Our code: model code of access to EU documents for civil society
This is based on the existing rights of citizens under the 1993 Decision (20.12.93) on public access to documents as improved by:
i) cases taken to the Court of First Instance and to the European Ombudsman;
ii) current "best practice" in the operation of the code by the institutions;
iii) proposals that have emerged in the current draft positions of the institutions which would improve access.
Our code: establishing the principles of access to EU documents
The main principles established by this "code for civil society" would be:
1. Individuals and groups outside the EU could also apply for documents. It is important that those effected by EU policies and practices - for example, those in third world countries - can get access to documents (Article 1).
2. The measure would apply to all documents (whatever their form, eg: e-mails) held by an institution including those from third parties (Article 2 and 3). Member States of the EU, who comprise the Council of the European Union, would not, logically, be "third parties".
3. If an applicant is not sure what to ask for or where to find a document the institutions would be obliged to assist them (Article 3A.2.).
4. All documents, including those from "third parties", would be accessible subject only to the "exceptions" laid down in Article 4.
5. The use of the "exceptions" in Article 4 could only be used where it would significantly under the protection of the public interest.
6. All institutions would be required to appoint an Information Officer and staff to handle applications for documents (Article 5.5.).
7. All requests for documents would be replied to within two weeks (not a month as at present).
8. Documents would be supplied in the language requested by the applicant if available and in alternative formats such as Braille, large print or tape (Article 7).
9. Where parts of a document are covered by the "exceptions" in Article 4 the remaining parts of the document shall be released (Article 7).
10. All documents produced by public bodies (ie. governments and their officials) may be reproduced (Article 8) as a positive right.
11. All institutions would have to provide public register on the internet with the full text of all documents held subject only to the "exceptions" in Article 4.
12. The measure, being a Decision not a Regulation, would not affect freedom of information legislation at national level.
A code of access to documents for civil society
General principles and beneficiaries
1. Any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents and to documents of any agencies or bodies created by them or on which they are represented, subject to the principles, limits and conditions defined in the Decision.
2. The institutions may under the same conditions grant access to documents to any natural or legal person not residing or not having its registered office in a Member State.
Justification Article 1(1) provides that all EU citizens and EU residents have the right to access to documents, as set out in Article 255 of the EC Treaty. However, since the EU's trade, development, foreign, military, immigration, asylum and human rights policies obviously have a huge effect on citizens of third countries living outside the EU, Article 1(2) goes further and provides that the EU institutions may extend the right to such people.
This Decision shall apply to all documents held by an institution or agency or body, that is to say, documents drawn up by it or the Member States or received from third parties and in its possession, in all areas of activity of the Union.
Justification It is essential to extend the existing code of access, as the Commission has proposed, to all incoming documents received by the EU institutions, since those documents form part of the EU decision-making process. The interests of the persons or companies producing those documents would still be taken into account by Article 4.
For the purpose of this Decision
(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).
Justification 'Document' should be defined broadly, as in the existing code of access. There is no justification for any change in the definition of 'document', least of all the huge restriction in the definition as proposed by the Commission. The very concept of access to documents requires that all documents should be covered subject to specified exceptions for specific reasons of public interest. Excluding drafts and discussion documents simply because they are not final, as the Commission has suggested, would exclude the public from knowing what the EU institutions are doing in their name. It is illogical to argue that the EU institutions must have 'space to think' free from public scrutiny, for the Protocol on Subsidiarity and Proportionality attached to the EC Treaty expressly states that there must be extensive public involvement throughout the EC legislative process. Why provide that Green Papers, White Papers and Communications must be published for public comment, but that the public is not ever entitled to see the drafts of legislative proposals which follow?
(b) "third party" shall mean any natural or legal person, or any entity other than the institution and the Member States, including non-Community institutions and bodies and non-member states.
Justification Article 3(b) provides that Member States are on the same footing as EU institutions. This is because Member States play a major role in EU decision-making, suggesting proposals in the areas of foreign and defence policy, police and criminal law, and immigration and asylum, and (as the Council Presidency) submitting redrafts of Commission proposals in all other areas of EU activity. Also, Member States send information to the EU institutions concerning development and implementation of EU policy.
1. The institutions may refuse access to documents or part thereof where disclosure could significantly undermine the protection of:
a) public interest as regards:
- public security;
- international relations;
- the financial, monetary or economic policy of the Community or of the Member States;
- court proceedings;
- inspections and investigations.
b) privacy and the integrity of the individual as protected in particular by Community legislation regarding the protection of personal data.
c) economic interests of a natural or legal person concerning in particular:
- business and commercial secrets;
- intellectual and industrial property;
- information on costs and tenders in connection with award procedures before these procedures are completed.
Provided that the interests invoked outweigh the interest of the citizen in obtaining access.
Justification (1) The 'exceptions' clause is based on the current exceptions in the code concerning public interest or private interest. There is no need for any addition to this list, and in fact it should be narrowed down in three ways. First, our code would not allow the EU institutions to plead their own interests in institutional secrecy as a reason for refusing access to documents. Given the high levels of public concern about and interest in EU activities, the institutions must act 'as openly as possible' according to Article 1 of the EU Treaty. So they should not be allowed to refuse access to documents simply because they wish to keep their discussions secret; the documents relating to such discussions should be open so that ministers and civil servants can be held accountable for their actions at EU level. Second, refusal of access should be limited to documents which could 'significantly undermine' the public and private interests listed in Article 4. This means that there must be a serious threat to those interests, not simply a minor effect.
Third, the list of interests justifying refusal should be exhaustive, so that no additional interests besides those listed can be pleaded. This is necessary because otherwise officials could constantly invent new reasons to refuse to disclose documents.
2. The institutions shall release documents from third parties from which the document originates subject to the same exceptions as set out in paragraph 1 and the same procedures set out in this Decision as regards documents drawn up by the institutions or the Member States. In the event of the refusal of access an applicant may make a confirmatory application to the institution concerned which shall make the final decision. If access is refused in a confirmatory application the applicants shall have the right under the Treaty to make a complaint to the European Ombudsman (TEC 195) or take a case to the Court of First Instance (TEC 230).
The rules concerning reasons to refuse documents produced by the institutions or Member States should apply equally to documents from third parties. This is because it would be inappropriate for the EU to let third parties have a veto over actions of its institutions, and because such a veto would allow third parties (for example, businesses breaking EU environmental or safety rules) to escape public scrutiny of their actions.
1. 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.
Justification All EU languages must be placed on an equal footing as regards access to documents.
2. If an application is not sufficiently precise the institutions shall ask the applicant to clarify the application and assist the applicant in doing so, e.g. by providing the applicant with information on the structure of the institution and on the use of the public registers of documents established in accordance with Article 10.
If the applicant is unclear about which documents he or she has requested, this is probably because it is so hard to find out which documents on a given subject are actually held by the EU institutions. Therefore there should be a positive obligation upon the institutions to help the applicant in such situations.
3. In the event of repeat applications, the institutions concerned may confer with the applicant informally, with a view to finding a fair solution.
Justification It is necessary to include a clause dealing with 'repeat' applications, where one person might request the same document again and again. But there is no reason to apply any special rule to applicants making multiple requests for different documents, as the Commission has suggested. Applicants who apply for large numbers of documents are simply doing their jobs as journalists, NGOs or researchers interested in a particular topic or as companies looking after their private interests.
Processing of initial applications
1. Applications for access to documents shall be handled promptly. In any case, within two weeks from registration of the application, the institution shall either grant the applicant access to all the documents applied for or, in a written reply, inform the applicant of the reasons for the total or partial refusal and of their right to make a confirmatory application in accordance with paragraph 2.
2. In the event of a total or partial refusal, the applicant may, within one month from receiving the institution's reply, make a confirmatory application asking the institution to reconsider its position.
3. In exceptional cases the two week time-limit provided for in paragraph 2 may be extended by two weeks, provided 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.
5. Each institution shall appoint an Information Officer and staff to handle all initial and confirmatory applications.
It is necessary to reduce the time for dealing with applications from one month to two weeks, given the pace of the legislative process and the importance of timely public scrutiny of EU activities. Also, at present the possibility of extra time to reply is frequently abused by the EU institutions, and so needs to be more precisely controlled.
Processing of confirmatory applications
1. A confirmatory application shall be handled promptly. In any case, within one month from registration of such application, the institution shall either grant access to the documents requested or, in a written reply, state the reasons for total or partial refusal. Should the institution deny access in total or in part it shall inform the applicant of the remedies open to them, namely instituting court proceedings against the institution and/or making a complaint to 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.
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.
3. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to refer the matter to the Ombudsman and/or to the Court of Justice, under the relevant provisions of the Treaties.
As with initial applications, the potential abuse of the possibility of extra time to reply must be controlled.
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, according to their preference. The cost of their doing so may be charged to the applicant.
2. Documents shall be supplied in the language version requested by the applicant, or in the language of the application, provided that language version is available.
3. Documents shall be supplied in the form requested by the applicant if they are or can be made available in that form, e.g. electronically or in an alternative format, such as Braille, large print or tape.
4. If only parts of the requested document are covered by any of the exceptions in Article 4, the remaining parts of the document shall be released.
It is appropriate to specify precisely that applicants should have access in the format and language of their choosing, and to confirm the constant case law of the Court of First Instance that a document must be released in part if fully releasing it would violate one of the interests protected by the transparency rules.
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 industrial property laws, applied with due regard for publication of information in the public interest.
This Article should recognise expressly that documents produced by public entities with taxpayers' money are in the public domain, and so can be reproduced provided that the source is duly credited. However, documents produced by private entities might be protected by intellectual property law, but in such cases there might be a public interest justification for publication.
Information and registers
1. Each institution shall provide access to a register of documents on the Internet. The text of all documents shall be attached to their listing in the register, unless they are subject to the exceptions set out in Article 4.1. In accordance with Article 8.5, if only part of a document is subject to such exceptions, the remaining text of the document shall be attached to its listing in the register. Applicants may lodge applications for the release of any excluded document, or partial document, and have the rights set out in Article 6 if access is refused.
2. The institutions shall submit an annual report to their respective bodies (eg: to the Council of Ministers, to the plenary session of the European Parliament, to the full Commission) followed by its publication.
The EU rules on transparency should expressly require full registers of all documents to be set up, with the text of all documents attached to such registers, unless the documents are subject to the exceptions in the rules in whole or in part. But the failure to attach a document to the register, on the grounds that such exceptions apply, should not preclude applicants from applying for those documents and arguing that the exceptions have been applied wrongly in a particular case.
Each institution shall adopt in its Rules of Procedure the provisions required to give effect to this Decision. Those provisions shall take effect on...
Justification This proposal is in the form of a Decision, not a Regulation, because it is not intended to alter the laws of the Member States on access to documents. Each Member State should be free to grant or refuse access to EU documents which it holds, according to its own rules. This is in accordance with the principle of subsidiarity and with the wording of Article 255 the EC Treaty, which only gives the Community power to adopt rules concerning the functioning of its own institutions, not to amend the laws and constitutions of its Member States.
Entry into force
This Decision shall enter into force...
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