibly vetting]

2.3 Would the document requiring a special treatment be listed in a public register, and under what forms?

We should recall that, as far as the Council (the only community institution with a public register of documents) is concerned, the regime which is in force excludes references to documents classified "Top Secret", "Secret" and "Confidential" in the field of ESDP [European Security and Defence Policy]. The rest of the documents, even when they are classified, must be listed on the register; nevertheless, it is possible not to refer to the subject of a document if the disclosure of this information would undermine certain interests.

3) Application to member States

The Commission proposal does not aim to modify national legislation [which is] applicable in the field of access to documents. However, the Commission indicates in its proposal that, in accordance with the principle of loyalty governing relations between between community institutions and member States, the latter will have to ensure that they do not undermine the proper implementation of the regulation. For its part, the Parliament report contains the following measures:

The present regulation will not undermine the right of member States to grant access to documents, in accordance with their national legislation.

When a member State receives a request relating to a document which an institution considers as being classified and which can be disclosed in accordance with the member States' legislation, it will immediately inform the institution.

The decision to disclose the whole or part of a document is the member State's responsibility.

The member States and institutions cooperate in communicating information to citizens.

3.1 Will it be necessary to consider that the regulation will not come into effect when a request for access is addressed to a member State which holds the document in question?

Such an interpretation would lead to limiting the scope of the regulation only to institutions, as its effects would not be applicable to member States.

3.2 Will it be possible to consider, on the other hand, that only the documents of which the member State in question is the author will be examined in the light of national legislation and that other requests will be referred to the institution in question or that the reply should be provided in agreement with this institution?

4) Third party documents

The Commission proposal includes documents produced by third parties. According to the Commission, access to a document produced by a third party will not be granted if the document is covered by the exceptions regime. In case there is any doubt, the institution will consult the third party which is the author of the document while it reserves, in the absence of a reply, responsibility for the final decision with regards access to said documents. The Parliament report, for its part, provides for the following measures concerning documents received from member States or third parties:

A member State or third party which passes on a document to an institution specifies whether the document must not be disclosed and, if this is the case, points out which passages are concerned.

A third party must refer to the relevant exceptions (included in the list of exceptions) and indicate whether the classification has a time limit.

The member State or third party can submit a "public" version which the institution has the right to disclose.

The institution is responsible for the decision to disclose the whole or part of the document concerned, in application of the principles that will have to be approved within the framework of an interinstitutional agreement.

If the institution decides, contrary to the opinion of the member State or third party, that the document must be disclosed, it immediately informs the third party or member State of the reasons for disclosure, of the date in which the information will be disclosed (with a minimum delay of a week from the notification) and of the third party's right to ask the Court of Justice of the European Communities to apply provisional measures.

4.1 Is it necessary to follow the Parliament's approach insofar as documents received from member States or third parties are concerned, or is it necessary to introduce the principle of previous agreement by the third party and member States?

It is advisable to recall the content of declaration 35 annexed to the Amsterdam Treaty, in accordance with which the instrument under discussion will have to allow a member State to "ask the Commission or Council not to pass on a document produced by this State to third documents without its previous agreement".

NOTE: text in bold is the Council's summary of the European Parliament's position.



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