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Working document: Consolidated version of decision 93/731 TEC with the proposed modifications

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14 July 2000

(Original in French; Statewatch translation with apologies for any errors. The bold text indicates the changes from the current Council decision (20.12.93) on public access to Council documents)

12 July 2000

Working document

Consolidated version of decision 93/731 TEC with the proposed modifications

First Article

1. Public access to Council documents, except for documents which are classified as TRES SECRET/TOP SECRET and SECRET in accordance (with regulations on security adopted by Council decision n. ..../2000 of ....) (with decision n. 24/95 of the General Secretariat of the Council on 30 January 1995 relating to protection measures for classified information applicable to the General Secretariat of the Council, as modified by decision n. .../00 of the Secretary General of the Council on .....) relating to questions of security and defence of the Union or of one or more of its member states or for the military and non-military management of crises under the conditions provided for in the present decision.

[Statewatch note this replaces: 1.The public shall have access to Council documents under the conditions laid down in this Decision].

2."Council document" means any written text, whatever its medium, containing existing data and held by the Council, subject to Article 2 (2).

Article 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.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.

3. Every Council document relating to questions of security and defence of the Union or of one or more of its member States or the military and non-military management of crises and which allows to draw conclusions on the content of classified documents issued by one of the authors affected by paragraph 2 cannot be made available to the public without prior written agreement by the author of these informations and in accordance with article 8, paragraph 2, of the present decision.

Article 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.

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.

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.

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, the security and defence of the Union or one or more of its Member States, military and non-military crisis management, 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 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. The Committee of permanent representatives shall take the necessary measures to ensure that the preparation of the Council decisions on the subject may be confided to people authorised to gain knowledge of the documents in question.*

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

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 subject to paragraph 6 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.
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.
3. Subject to paragraph 6, 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 195 and 230 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.
4. Failure to reply within a month of submission of the confirmatory application shall be equivalent to a refusal.
5. In particular cases, the General Secretariat can, having previously informed the applicant, extend the period indicated in paragraph 1 and paragraph 3 by one month.
6. When dealing with a document relating to questions of security and defence of the Union or of one or more of its member States or of the military and non-military management of crises which is classified as TRES SECRET/TOP SECRET or SECRET, the applicant is informed that this document does not fall under the field of application of the present decision.

When such a document is classified CONFIDENTIAL or RESTRICTED the explanation is limited to the information that it is a document classified under one of the fields envisaged above and that the classification which it has been given by the competent authorities is always justified.

When access to a document is refused in application of article 2, paragraph 3, the applicant is informed of this.

Article 8

This Decision shall apply with due regard for provisions governing the protection of classified information (and particularly of security regulations adopted by the Council decision n. .../2000 of ...........).

The public cannot be given access to any classified document. If the General Secretariat or the Council decides, in application of the present decision, to give a positive reply to a request for access to a classified document, the document in question cannot be made available to the applicant before it has been declassified by the competent authorities.

Article 9

In 1996, and every two years after that, the Secretary-General will present a report on the implementation of the present decision.

Article 10

This Decision shall take effect on the day of its publication in the Official Journal of the European Communities.

* EXPLANATORY NOTE

By virtue of this measure, COREPER will adopt regulations relating to the procedures which must be followed for the examination of confirmatory applications, in accordance with the following:

1. Subject to measures in the following paragraphs, the Information Group is competent to examine confirmatory applications and the preparation of the work of COREPER and the Council for what concerns general questions of access to documents. On instructions from COREPER, it checks on the coherence of Council practices in the field of access to documents.
2. Confirmatory applications relating to documents classified as CONFIDENTIAL or RESTRICTED relating to questions of security and defence of the Union or of one or more of its member States or military and non-military management of crises are examined by the group/committee from which the document in question was issued or by which this document has been considered (thus, as the case may be, the political and internal security Committee, the political/military working party, the internal military Committee and the internal military Group).
3. When dealing with a document which is not accessible to all the delegates within the authority in question, the confirmatory application is examined exclusively by the person(s) authorised to have access to this document.