28 March 2012
Documents: Do Proposed EU Rules Lower Current Standards?
Analysis by Steve Peers, Reader in Law, Human Rights Centre, University of Essex. 16 April 2001
This report analyses in turn whether and to what extent the proposed Regulation on access to documents held by the Community institutions, in the version sent by the EP rapporteur with a request for commentary, would reduce the extent of the right of access to documents guaranteed by the current rules and practice of the Council and Commission, as clarified by judgments of the Court of Justice and Court of First Instance and rulings by the EU Ombudsman.
The assessment takes as a starting point for 'current standards' the 1993 and 1994 Decisions of the Council and Commission, the former as supplemented 1998 and 1999 by further Council Decisions. It does not take into account the so-called 'Solana Decision' of summer 2000, which amended the Council rules to make them more restrictive and which is under challenge in two separate cases before the Court of Justice. Nor does it take into account the March 2001 amendment to the rules adopted by the Council.
The following analysis makes recommendations as to what changes to the version being considered need to be made to conform to current standards. This does not prejudge the issue of what further desirable changes to these texts should be made to improve upon the present rules (as set out in the accompanying Position).
a) Articles 2(5), 4(7), 6a: sensitive documents
The current rules do not contain any concept of 'sensitive documents' which should receive separate procedural treatment. Therefore any introduction of such a principle into the Regulation inevitably represents a retrogression from existing rules. This is particularly true as regards no fewer than five provisions of Article 6a.
First, Article 6a(1) allows each institution's internal security rules, not the rules on access to documents, to determine how the access rules apply. This gives priority to security rules over access rules, a clear conflict with current standards. Furthermore, the definition in Article 6a(1) is substantially wider than the definition in the Solana Decision, which the EP has challenged, so in that respect would represent a drop in standards even as compared to the Solana Decision.
Secondly, Article 6a(3) allows a request for a document to be rejected until that document has been declassified. This is a manifest regression from the current rules, which refer only to the content of a document as grounds for refusing its release, not its status under the internal rules of one of the institutions.
Thirdly, Article 6a(2) allows certain officials to determine whether references to 'sensitive' documents will appear on the register of documents; this contradicts the Council decision of 1999 on this issue.
Fourthly, Article 6a(4) allows the originator of a 'sensitive document' to veto its release or registration. This represents a substantial retrogression from the current rules, which do not give the originator of a document carte blanche to veto its release unless it can justify its position under the specific exceptions provided for in the rules; moreover, as pointed out above, the Council Decision of 1999 requires all documents to appear on the register. The current rules do allow the originator of information to veto its release, but that is a narrower principle than that of allowing the originator to veto documents.
Finally, Article 6a(6) places obligations on the Member States; as explained at point (e) below, the current rules place no obligations upon Member States at all.
To conform to current standards: Articles 2(5) and 6a should be deleted and the references to 'sensitive documents' should be deleted from Article 4(7).
b) Article 3(b): definition of 'third party' and Member States
The issue of whether Member States constitute third parties under the current rules, given their involvement with EU decision-making and their obligations to implement EU law, is still open. It has been disputed before the Court of First Instance in pending cases T-111/00 BAT v. Commission and T-36/00 Elder v. Commission, recently heard by that Court. So it is arguable that defining Member States as third parties would reduce current standards. This is particularly true as regards the Member State holding the Council Presidency, since Member States holding the Presidency have explicit duties as a formal part of that institution. It follows that defining Member States as 'third parties' is highly likely to represent a regression from current standards.
To conform to current standards: Article 3(b) must be amended
as follows: the words, '
excluding the Member States but
including the Community or non-Community institutions or bodies
should replace the words 'including the Member States'. Article
4(4) must also be deleted as a consequence.
c) Article 4(2), second indent: 'legal advice' exception
This text appears to transpose the judgment in T-610/97 R Carlsen v. Council  ECR II-485. However, this ruling was an 'interim measures' ruling on the issue of whether documents should be released pending a full hearing of the case. As such it is not a full precedent on the issue of whether documents containing legal advice could be excluded on the basis of the current rules. Since the current rules do not contain any explicit exception for 'legal advice', the Carlsen ruling was based on the assumption that the list of grounds for which documents could be refused were non-exhaustive. This appears to contradict the clear wording of the current rules and the constant case law of the Court of First Instance since Case T-105/95 WWF v. Commission  ECR II-313, now confirmed by the Court of Justice (Joined Cases C-174/98 P and C-189/98 P  ECR I-1) that the exceptions to the access to document rules must be interpreted and applied strictly. For these reasons, it is strongly arguable that the current rules do not recognise a 'legal advice' exception.
To conform to current standards: the words, 'and legal advice' should be deleted from the second indent of Article 4(2).
d) Article 4(3): Discretionary exception
The wording of the proposed text is tilted in favour of the institutions; this conflicts with case law applying the current rules which requires a detailed examination of the balance between the public interest in release and the institution's interest in confidentiality (see particularly Case T-194/94 Carvel v. Council).
To conform to current standards: the reference to overriding public interest should be replaced in both indents by the following words: 'after considering in regard to each individual document the balance of interest between the institution's interest and the public interest in release of the document'.
e) Article 4a: Member States
The current rules do not expressly affect Member States' legal and constitutional rules as regards access to documents. Any change in this situation, to impose requirements on Member States that would limit their national rules on access to documents, would therefore undoubtedly constitute a regression from current standards.
To conform to current standards: Article 4a has to be deleted in its entirety. The same point could be made in regards to Article 6a(6), but the whole of Article 6a should be deleted in any event (see point (a) above).
f) Articles 5(3) and 5a(3): 'very large number of documents'
The current rules have no exception for 'a very large number of documents'.
To conform to current standards: the phrase should be deleted in both Articles 5(3) and 5a(3).
g) Article 9a(2): direct access to documents on the register
The current Council practice is to make all documents available once there has been a successful application for their release. This should be confirmed in this paragraph, because otherwise this issue would be left to the discretion of the institutions according to Article 9a(3).
To conform to current standards: add the words 'as shall other documents once they have been released pursuant to the provisions of this Regulation' at the end of this paragraph.
h) Article 9e: reproduction
The wording is wider than found in the current rules.
To conform to current standards: replace wording with the
current wording of the Commission and Council Decisions.
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