Statewatch analytical observatory: Comparison of the positions of the Commission, Council and the European Parliament on the new code of access and with the existing 1993 Decision (prior to the "Solana Decision" in July 2000)



This analytical observatory compares the position taken by the Council and the European Parliament on the Commission's proposal.

The Council's draft common position of 18 August (SN 2970/3/00) is included, this will be updated with the adopted common position of the Council after the General Affairs Council on 20 November. See analysis of Council's draft position and the position of Member States: Draft Common position

The European Parliament's first reading position will adopted at its plenary session 13-17 November in Strasbourg. The emerging position of the main committee, the Committee on Freedoms and Rights, will be added after its meeting on 23 October in Strasbourg.

Conclusion: This analysis shows that the Commission's proposal and the Council's draft Common Position would give less access to documents than at present. This is entirely against the intent and spirit of Article 255 of the Amsterdam Treaty.

Commission's proposal Council's draft position (deletions in italics and square brackets [], additions in bold) EP draft position

Article 1
General principle and beneficiaries

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to the widest possible access to the documents of the institutions within the meaning of this Regulation, without having to cite reasons for their interest, subject to the exceptions laid down in Article 4.

Article 1
General principle and beneficiaries

Any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, shall have [the] a right of [to the widest possible] access to the documents of the institutions within the meaning of this Regulation, without having to cite reasons for their interest, subject to the [exceptions laid down in Article 4]. principles and the limits defined in the present Regulation.

Comment: This Article is new and the Commission's version reflects Article 255 of the Amsterdam Treaty. Neither the Commission or Council would allow non-EU people/organisations the right of access to documents. The Council version even deletes "widest possible" from the intent.

Outcome: The commitment to access to documents is meaningless unless reflected in the detail, which it is not.

Commission's proposal Council's draft position (deletions in square brackets [], additions in bold) EP draft position

Article 2
Scope

1. This Regulation shall apply to all documents held by the institutions, that is to say, documents drawn up by them or received from third parties and in their possession.

Access to documents from third parties shall be limited to those sent to the institution after the date on which this Regulation becomes applicable.

2. This Regulation shall not apply to documents already published or accessible to the public by other means. It shall not apply where specific rules on access to documents exist.

Article 2
Scope

1. This Regulation shall apply to all documents held by the institutions , that is to say, documents drawn up by them or received from third parties and in their possession.

[Access to documents from third parties shall be limited to those sent to the institution after the date on which this Regulation becomes applicable.

2. This Regulation shall not apply to documents already published or accessible to the public by other means.

It shall not apply where specific rules on access to documents exist.
]

1993 Decision, existing code of access (prior to the Solana Decision):
Article 1:
1.1 The public shall have access to Council documents under the conditions laid down in this Decision.

Comment: Commission and Council agree. This general statement is completely undermined by later provisions. The Council's deletion of the provision that the Regulation will not apply to documents "already published or accessible" is simply reinserted by the Council in Article 7. At the moment the Commission will often try and refuse access to a document because it has appeared in the Official Journal which, for example, in the case of the Schengen acquis would cost the applicant nearly £50.00.

Outcome: Potentially worse than under the present code of access

Commission's proposal Council's draft position (deletions in square brackets [], additions in bold) EP draft position

Article 3
Definitions

For the purposes of this Regulation:

(a) "document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); only administrative documents shall be covered, namely documents concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, excluding texts for internal use such as discussion documents, opinions of departments, and excluding informal messages;

(b) "institutions" shall mean the European Parliament, the Council and the Commission;

(c) "European Parliament" shall mean Parliament bodies (and in particular the Bureau and the Conference of Presidents), Parliamentary Committees, the political groups and departments;

(d) "Council" shall mean the various configurations and bodies of the Council (and in particular the Permanent Representatives Committee and the working parties), the departments and the committees set up by the Treaty or by the legislator to assist the Council;

(e) "Commission" shall mean the Members of the Commission as a body, the individual Members and their private offices, the Directorates-General and departments, the representations and delegations, committees set up by the Commission and committees set up to help it exercise its executive powers;

(f) "third party" shall mean any natural or legal person, or any entity outside the institution, including the Member States, other Community and non-Community institutions and bodies and non-member countries.

A list of the committees referred to in points (d) and (e) of the first paragraph shall be drawn up as part of the rules giving effect to this Regulation, as provided for in Article 10.

Article 3
Definitions

For the purposes of this Regulation:

(a) "document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); [only administrative documents shall be covered, namely documents] concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, [excluding texts for internal use such as discussion documents, opinions of departments, and] excluding [informal messages]:

- informal messages;

- contents which express opinions or reflect discussions and the provision of advice as part of preliminary consultations and deliberations within the institutions;

(b) "institutions" shall mean the European Parliament, the Council and the Commission;

(c) "European Parliament" shall mean Parliamentary bodies ([and] in particular the Bureau and the Conference of Presidents), Parliamentary Committees, the political groups and departments;

(d) "Council" shall mean the various [configurations] formations [and bodies] of the Council, its preparatory bodies and its General Secretariat [(and in particular the Permanent Representatives Committee and the working parties), the departments and the committees set up by the Treaty or by the legislator to assist the Council;]

"Commission" shall mean the Members of the Commission as a body, the individual Members and their private offices, the Directorates-General and departments, the representations and delegations, committees set up by the Commission and committees set up to help it exercise its executive powers;

"third party" shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community and non-Community institutions and bodies and non-member countries.

[A list of the committees referred to in points (d) and (e) of the first paragraph shall be drawn up as part of the rules giving effect to this Regulation, as provided for in Article 10.]


1993 Decision, existing code of access:
Article 1.2:"Council document" means any written text, whatever its medium, containing existing data
and held by the Council, subject to Article 2 (2).

Comment: Commission and Council agree. In particular on the need to create the so-called "space to think" for officials - the wording is different the intent the same.

Outcome: Worse than the existing code of access

Commission's proposal Council's draft position (deletions in square brackets [], additions in bold) EP draft position

Article 4
Exceptions

The institutions shall refuse access to documents where disclosure could significantly undermine the protection of:

(a) the public interest and in particular:

- public security,

- defence and international relations,

- relations between and/or with the Member States or Community or non-Community institutions,

- financial or economic interests,

- monetary stability,

- the stability of the Community's legal order,

- court proceedings,

- inspections, investigations and audits,

- infringement proceedings, including the preparatory stages thereof,

- the effective functioning of the institutions;

(b) privacy and the individual, and in particular:

- personnel files,

- information, opinions and assessments given in confidence with a view to recruitments or appointments,

- an individual's personal details or documents containing information such as medical secrets which, if disclosed, might constitute an infringement of privacy or facilitate such an infringement;

(c) commercial and industrial secrecy or the economic interests of a specific natural or legal person and in particular:

- business and commercial secrets,

- intellectual and industrial property,

- industrial, financial, banking and commercial information, including information relating to business relations or contracts

- information on costs and tenders following award procedures;

d) confidentiality as requested by the third party that supplied the document or the information or as required by the legislation of the Member State.

Article 4
Exceptions

1. The institutions shall refuse access to document where disclosure could [significantly] undermine the protection of:

(a) the public interest [and in particular]: as regards:

- public security,

- defence and [international relations] military matters,

- international relations,

- relations between and/or with the Member States or Community or non-Community institutions,

- financial or economic interests,

- monetary stability;

- the stability of the Community's legal order,

- court proceedings,

- inspections, investigations and audits,

- infringement proceedings, including the preparatory stages thereof;

- [the effective functioning of the institutions;]

(b) privacy and the individual, [and] in particular:

- personnel files ,

- information, opinions and assessments given in confidence with a view to [the career of an official or other staff member, notably relating to] recruitments or appointments,

[- an individual's personal details or documents containing information such as medical secrets which, if disclosed, might constitute an infringement of privacy or facilitate such an infringement;]

- personal data as defined by Community legislation in this field;

(c) [commercial and industrial secrecy or] the economic interests of a [specific] natural or legal person, and in particular:

- business and commercial secrets,

- intellectual and industrial property,

- industrial, financial, banking and commercial information, including information relating to business relations or contracts,

- information on costs and tenders in connection with award procedures

2. Access to a document may be denied if its disclosure could undermine the effectiveness of the institutions' decision-making process.

[(d) confidentiality as requested by the third party having supplied the document or the information, or as required by the legislation of the Member State.]

3. The institutions shall not release a document if the Member State or the other third party from which the document originates has requested the institutions not to disclose it without its prior agreement.

In case of a request for a document sent to an institution before the entry into force of this Regulation, the institution concerned shall request the prior agreement of the third party having supplied it.

1993 Decision, existing code of access
Article 4
1. Access to a Council document shall not be granted where its disclosure could undermine:
- the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),
- the protection of the individual and of privacy,
- the protection of commercial and industrial secrecy,
- the protection of the Community's financial interests,
- the protection of confidentiality as requested by the natural or legal person who supplied any of the information contained in the document or as required by the legislation of the Member State which supplied any of that information.
2. Access to a Council document may be refused in order to protect the confidentiality of the Council's proceedings.
Article 8
This Decision shall apply with due regard for provisions governing the protection of classified information.

Comment: Commission and Council agree that the list of exceptions (grounds for refusing access) should be extended and that "third parties" should have the right to veto access to documents in the EU. The Council proposal significantly worse where it removes the word "signifcantly" from the general grounds of the exceptions - access could therefore be refused simply where it would "undermine". The Council version is an improvement on the Commission where it makes the exception on "the effectiveness of the institutions' decision-making process" discretionary rather than mandatory, and is narrower (covering "decision-making" not "functions").

Outcome: Worse than the existing code of access

Commission's proposal Council's draft position (deletions in square brackets [], additions in bold) EP draft position

Article 5
Processing of initial applications

1. All applications for access to a document shall be made in writing in a sufficiently precise manner to enable the institution to identify the document. The institution concerned may ask the applicant for further details regarding the application.

In the event of repetitive applications and/or applications relating to very large documents, the institution concerned shall confer with the applicant informally, with a view to finding a fair solution.

2. Within one month of registration of the application, the institution shall inform the applicant, in a written and reasoned reply, of the outcome of the application.

3. Where the institution gives a negative reply to the applicant, it shall inform him that, within one month of receiving the reply, he is entitled to make a confirmatory application asking the institution to reconsider its position, failing which he shall be deemed to have withdrawn the original application.

4. In exceptional cases, the one-month time-limit provided for in paragraph 2 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.

Failure to reply within the prescribed time-limit shall be treated as a negative response.

Article 5
Processing of initial applications

[1. All applications for access to a document shall be made in writing in a sufficiently precise manner to enable the institution to identify the document. The institution concerned may ask the applicant for further details regarding the application.] [moved to Article 3 A, see below]

[In the event of repetitive applications and/or applications relating to very large documents, the institutions concerned shall confer with the applicant informally, with a view to finding a fair solution.] [moved to Article 3 A, see below]

1. Within one month of registration of the application, the institution shall inform the applicant, in a written and reasoned reply, of the outcome of the application.

2. Where the institution gives a negative reply to the applicant, it shall inform him that, within one month of receiving the reply, he is entitled to make a confirmatory application asking the institution to reconsider its position, failing which he shall be deemed to have withdrawn the original application.

3. In exceptional cases, the one-month time-limit provided for in paragraph 2 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.

4. Failure to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application [be treated as a negative response].

New Article 3A
Applications

3A.1. All applications for access to a document shall be made in writing in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document with a reasonable administrative effort. The institution concerned may ask the applicant for further details regarding the application. [ex Article 5(1)]

3A.2. In the event of repetitive applications and/or applications relating to very large documents or a very large number of documents, the institution concerned [shall] may confer with the applicant informally, with a view to finding a fair solution.[ex Article 5(1)]

1993 Decision, existing code of access:
Article 2
2.1. An application for access to a Council document shall be sent in writing to the Council. It must be made in a sufficiently precise manner and must contain information enabling the document or documents requested to be identified. Where necessary, the applicant shall be asked for further details.
2.2.Where the requested document was written by a natural or legal person, a Member State, another Community institution or body, or any other national or international body, the application must not be sent to the Council, but direct to the author.
Article 3
3.2.The relevant departments of the General Secretariat shall endeavour to find a fair solution to deal with repeat applications and/or those which relate to very large documents.
Article 5
The Secretary-General shall reply on behalf of the Council to applications for access to Council documents, except in the cases referred to in Article 7 (3), in which the reply shall come from the Council.
Article 6
Any application for access to a Council document shall be examined by the relevant departments of the General Secretariat, which shall suggest what action is to be taken on it.
Article 7
7.1. The applicant shall be informed in writing within a month by the relevant departments of the General Secretariat either that his application has been approved or that the intention is to reject it. In the latter case the applicant shall also be informed of the reasons for this intention and that he has one month to make a confirmatory application for that position to be reconsidered, failing which he will be deemed to have withdrawn his original application.
7.2. Failure to reply to an application within a month of submission shall be equivalent to a refusal, except where the applicant makes a confirmatory application, as referred to above, within the following month.

Comment: Commission and Council agree broadly, especially over changing "repeat applications" to "repetitive applications" (the issue which Statewatch took to the European Ombudsman and won). However, the Council want to go further and give the institutions' discretion where there is a request for "a very large number of documents" - this is intended to frustrate diligent researchers.

Outcome: Worse than the existing code of access

Commission's proposal Council's draft position (deletions in square brackets [], additions in bold) EP draft position

Article 6
Processing of confirmatory applications; remedies

1. Where the applicant submits a confirmatory application, the institution shall reply to him in writing within one month of registration of the application. If the institution decides to maintain its refusal to grant access to the document requested, it shall state the grounds for its refusal and inform the applicant of the remedies open to him, namely court proceedings and a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively.

2. In exceptional cases, the time-limit provided for in paragraph 1 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.

Failure to reply within the prescribed time-limit shall be treated as a positive decision.

Article 6
Processing of confirmatory applications; remedies

2. Where the applicant submits a confirmatory application, the institution shall reply to him in writing within one month of registration of the application. If the institution decides to maintain its refusal to grant access to the document requested, it shall state the grounds for its refusal and inform the applicant of the remedies open to him, namely court proceedings and a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively, and in the relevant provisions of the Treaty on European Union.

3. In exceptional cases, the time-limit provided for in paragraph 1 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.

4. Failure by the institution to reply within the prescribed time-limit [shall be treated as a positive decision] shall entitle the applicant to refer the matter to the Ombudsman and/or the Court of Justice, under the relevant provisions of the Treaties.

1993 Decision, existing code of access:
Article 7
7.3. Any decision to reject a confirmatory application, which shall be taken within a month of submission of such application, shall state the grounds on which it is based. The applicant shall be notified of the decision in writing as soon as possible and at the same time informed of the content of Articles 138e and 173 of the Treaty establishing the European Community, relating respectively to the conditions for referral to the Ombudsman by natural persons and review by the Court of justice of the legality of Council acts.
7.4. Failure to reply within a month of submission of the confirmatory application shall be equivalent to a refusal.

Comment: Commission and Council agree, except on one of the few positive elements in the Commission proposal that failure to reply to a confirmatory application (an appeal against refusal of access) should be positive - the applicant would get the document - the Council want to delete this.

Outcome: No change from the existing practice

Commission's proposal Council's draft position (deletions in square brackets [], additions in bold) EP draft position

Article 7
Exercise of the right to access

1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy. The costs of his doing so may be charged to the applicant.

2. Documents shall be supplied in an existing language version, regard being had to the preference expressed by the applicant.

An edited version of the requested document shall be provided if part of the document is covered by any of the exceptions provided for in Article 4.

Article 7
Exercise of the right to access

1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy.

The costs of his doing so may be charged to the applicant.

If a document is already published and is easily accessible to the applicant, the institutions may inform him how to obtain it.

2.[Documents shall be supplied in an existing language version, regard being had to the preference expressed by the applicant.]

[An edited version] Parts of the requested document shall be provided [if part of the document] those parts is are not covered by any of the exceptions [provided for] in Article 4.

1993 Decision, existing code of access: Article 3
3.1.The applicant shall have access to a Council document either by consulting it on the spot or by having a copy sent at his own expense. The fee shall be set by the Secretary-General.

Comment: Commission and Council agree, except on the obligation to supply documents in the language preferred by the applicant - the Council want this deleted.

Outcome: No change from the existing code, but there should be

Commission's proposal Council's draft position EP draft position

Article 8
Reproduction for commercial purposes or other forms of economic exploitation

An applicant who has obtained a document may not reproduce it for commercial purposes or exploit it for any other economic purposes without the prior authorisation of the right-holder.

Article 8
Reproduction for commercial purposes or other forms of economic exploitation

An applicant who has obtained a document may not reproduce it for commercial purposes or exploit it for any other economic purposes without the prior authorisation of the right-holder.

1993 Decision, existing code of access
Article 3
3.3 Anyone given access to a Council document may not reproduce or circulate the document for commercial purposes through direct sale without prior authorisation from the Secretary General.

Comment: Commission and Council agree. This represents a major shift from the existing code of access by adding the term "or exploit for aany other economic purpose" and the concept of EU institutions as "right-holders".

Outcome: Worse than the existing code of access

Commission's proposal Council's draft position (deletions in square brackets [], additions in bold) EP draft position

Article 9
Information and registers

Each institution shall take the requisite measures to inform the public of the rights they enjoy as a result of this Regulation. Furthermore, to make it easier for citizens to exercise their rights arising from this Regulation, each institution shall provide access to a register of documents.

Article 9
Information and registers

Each institution shall take the requisite measures to inform the public of the rights they enjoy as a result of this Regulation. Furthermore, to make it easier for citizens to exercise their rights arising from this Regulation, each institution shall provide access to a register of documents.

Each institution shall make accessible to the public a list of the bodies and committees referred to in Article 3.

Comment: Commission and Council agree. The addition in the Council column on "list of bodies" is simply moved from Article 3.

Outcome: Better than the present situation

Commission's proposal Council's draft position EP draft position

Article 10
Effect

Each institution shall adopt in its rules of procedure the provisions required to give effect to this Regulation. Those provisions shall take effect on ... [three months after the adoption of this Regulation].


Article 10
Effect

Each institution shall adopt in its rules of procedure the provisions required to give effect to this Regulation. Those provisions shall take effect on … [three months after the adoption of this Regulation].

Commission's proposal Council's draft position EP draft position

Article 11
Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities. It shall be applicable from … [three months from the date of adoption of this Regulation].

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Article 11
Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities. It shall be applicable from … [three months from the date of adoption of this Regulation].

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Comment: Commission and Council agree.

Outcome: Worse than the present situation, the binding nature of a "Regulation" could restrict national laws on freedom of information


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