Amended 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 pursuant to Article 250 (2) of the EC Treaty)
Date: 2001-05-31
Institutions: European Commission
Subjects: EU institution, access to EU information, code of conduct, document, right to information

28.8.2001

EN

Official Journal of the European Communities

C 240 E/165

Amended proposal for a Regulation of the European Parliament and of the Council regarding
public access to European Parliament, Council and Commission documents (1)

(2001/C 240 E/25)

COM(2001) 299 final (cid:151) 2000/0032(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 1 June 2001)

1. BACKGROUND

amended to take account of changes made to the corre-
sponding articles.

the

establishing

the Treaty

Article 255 of
European
Community, as amended by the Treaty of Amsterdam, states
that (cid:145)Any citizen of the 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(cid:146). Within two years of the entry into
the Council, acting in
force of
the Amsterdam Treaty,
accordance with the codecision procedure,
is to lay down
general principles and limits governing this right of access.

On 28 January 2000, the Commission presented a proposal for
a Parliament and Council Regulation aimed at implementing
the right of access thus provided for
in the Treaty. On
16 November 2000 Parliament approved amendments to the
proposal; most of these the Commission was unable to accept.
Parliament deferred voting on its legislative resolution, thus
allowing negotiation between the institutions before the
formal completion of the first reading. Negotiations began in
an informal (cid:145)trialogue(cid:146) on 24 January 2001, and resulted in a
compromise proposal, which was approved on 25 April 2001
by Parliament’s Committee on Citizens’ Freedoms and Rights,
Justice and Home Affairs, by the Permanent Representatives
Committee (Part 2), and by the Commission.

At its sittings on 2 and 3 April 2001, Parliament adopted a
resolution amending the Commission proposal in line with the
compromise negotiated between the three institutions. The
Commission told the House that it would accept all of these
amendments.

2. THE AMENDMENTS

change,

to incorporate into its amended
The Commission agrees
proposal, without
amendments
the
numbered 81 to 119 which Parliament adopted at the sitting
on 3 May. Amendments 81 to 118 are described below;
amendment 119 is a technical amendment which confirms
the withdrawal of some of the amendments Parliament had
approved on 16 November 2000.

compromise

2.1. Recitals (amendments 81 to 97)

The amendments to the recitals generally serve to clarify
the objectives of the Regulation. Some recitals are also

(1) OJ C 177 E, 27.6.2000, p. 70.

2.2. Purpose, beneficiaries and scope (Articles 1 and 2 (cid:151)

amendments 98 and 99)

The new Article 1 restates the purpose of the Regulation.
Institutions are left free to grant access to documents to
persons who are not resident or who have not got their
registered office in a Member State; this provision spells
out the present practice.

2.3. Definitions (Article 3 (cid:151) amendment 100)

In order to protect the institutions’ ability to formulate
policy, the Commission originally proposed that the right
of access should not apply to documents for internal use,
such as discussion documents, opinions of departments,
or informal messages. This restriction is now removed,
and the definition of documents that currently applies
remains unchanged. But documents for internal use are
protected by specific exceptions in Article 4(3)
(see
below).

2.4. Limits to the right of access (Article 4 (cid:151) amendment

101)

Nature of the exceptions

In order
to promote greater openness, a document
covered by one of these exceptions is nevertheless to
be disclosed where the interest to be protected is over-
ridden by the public interest in disclosure, though this
principle does not apply where the interest
to be
protected is the public interest, or privacy and the
integrity of the individual. Where the harm likely to be
caused by disclosure outweighs the interest in disclosure,
the institution must refuse access.

List of exceptions

In its initial proposal
included
infringement
preparatory stages, among the overriding exceptions.

the Commission had expressly
the

proceedings,

including

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that

exceptions

infringement proceedings

In a spirit of compromise, the Commission is prepared to
should not be
accept
expressly included among the
listed in
Article 4(2), because it considers that the agreed form
the Regulation implies that present practice with
of
regard to the exercise of its responsibilities in the moni-
toring of compliance with Community law will be main-
tained. Present practice derives from the interpretation of
Community law by the Court of Justice. The Commission
will draw attention to this practice in a statement to be
entered in the Council minutes.

Protection of the (cid:145)space to think(cid:146)

The new paragraph 3 allows protection of documents for
internal use, before a decision is taken, and documents
containing opinions for use as part of deliberations and
preliminary consultations within the institutions, even
after a decision has been taken in some cases.

Third-party documents

Paragraph 4 states that the institution is to consult the
third party concerned in order to determine whether
disclosure is to be refused under one of the exceptions.
Paragraph 5 reproduces Declaration No 35 annexed to
the Treaty of Amsterdam.

Exceptions to apply only for a limited time

The exceptions are to apply only for the period during
which protection is justified. In line with the rules on the
opening to the public of the historical archives of the
European Communities (1),
exceptions will not
normally apply for more than thirty years after the
document was written.

the

2.6. Applications (Articles 6 to 8 and 10 (cid:151) amendments

103 to 105 and 107)

The time allowed for a reply is reduced to 15 working
days, which is the time specified in the Code of Good
Administrative Behaviour for Staff of the Commission.

2.7. Treatment of sensitive documents (Article 9 (cid:151)

amendment 106)

All the special rules on access to sensitive documents are
now grouped in one article. Applications are to be
themselves
handled only by staff entitled to acquaint
Sensitive
with
2).
register or
documents are to be
released only with the
the originator
(paragraph 3).

(paragraph
recorded in the
consent of

documents

such

2.8. Registers, direct access and publication (Articles 11

to 13 (cid:151) amendments 109 to 111)

The rules on registers are more detailed than in the
Commission’s initial proposal. The provisions on direct
access and the publication of certain types of document
Journal go beyond the strict scope of
in the Official
Article 255 of the Treaty, but are generally in line with
current practice. The three institutions have indicated
their
intention of developing the dissemination of
documents by electronic means.

2.9. Monitoring and follow-up measures (Articles 14 to

17 (cid:151) amendments 108 and 112 to 115)

The amended proposal contains more specific provisions
on coordination between the institutions, where an inter-
institutional committee is to be established, and on
follow-up and evaluation of the application of the Regu-
lation.

2.5. Disclosure

by Member

States

(Article

5 (cid:151)

amendment 102)

The new Article 5 spells out the principle of loyal coop-
eration stated in the recitals (the old recital 12, now
recital 15).
It provides that where a Member State is
asked for a document originating from an institution, it
is to consult with the institution in order to avoid jeop-
ardising the attainment of the objectives of the Regu-
lation.

(1) Commission Decision No 359/83/ECSC of 8 February 1983;
Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983.

2.10. Entry into force (cid:151) compatibility of existing legis-
lation with the Regulation (Articles 18 and 19 (cid:151)
amendments 116 and 117)

Specific rules on access to documents in existing legis-
lation are to be re-examined in the light of the Regu-
lation. The legislation on the opening to the public of the
historical archives of the European Communities is to be
studied in order to establish that it does not contain
anything that conflicts with the Regulation (see point
2.4 above).

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2.11. Agencies (cid:151) call

covered by the Regulation (joint
amendment 118)

to institutions and bodies not
statement (cid:151)

internal rules on public access to documents which are
compatible with the Regulation.

The rules on public access to documents are to be made
applicable to agencies set up by the institutions covered
by the Regulation. A joint statement promises measures
to that effect.

The three institutions call on the Community institutions
and bodies not covered by the Regulation to adopt

3. CONCLUSION

Acting under Article 250(2) of the EC Treaty, therefore, the
Commission amends its proposal for a Regulation as outlined
above.