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COMMISSION OF THE EUROPEAN COMMUNITIES
COM(2000) yyy final
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
regarding public access to documents of the European Parliament, the Council and the Commission
(presented by the Commission)
The Amsterdam Treaty introduced a new Article 255 into the EC Treaty which grants the citizens and residents of the Union the right of access to the documents of the European Parliament, the Council and the Commission. The Treaty also included among the general principles of the Union the idea that decisions must be taken as openly as possible and as closely as possible to the citizens.
Under the terms of the new Article 255, it is for the Commission to prepare draft legislation on the general principles and limits governing the right of access to documents of the three institutions, which must be adopted under the codecision procedure within two years of the entry into force of the Amsterdam Treaty, i.e. before 1 May 2001. Each institution must also lay down specific provisions regarding access to its documents in its rules of procedure.
For over five years the Council and the Commission have been applying a joint code of conduct regarding public access to documents. The European Parliament adopted a similar system in July 1997.(1)
In drawing up this proposal for a Regulation, the Commission has given special consideration to:
- Member States' legislation on access to documents, in particular good practice in the Nordic countries, which have a long tradition of opening up their documents to the public;
- the report by the European Parliament's Committee on Institutional Affairs on openness within the European Union, adopted by Parliament at its plenary sitting on 12 January 1999 (rapporteur: Ms Lööw);
- the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Århus in June 1998;
- the special report from the European Ombudsman to the European Parliament following the own-initiative inquiry into public access to documents held by Community institutions and bodies;(2)
- the Green Paper on public sector information in the information society;(3)
- the positive experience acquired during the five years' operation of the system introduced voluntarily by the Council, the Commission and Parliament, as described in the Council and Commission reports on the implementation of their code of conduct.
Institutions covered by the Regulation
In accordance with Article 255 of the EC treaty, the Regulation will apply only to documents of the European Parliament, the Council and the Commission. These institutions and their constituent parts are defined in Article 2.
Subjects covered by the Regulation
Articles 28(1) and 41(1) of the Treaty on European Union expressly provide that the right of access also applies to documents relating to the common foreign and security policy and police and judicial cooperation in criminal matters.
In accordance with the case law of the Court of Justice, the Regulation must also apply to documents relating to activities under the ECSC and Euratom Treaties.(4)
Documents covered by the Regulation
The legislation will cover all documents held by the three institutions, i.e. documents drawn up by them or emanating from third parties and in the possession of the institutions. This widening in the scope of the access system is a major step forward compared to the current system which only covers documents produced by the institutions.
Both the European Parliament and the European Ombudsman keenly advocate this approach which is in line with existing legislation in most Member States. The formulation of Declaration N° 35 also supports a broader interpretation of Article 255. However, it is understood that access to a document received from a third party will not be granted if the document is covered by one of the exceptions provided for in Article 4. Where there is some doubt on this, the institution will consult the author of the document first, although it reserves the right, if no reply is forthcoming, to take the final decision on whether to hand over the document or not. Access to documents from third parties will be limited to those sent to the institution after the date of entry into application of this Regulation so as to enable European citizens to be properly informed of this wider access to documents.
Definition of the term "document"
The term "document" is defined as any content whatever its medium. It will cover only administrative documents, i.e. any document on a topic which falls within the institution's remit excluding documents expressing individual opinions or reflecting free and frank discussions or provision of advice as part of internal consultations and deliberations as well as informal messages such as e-mail messages which can be considered the equivalent of telephone conversations. As the Committee of Independent Experts emphasized in its Second Report "like all political institutions, the Commission needs the "space to think" to formulate policy before it enters the public domain, on the grounds that policy made in the glare of publicity and therefore 'on the hoof' is often poor policy"(5).
Compatibility between the general principle of access to documents and existing specific rules
Specific rules relating to the access to documents or files already exist in connection with certain procedures. It is therefore important to stipulate clearly that the future rules governing the right of access to documents will not apply where specific rules already exist for certain persons who have a particular interest in information or rules governing the confidentiality of certain documents. However, these rules should be revised as soon as possible in the light of the general principles on transparency.
In accordance with Article 255 of the EC Treaty, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, enjoys the right of access to documents. As is already the case under the present system, the applicant is not required to cite a special reason.
The draft legislation includes a number of exceptions to the right of access to documents. As under the present system, all the exceptions are based on a "harm test". This means that access to documents will be granted unless disclosure might significantly undermine certain specific interests, which are spelled out in Article 4 (with reference to specific examples). Compared with the rules laid down in the present Council and Commission code of conduct, the wording of the exceptions has been spelled out more clearly.
The proposal contains provisions similar to those in force under the present system - which operates satisfactorily - with a number of adjustments.
For example, the time-limit for replies may now be extended by one month, provided that the applicant is notified in advance and detailed reasons are given. In accordance with the judgement given by the Court of First Instance on 19 July 1999 in Case T-14/98 (Hautala v Council), the proposal also introduces a requirement that, where a document contains passages covered by one of the exceptions to the right of access, partial access must be granted after the passages covered by the exception have been concealed.
The Regulation introduces the principle that no reply to a confirmatory request equals a positive response which strengthens citizen's rights.
A number of final provisions are proposed, which are designed to:
It is also highly desirable that the three institutions should undertake to adopt a number of additional measures in order to ensure a consistent approach in the implementation of the new rules governing public right of access to their documents. Such measures include training and informing their staff and reviewing existing procedures for registering, filing, archiving and classifying documents.
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
regarding public access to documents of the European Parliament, the Council and the Commission
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 255(2) thereof,
Having regard to the proposal from the Commission,(6)
Acting in accordance with the procedure referred to in Article 251 of the Treaty,
(1) Article 1(2) of the Treaty on European Union, as amended by the Treaty of Amsterdam, enshrines the concept of openness, stating that "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen".
(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable vis-à-vis the citizens in a democratic system.
(3) The conclusions of the Birmingham, Edinburgh and Copenhagen European Councils stressed the need to introduce greater transparency into the work of the Union institutions. Following these conclusions, the institutions launched a series of initiatives aimed at improving the transparency of the decision-making process by targeting information and communication measures more effectively and adopting rules on public access to documents.
(4) The purpose of this Regulation is to widen access to documents as far as possible, in line with the principle of openness. It puts into practice the right of access to documents and lays down the conditions and limits on such access in accordance with Article 255(2) of the EC Treaty.
(5) Since the question of access to documents is not covered by provisions of the ECSC and Euratom Treaties, this Regulation is to apply to documents concerning the activities covered by those two Treaties. This was confirmed by Declaration N° 41 attached to the Treaty of Amsterdam.
(6) Under Articles 28(1) and 41(1) of the Treaty on European Union, the right of access also applies to documents relating to the common foreign and security policy and police and judicial cooperation in criminal matters.
(7) So as to provide greater openness in the work of the institutions and in line with current national legislation in most of the Member States, access to documents should be extended to include all documents held by the three institutions.
(8) The principles laid down by this Regulation are to be without prejudice to the specific rules applicable to access to documents, in particular those directly concerning persons with a specific interest.
(9) The public interest and certain individual interests must be protected by means of a system of exceptions. Examples of these interests must be given in each case so that the system is as transparent as possible. The institutions should also be entitled to protect their internal documents which express individual opinions or reflect free and frank discussions and provision of advice as part of internal consultations and deliberations.
(10) In order to ensure that the right of access is fully observed, the present two-stage administrative procedure, with the possibility of court proceedings or complaints to the Ombudsman, must be maintained and the principle whereby at the confirmatory stage no response equals a positive response.
(11) Each institution should take the measures necessary to inform the public about the new provisions in force; furthermore to make it easier for citizens to exercise their rights arising from this Regulation, each institution should provide access to a register of documents.
(12) Although neither the object nor the effect of this Regulation is to amend national legislation on access to documents, it is obvious that in accordance with the principle of loyalty governing relations between the Community institutions and the Member States, the latter will take care not to undermine application of this Regulation.
(13) In accordance with Article 255(3) of the EC Treaty, each institution must lay down specific provisions regarding access to its documents in its rules of procedure. Failing such implementing provisions, this Regulation cannot be applicable. This Regulation and its implementing provisions will replace the Council Decision of 20 December 1993 on public access to Council documents, the Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents and the European Parliament Decision 97/632/ECSC, EC, Euratom of 10 July 1997 on public access to European Parliament documents.(7)
HAVE ADOPTED THIS REGULATION:
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.
Access to documents from third parties shall be limited to those sent to the institution after the date of entry into application of this Regulation.
This Regulation shall not apply where specific rules on access to documents exist.
For the purposes of this Regulation:
A list of the committees referred to in the first paragraph d) and e) shall be drawn up in the context of the implementation of this Regulation, as provided for in Article 11.
The institutions shall refuse access to documents where disclosure could significantly undermine the protection of:
- public security,
- defence and international relations,
- relations between and/or with the Member States or Community and non-Community institutions,
- financial or economic interests,
- monetary stability,
- the stability of the Community legal order,
- court proceedings,
- inspections, investigations and audits,
- infringement proceedings, including the preparatory stages thereof,
- the deliberations and effective functioning of the institutions;
- personal 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;
- 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;
Processing of initial applications
In the case of repetitive applications and/or applications relating to very large documents, the institution concerned shall consult with the applicant to find an amicable and fair solution.
Failure to reply within the prescribed time-limit shall be equivalent to a negative response.
Processing of confirmatory applications - Remedies
Failure to reply within the prescribed time-limit shall be equivalent to a positive decision.
Exercise of the right to access
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 interested party.
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 adopt in its rules of procedure the provisions required to implement this Regulation. These provisions shall enter into force within three months of the adoption of this Regulation.
Entry into force
This Regulation shall enter into force on the third day following 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.
Done at ...
For the European Parliament For the Council
The President The President
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