Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL regarding public access to European Parliament, Council and Commission documents

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. Background

The Amsterdam Treaty introduced a new Article 255 into the EC Treaty which grants citizens and residents of the Union the right of access to documents of the European Parliament, the Council and the Commission. The Treaty 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 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].

[1] Code of conduct concerning public access to Council and Commission documents, adopted by the Council on 20 December 1993 (OJ L 340, 31.12.1993, p. 43), and by the Commission on 8 February 1994 (OJ L 46, 18.2.1994, p. 58). Parliament adopted a decision on public access to its documents on 10 July 1997 (OJ L 263, 25.9.1997, p. 27).

2. Preparatory work

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];

[2] OJ C 44, 10.2.1998, pp. 9-13.

- the Green Paper on public sector information in the information society [3];

[3] COM(1998) 585.

- 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.

3. Beneficiaries of the right of access (article 1)

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.

4. Scope of the regulation (articles 2 and 3)

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 3.

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].

[4] Case 328/85 Deutsche Babcock, [1987] ECR 5119 (Judgment given on 15.12.1987).

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 No 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 allow access to 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 form of content irrespective of the medium on which it is carried. 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 the 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].

[5] Second report by the Committee of Independent Experts, Chapter 7, paragraph 7.6.6.

Compatibility between the general principle of access to documents and existing specific rules

Specific rules relating to 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 where there are 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.

5. Exceptions to the right of access (article 4)

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 seriously harm 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.

6. Processing of initial and confirmatory applications, remedies, exercise of the right of access and rules on reproduction for commercial purposes or other forms of economic exploitation (articles 5 to 8)

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 judgment 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.

7. Final provisions (articles 9 to 11)

A number of final provisions are proposed, designed to:

- commit the institutions covered by the Regulation to taking the necessary steps to inform citizens of their rights and to set up public registers of documents;

- remind the institutions that they must lay down in their rules of procedure specific provisions for the implementation of the general principles and limits laid down in this Regulation.

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.

2000/0032 (COD)

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

regarding public access to European Parliament, Council and Commission documents

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],

[6] OJ C

Acting in accordance with the procedure referred to in Article 251 of the Treaty [7],

[7] OJ C

Whereas:

(1) The second paragraph of Article 1 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 citizen in a democratic system.

(3) The conclusions of the European Councils held at Birmingham, Edinburgh and Copenhagen 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 general principles 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 will apply to documents concerning the activities covered by those two Treaties. This was confirmed by Declaration No 41 attached to the Final Act of 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 to police and judicial cooperation in criminal matters.

(7) In order to bring about 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 European Parliament, the Council and the Commission.

(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 should be protected by way of a system of exceptions. Examples of these interests should be given in each case so that the system may be 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, should be maintained, whilst the principle should be introduced whereby at the confirmatory stage no response is treated as 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) Even though it is neither the object nor the effect of this Regulation to amend existing national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyalty which governs relations between the Community institutions and the Member States, Member States should take care not to hamper the proper application of this Regulation.

(13) In accordance with Article 255(3) of the EC Treaty, each institution lays down specific provisions regarding access to its documents in its rules of procedure. Failing such provisions, this Regulation cannot be applicable. This Regulation and the provisions giving effect to it will replace Council Decision 93/731/EC of 20 December 1993 on public access to Council documents [8], Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents [9] and European Parliament Decision 97/632/EC, ECSC, Euratom of 10 July 1997 on public access to European Parliament documents [10].

[8] OJ L 340, 31.12.1993, p. 43; Decision as last amended by Decision 96/705/EC, ECSC, Euratom (OJ L 325, 14.12.1996, p. 19).

[9] OJ L 46, 18.2.1994, p. 58; Decision as amended by Decision 96/567/EC, ECSC, Euratom (OJ L 247, 28.9.1996, p. 45).

[10] OJ L 263, 25.9.1997, p. 27.

HAVE ADOPTED THIS REGULATION:

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 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 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 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 in connection with award procedures;

(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.

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 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 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 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 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 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 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.

Done at Brussels,

For the European Parliament For the Council

The President The President