Proposal for a Council Regulation amending Regulation (EEC, Euratom) No 354/83 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community
Date: 2002-08-19
Institutions: European Commission
Subjects: EAEC, EU institution, European Community, access to information, archives, dissemination of information, document, law relating to information

31.12.2002

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Official Journal of the European Communities

C 331 E/169

Proposal for a Council Regulation amending Regulation (EEC, Euratom) No 354/83 concerning the
opening to the public of the historical archives of the European Economic Community and the
European Atomic Energy Community

(2002/C 331 E/30)

COM(2002) 462 final — 2002/0203(CNS)

(Submitted by the Commission on 19 August 2002)

EXPLANATORY MEMORANDUM

1. Background

On 30 May 2001 the European Parliament and the Council adopted Regulation (EC) No 1049/2001 laying
down the general
framework for public access to European Parliament, Council and Commission
documents.

Article 18 of the Regulation states that the Commission will examine the conformity of Regulation
No 354/83 concerning the opening to the public of the historical archives of the EEC and the EAEC
with the principles and limits laid down by the new Regulation on public access to documents.

Article 4(7) of the Regulation (EC) No 1049/2001 states that exceptions to the right of access referred to
in paragraphs 1 to 3 of that Article apply only for a maximum of thirty years. However, exceptions
relating to protection of privacy (Article 4(1)(b)) or of commercial interests (first indent of Article 4(2)) and
the specific provisions relating to sensitive documents (Article 9) may, if necessary, be applied after that
period.

2. Institutions covered (Article 1)

Now that the Court of Auditors is an institution, pursuant to Article 7 of the EC Treaty (1), it is no longer
necessary for Article 1 to specify that it be treated in the same way as an institution. For the purposes of
the new Regulation, the Economic and Social Committee and the Committee of the Regions will be treated
in the same way as the institutions referred to in Article 7(1) of the Treaty.

3. Exceptions applicable after thirty years

— Protection of privacy: Regulation (EEC, Euratom) No 354/83 does not apply to the files of staff of the
European Communities or to documents containing information on the private or professional life of
an individual; there is no right of access to these documents. Excluding a category of documents in
this way is not compatible with the general principle of Regulation (EC) No 1049/2001, which grants
access to all documents unless disclosure of its contents is liable to harm one of the interests
specifically protected by the Regulation.

Protection of privacy constitutes an exception to right of access and it can last beyond the thirty-year
deadline laid down by Regulation (EC) No 45/2001 (2).

— Protection of commercial interests: before deciding, on expiry of the thirty-year period, to give the
public access to documents and records which could affect commercial
interests if disclosed, the
institution will inform the firms or other interested parties, in accordance with rules to be defined
by each institution, of its intention to make the documents accessible to the public.

(1) OJ C 340, 10.11.1997, p. 173.
(2) OJ L 8, 12.1.2001, p. 1.

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— Protection of sensitive documents: Regulation No 1049/2001 defines sensitive documents as
the public interest, notably
international relations and financial, monetary and

documents classified as ‘confidential’ or higher in order to protect
public security, defence and military matters,
economic policy of the Community or a Member State.

At the end of the thirty-year period, the Institution decides whether sensitive documents should be
declassified. Documents not declassified are not given public access and will be re-examined period-
ically under Article 5(1) of Regulation (EEC, Euratom) No 354/83.

4. Abolition of category exemptions (Article 3)

Article 3(1)(b),
documents from the right
documents and records of cases submitted for judgment
Communities and documents classified as ‘confidential’ or higher.

(c) and (2) of Regulation (EEC, Euratom) No 354/83 excludes certain categories of
to public access: contracts concluded by the Euratom Supply Agency,
the European

to the Court of

Justice of

In Regulation (EC) No 1049/2001, these documents are covered by the right of access and their disclosure
may be refused only on the basis of the exceptions in Article 4 and the special provisions of Article 9. It is
therefore necessary to abolish the category exceptions in Regulation (EEC, Euratom) No 354/83 and, if
necessary, protect documents on the basis of one of the exceptions to right of access, the application of
which may be extended under Regulation (EC) No 1049/2001.

It is, however, necessary to maintain the exception to public access provided for in Article 3(1)(a) of
Regulation (EEC, Euratom) No 354/83, which concerns documents classified in accordance with Regulation
No 3 of 1958 implementing Article 24 of the Euratom Treaty. The Court of Justice has ruled (Judgment of
15 December 1987 in Deutsche Babcock, Case 328/85, [1987] ECR 5119) that the provisions of the EC
Treaty and those adopted under the Treaty are applicable to matters covered by the Euratom Treaty only
by default. The classifications in question are therefore not covered by the access rules of Regulation (EC)
No 1049/2001 and Regulation (EEC, Euratom) No 354/83. On the other hand, as there are no Euratom
provisions requiring that supply contracts be excluded, Article 3(1)(b) cannot be retained. However, the
protection of supply contracts is ensured through the exception relating to commercial interests.

THE COUNCIL OF THE EUROPEAN UNION,

European
No 1049/2001 (1).

Parliament

and Council Regulation

(EC)

Having regard to the Treaty establishing the European
Community, and in particular Article 308 thereof,

Having regard to the Treaty establishing the European Atomic
Energy Community, and in particular Article 203 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

(2) The exceptions to public right of access provided for in
Regulation (EC) No 1049/2001 are applicable for a
maximum period of thirty years. The exceptions relating
to protection of privacy or commercial interests and the
specific provisions on sensitive documents may, however,
apply beyond that period if necessary.

(3) Council Regulation (EEC, Euratom) No 354/83 (2) provides
that the public will not be given access to certain categories
of documents
the documents were
created. It is necessary to bring these exceptions into line
with the exceptions to right of access provided for in
Regulation (EC) No 1049/2001.

thirty years after

(1) The general principles and the limits governing the public's
right of access to documents of the European Parliament,
the Council and the Commission were laid down in

(1) OJ L 145, 31.5.2001, p. 43.
(2) OJ L 43, 15.2.1983, p. 1.

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(4) For the purposes of Regulation (EEC, Euratom) No 345/83,
the Economic and Social Committee and the Committee of
the Regions should henceforth be treated in the same way
as the institutions referred to in Article 7(1) of the Treaty
establishing the European Community.

(5) Regulation No 354/83 should therefore be amended

accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC, Euratom) No 354/83 is amended as follows:

intellectual property, the institution shall inform the firm or
the person concerned, in accordance with the rules to be
defined by each institution, of its intention to make the
documents
in question accessible to the public. The
documents shall not be released if, taking account of the
observations of the third parties, the institution considers
that
their disclosure could jeopardise such commercial
interests, unless there is an overriding public interest in
disclosure.

4.
Sensitive documents within the meaning of Article 9
of Regulation (EC) No 1049/2001 shall be accessible within
the limits laid down in that Article.

1. Paragraph 1 of Article 1 is replaced by the following:

Article 3

‘1.
The institutions of the European Community and of
the European Atomic Energy Community (hereinafter
referred to as “the institutions”) shall establish historical
archives and open them to the public on the terms
the expiry of a
provided for by this Regulation after
period of
the
creation of the document. For the purposes of this Regu-
lation the Economic and Social Committee and the
Committee of the Regions shall be treated in the same
way as the institutions referred to in Article 7(1) of the
Treaty establishing the European Community.’

starting from the date of

thirty years

The public shall not have access to documents and records
that have been classified in accordance with Article 10 of
Council Regulation No 3 of 31 July 1958 implementing
Article 24 of the Treaty establishing the European Atomic
Energy Community (1), and have not been declassified.

___________
(1) OJ 17, 6.10.1958, p. 406.’

3. Article 4 is deleted.

2. Articles 2 and 3 are replaced by the following:

4. Article 6 is replaced by the following:

‘Article 2

‘Article 6

In the case of documents covered by the exceptions
1.
relating to privacy and the integrity of the individual and
the business interests of an individual or firm,
including
intellectual property,
the exceptions may continue to
apply after this period if the relevant conditions for their
application are satisfied.

the European Communities,

2.
Documents containing information on the private or
professional life of individual persons, including files of staff
shall be disclosed in
of
accordance with Regulation (EC) No 45/2001 on the
protection of individuals with regard to the processing of
personal data by the Community institutions and bodies,
and in particular Articles 4 and 5 thereof.

3.
Before deciding to make available to the public
documents which, if disclosed, could harm the commercial
interests of a firm or individual, including those relating to

Where a Member State receives a request for a document in
its possession, originating from an institution, unless it is
clear that the document must or must not be disclosed, the
Member State shall consult with the institution concerned in
order
jeopardise the
attainment of the objectives of this Regulation.

to take a decision that does not

The Member State may instead refer the request to the
institution.’

Article 2

This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

This Regulation shall be binding in its entirety and directly
applicable in all Member States.