Green Paper - Public access to documents held by institutions of the European Community - A review
Date: 2007-04-18
Institutions: European Commission
Subjects: EU institution, access to EU information, activity report, dissemination of EU information

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.4.2007 
COM(2007) 185 final 

GREEN PAPER 

Public Access to Documents held by institutions of the European Community 

A review 

EN 

   EN 

 
 
 
  
 
GREEN PAPER 

Public Access to Documents held by institutions of the European Community 

A review 

INTRODUCTION 

During the last fifteen years, the institutions of the European Union have gradually 
become  more  open  to  the  public.  The  principle  of  openness  was  introduced  by  the 
Treaty of Maastricht in 1991, with a view to strengthen the democratic nature of the 
institutions.  The  Council  and  the  Commission  subsequently  adopted  a  Code  of 
Conduct  on  public  access  to  their  documents  as  an  additional  and  essential  part  of 
their information and communication policy.. In 1996, the public right of access was 
enshrined  in  Article  255  of  the  Treaty  establishing  the  European  Community,  as 
amended by the Treaty of Amsterdam. Regulation (EC) No 1049/20011 gives effect 
to the right of citizens to obtain documents of the European Parliament, the Council 
and the Commission. 

The  Regulation,  which  became  applicable  on  3  December  2001,  has  led  to  a  steep 
and  sustained  increase  in  requests  for  access  to  documents,  as  the  annual  reports 
published by the three institutions show2. In January 2004 the Commission published 
a report on the implementation of the Regulation, which provided a first overview of 
how the EU’s regime for public access to documents works in practice3. It appeared 
that the number of access requests was increasing with around 50% every year. Since 
on  average  two  thirds  of  requests  were  granted,  the  Regulation  had  opened  to  the 
public  a  considerable  amount  of  previously  unpublished  documents.  On  the  other 
hand,  the  exceptions  set  out  in  the  Regulation  provided  adequate  protection  for 
legitimate interests. Even if the implementation of the Regulation put a burden on the 
institutions,  the  overall  conclusion  was  that  it  had  worked  remarkably  well. 
Therefore,  the  Commission  considered  that  there  was  no  need  to  amend  the 
Regulation  in  the  short  term,  but  that  improvements  could  be  achieved  without 
changing the legislation. 

Three  years  have  passed  since  this  first  evaluation,  during  which  more  experience 
has been gained, a body of case law has developed and a number of complaints have 
been  settled  by  the  European  Ombudsman.  Furthermore,  the  European  Parliament 
and the Council have adopted a new Regulation applying the Convention of Århus4 

1 
2 

3 

4 

OJ L 145, 31.5.2001, p. 43. 
These reports are available on the following websites:  
Parliament: http://www.europarl.europa.eu/register/pdf/FINAL_605496_1_EN.pdf 
Council: http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=305&lang=EN&mode=g 
Commission: http://ec.europa.eu/transparency/access_documents/index_en.htm 
COM(2004)  45:  Report  from  the  Commission  on  the  implementation  of  the  principles  in  Regulation 
(EC)  No  1049/2001  regarding  public  access  to  European  Parliament,  Council  and  Commission 
documents. 
Convention on Access to Information, public Participation in Decision-making and Access to Justice in 
environmental Matters, done at Århus, Denmark, on 25 June 1998. 

EN 

2 

   EN 

 
 
                                                 
 
 
 
to the institutions and bodies of the European Community, which will have an impact 
on access to documents containing environmental information. 

For these reasons, the time seems right to assess whether the Regulation needs to be 
amended. Therefore, when the Commission decided, on 9 November 2005, to launch 
a  “European  Transparency  Initiative”5,  it  included  a  review  of  Regulation  (EC)  No 
1049/2001 as part of this drive to create more openness. In a Resolution adopted on 4 
April  2006,  the  European  Parliament  called  on  the  Commission  to  come  forward 
with proposals for amending the Regulation6. 

The  right  of  access  to  documents  is  one  aspect  of  a  policy  on  openness  and  the 
Regulation  must  be  seen  against 
information  and 
communication  policy  of  the  institutions.  In  this  context,  the  new  policy  of  open 
meetings in Council is of particular significance.  

the  background  of 

the 

In  the  present  consultation  document,  the  Commission  first  takes  stock  of  the 
existing  rules  governing  the  public  right  of  access  to  documents  and  their 
implementation,  then  outlines  some  options  for  improving  the  legislation  and 
practical measures aimed at offering better access to documents of the institutions. 

The public is invited to comment on the regime for obtaining access to documents of 
the  European  institutions  and  also  to  react  to  the  options  set  out  in  this  Paper. 
Through  the  questionnaire,  the  Commission  is  seeking  the  views  of  citizens, 
including  civil  society  organisations,  economic  operators,  public  authorities  and 
other organisations with an interest in European affairs.  

The public consultation starts with the publication of this Green Paper and will last 
for  three  months.  The  Commission  intends  to  analyse  carefully  the  responses 
received,  and  will  publish  a  report  summarising  the  outcome  of  this  public 
consultation  and  outlining  follow-up  action.  On  the  basis  of  this  report,  the 
Commission will submit proposals for amending Regulation (EC) No 1049/2001. 

The expected time schedule is as follows: 

•  Public consultation: 

from mid April to mid July 2007 

•  Report on the outcome: 

September 2007 

•  Proposals for amending the Regulation: 

October 2007. 

Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on 
the application of the provisions of the Århus Convention to Community institutions and bodies (OJ L 
264, 25.9.2006, p. 13). 
Minutes  of  the  Commission's  meeting  No  1721  of  9  November  2005,  item  6;  see  also  documents 
SEC(2005) 1300 and SEC(2005) 1301. 
P6_A(2006) 052. 

5 

6 

EN 

3 

   EN 

 
                                                                                                                                                         
PART ONE : APPLICATION OF THE EXISTING RULES ON PUBLIC ACCESS 

1. 

THE IMPLEMENTATION OF THE REGULATION  

Statistics show that, overall, the Council and the Commission grant two out of three 
applications for access. Parliament grants more than 80% of the requests it receives, 
largely on account of the public nature of its proceedings. 

There has been a steady increase in the number of initial access requests submitted to 
the  Parliament  and  the  Commission.  The  number  of  requests  submitted  to  the 
Council  remains  stable,  largely  due  to  the  increasing  number  of  documents  made 
directly  available  on  the  Council's  register.  On  the  other  hand  the  number  of 
confirmatory requests (i.e. applications asking the institution to reconsider a refusal 
to grant access) remains more or less stable7. Globally, only 4% of all initial requests 
submitted to the three institutions lead to confirmatory requests. Applications to the 
Court  and  complaints  to  the  European  Ombudsman  represent  only  a  very  small 
margin of the total number of requests handled. 

Against  this  background,  the  report  on  the  implementation  of  the  Regulation, 
published on 30 January 2004 concluded that the rules on public access had worked 
in  a  very  satisfactory  way.  Recent  experience  tends  to  confirm  the  findings  of  this 
report,  in  particular  as  concerns  access  in  relation  to  legislative  procedures  and  the 
expansion  of  proactive  information  provision  by  the  institutions.  However,  there  is 
scope  for  greater  clarity  as  concerns  the  application  of  the  general  right  of  access 
when  applied  simultaneously  with  balancing  interests  arising  in  relation  to  case-
related work, such as data protection or specific rights of access. 

1.1. 

Beneficiaries and types of documents requested 

•  Even  if  more  and  more  citizens  use  their  right  of  access,  most  requests  are 
submitted by specialists in EU affairs: economic operators, law firms, NGOs and 
the academic world.  

•  The main areas of interest are competition cases8, taxation, the internal market, the 
environment,  public  procurement  (Commission)  and  Justice  and  Security 
(Council). 

•  Applications submitted to the Commission often relate to complete specific files 
or to "all documents" on a given subject, requiring the analysis of a large number 
of documents.  

•  Many access requests, in particular among those submitted to the Commission, are 
related to litigation; some applicants request access to material that can be useful 
for lodging complaints or bringing proceedings before a court of law. 

7 

8 

The number of confirmatory requests submitted to Parliament has risen from 1 to 10 between 2004 and 
2005. 
13% of requests handled by the Commission concern competition policy and relate mostly to state aid 
cases. 

EN 

4 

   EN 

 
                                                 
1.2. 

Limitations on the right of access 

Some  exceptions  are  invoked  in  a  limited  number  of  cases.  The  exceptions  most 
frequently relied on are: 

the decision-making process  

inspections and investigations (e.g. infringements, cartels, merger controls, 
State  aids,  trade  defence  cases,  investigation  by  the  anti-fraud  office 
OLAF) 

Council 
Commission 

Commission 

the  interests  of  third  parties  involved  in  an  administrative  procedure 
(commercial interests, data protection) 

Commission 
Parliament 

1.3. 

Public access and data protection 

The  right  of  access  to  documents  and  the  right  of  individuals  with  regard  to 
protection of their personal data are both rooted in the EC Treaty (Articles 255 and 
286 respectively). They have been implemented through two Regulations: (EC) No 
45/2001 on data protection9 and (EC) No 1049/2001 on public access to documents. 
However,  the  two  rights  may  collide  when  access  is  requested  specifically  to 
information relating to an individual. The European Data Protection Supervisor has 
addressed  this  issue  in  a  background  paper,  providing  useful  practical  guidance  for 
handling  such  requests10.  Three  cases  concerning  refusal  by  the  Commission  to 
disclose personal data are currently pending before the Court of First Instance11. Two 
other pending cases address the data protection issue amongst others12.  

1.4. 

General and specific rights of access 

The  purpose  of  Regulation  (EC)  No  1049/2001  is  to  grant  the  public  the  widest 
possible access to documents held by the Community institutions. 

Specific  rules  grant  parties  involved  in  a  particular  procedure  a  privileged  right  of 
access  to  relevant  documents  which  cannot  be  disclosed  to  the  public.  Under  these 
rules, access is often subject to particular conditions and procedures, which together 
deliver a delicate balance between the rights of the defence and the need to protect 
the effectiveness of procedures.  

The relation between public access and privileged access might need to be clarified 
in order to avoid inconsistencies.  

9 

10 
11 

12 

Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on 
the  protection  of  individuals  with  regard  to  the  processing  of  personal  data  by  the  Community 
institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001). 
“Public Access to Documents and Data Protection”, Background Paper Series, July 2005, No 1. 
Case T-194/04, The Bavarian Lager Company Ltd. v Commission; Case T-170/03, BAT v Commission; 
Case T-161/04, Valero Jordana v Commission. 
Cases T-121/05 and T-166/05, Borax Europe Ltd. v Commission. 

EN 

5 

   EN 

 
                                                 
1.5. 

Active provision of information 

Public  registers  enable  citizens  to  identify  documents  that  might  be  of  interest  to 
them and to effectively exercise their right of access. Where documents can be made 
accessible to the public, the institutions make them directly available on the Internet. 

There is room for improvement as regards: 
–  the scope of the registers, in particular those of the Commission; 
–  the number of documents or the amount of information made directly accessible 

to the public; 

–  the user-friendliness of the electronic information systems. 

Parliament, the Council and the Commission have already started looking at ways of 
improving the dissemination of information through the Internet. Such improvements 
can be achieved without amending the legislation. 

2. 

THE CASE LAW ON REGULATION (EC) NO 1049/2001 

Even if the number of cases brought before the Court of First Instance is very limited 
as  compared  to  the  number  of  access  requests,  the  Court  has,  in  a  series  of  recent 
judgments, clarified some provisions of the Regulation and in particular the scope of 
some  of  the  exceptions  to  the  right  of  access.  This  has  contributed  significantly  to 
improve the implementation of the existing rules. Incorporating settled case law in a 
new legal text would provide more legal clarity for citizens and better guidance for 
the institutions when handling access requests. 

2.1. 

General characteristics of the Regulation  

The Court of First Instance has clearly stated that the purpose of the Regulation is to 
ensure  that  every  person  has  access  to  public  documents.  The  specific  interest  of  a 
person in obtaining access to a document, e.g. for the purpose of defending a position 
in litigation, is not relevant with regard to the decision whether or not to disclose the 
document  when  the  institution  applies  the  mandatory  exceptions  under  Article  4(1) 
(a) or when a Member State opposes disclosure in accordance with Article 4(5)13. In 
a recent judgment, the Court of First Instance has ruled that it follows from Article 
6(1) of the Regulation, whereby an applicant is not obliged to state reasons for the 
application, that a request for access must be handled regardless of the person who 
made the application14. In the same judgment, the Court has stated that an applicant’s 
right  of  defence  in  a  case  is  of  a  private  nature.  Therefore,  it  cannot  constitute  an 
overriding public interest in disclosure of a document15.  

13 

14 

15 

Judgment  of  the  Court  of  First  Instance  of  26  April  2005,  joined  cases  T-110/03,  T-150/03  and  T-
405/03, J.M. Sisón v Council, confirmed by judgment of the Court of Justice of 1 February 2007, case 
C-266/05  P;  Order  of  the  Court  of  First  Instance  of  15  June  2005,  case  T-98/04,  Società  imballaggi 
metallici Salerno Srl (SIMSA) v Commission. 
Judgment of the Court of First Instance of 6 July 2006, joined cases T-391/03 and T-70/04, Franchet 
and Byk v Commission, at paragraph 82. 
Same judgment, at paragraphs 136-139. 

EN 

6 

   EN 

 
                                                 
2.2. 

Procedural issues 

2.2.1.  The  need  to  carry  out  a  concrete  analysis  of  the  documents  to  which  access  is 

requested 

The refusal to grant access to documents must, in principle, be based on a concrete 
analysis  of  their  content  in  order  to  assess  the  extent  to  which  an  exception  to  the 
right of access is applicable and the possibility of granting partial access. However, 
such an examination may not be necessary where, due to the particular circumstances 
of the individual case, it is obvious that access must be refused or, on the contrary, 
granted16. 

2.2.2.  The handling of voluminous requests 

According to the case law mentioned in the previous paragraph, the mere fact that an 
application  for  access  concerns  a  large  number  of  documents  does  not  relieve  the 
institutions of the obligation to carry out a concrete examination of the documents. In 
the  same  judgment,  the  Court  indicated  that  in  exceptional  cases,  where  the 
administrative  burden  entailed  by  a  concrete  and  individual  examination  of  the 
documents  would  exceed  what  may  reasonably  be  required,  a  derogation  to  the 
obligation to examine the documents may be permissible. However, the institutions 
must investigate all other conceivable options in order to limit their workload, while 
granting at least part of the applicant's request17.  

2.3. 

Clarification of exceptions 

2.3.1.  The protection of legal advice - Article 4(2) 2nd indent 

The  Court  of  First  Instance  has  established  that  the  exception  aimed  at  protecting 
“legal advice”, set out in Article 4(2), second indent of the Regulation, applies to any 
legal advice given by the Legal Service of the institutions and is not limited to advice 
given  in  the  course  of  litigation.  However,  as  is  the  case  with  other  documents 
relating  to  interests  protected,  refusal  to  disclose  a  document  containing  a  legal 
opinion must be based on a concrete and individual examination18. An appeal to the 
Court of Justice against this judgment is pending. 

2.3.2.  The protection of investigations – Article 4(2) 3rd indent 

The  Court  of  First  Instance  has  clarified  the  fact  that  certain  types  of  documents 
relating to pending investigations are covered by the purpose of these investigations. 
With  regard  to  infringement  proceedings,  the  Court  held  that  Member  States  are 
entitled to expect the Commission to guarantee confidentiality during investigations 
which  might  lead  to  infringement  proceedings.  This  requirement  of  confidentiality 
remains even after the matter has been brought before the Court of justice19. 

16 

17 
18 
19 

the  Court  of  First  Instance  of  13  April  2005,  case  T-2/03,  Verein 

Judgment  of 
Konsumenteninformation v Commission. 
idem 
Judgment of 23 November 2004, case T-84/03, Maurizio Turco v Council. 
Case T-191/99, David Petrie a.o. v Commission. 

für 

EN 

7 

   EN 

 
                                                 
More  recently,  the  Court  of  First  Instance  indicated  that  acts  of  investigation  or 
inspection  may  remain  covered  by  the  exception  based  on  the  protection  of 
inspections,  investigations  and  audits  as  long  as  the  investigations  or  inspections 
continue,  even  if  the  particular  investigation  or  inspection  which  gave  rise  to  the 
report  to  which  access  is  sought  is  completed.  However,  the  possibility  to  grant 
access  to  such  documents  may  not  depend  on  an  uncertain,  future  and  possibly 
distant  event20.  The  concrete  application  of  these  principles  might  require 
clarification. 

2.3.3.  The  ability  of  Member  States  to  oppose  disclosure  of  documents  originating  from 

them - Article 4(5) of the Regulation 

Declaration  No  35  attached  to  the  Final  Act  of  the  Treaty  of  Amsterdam  provides 
that a Member State may request the Commission or the Council not to communicate 
to  third  parties  a  document  originating  from  that  State  without  its  prior  agreement. 
This  Declaration  is  reflected  in  Article  4(5)  of  the  Regulation.  The  Court  of  First 
Instance  held  that,  where  the  originating  Member  State  has  requested  that  a 
document not be disclosed, the application for access to that document is governed 
by the relevant national provisions and not by the Regulation21. In accordance with 
this  case  law,  institutions  will  always  consult  the  authorities  of  the  Member  State 
when they receive a request for access to a document originating from that Member 
State.  It  should  be  noted,  however,  that  the  judgment  in  case  T-168/02, 
Internationaler Tierschutz-Fonds GmbH v Commission, is under appeal to the Court 
of Justice. 

2.3.4.  The relation between the Regulation and specific rules on confidentiality  

In  two  judgments  the  Court  of  First  Instance  has  ruled  that  the  secrecy  of  the 
proceedings  of  selection  boards,  set  out  in  Article  6  of  Annex  III  to  the  Staff 
Regulations, is to be considered as a lex specialis derogating from the general rules 
on access to documents22. So far, this reasoning has not been extended to other areas, 
where specific rules on confidentiality exist. Furthermore, the secrecy of proceedings 
of a body does not mean that the documents established or considered by this body 
are  covered  by  the  same  secrecy.  However,  there  is  a  need  for  clarification  of  the 
relationship between the general regime for public access to documents and specific 
rules  set  out  by  the  Community  legislator  in  order  to  ensure  the  operational 
effectiveness  of  certain  information  gathering  powers  which  are  essential  to  the 
proceedings at issue. 

2.3.5.  Transparency and the obligation of professional secrecy 

The principle of transparency established by Article 255 of the EC Treaty is balanced 
by the obligation of professional secrecy laid down in Article 287, which is explicitly 
mentioned  in  various  acts  of  secondary  legislation.  It  is  of  particular importance in 

20 
21 

22 

Joined cases T-391/03 and T-70/04, Franchet and Byk v Commission. 
Judgment  of  the  Court  of  First  Instance  of  30  November  2004,  case  T-168/02,  Internationaler 
Tierschutz-Fonds GmbH v Commission; see also judgments of the Court of First Instance in cases T-
76/02, Mara Messina v Commission and T-87/03, Scippacercola v Commission. 
Judgments  of  5  April  2005  in  case  T-376/03,  Hendrickx  v  Council  and  of  14  July  2005  in  case  T-
371/03, Le Voci v Council. 

EN 

8 

   EN 

 
                                                 
competition  policy,  where  the  Commission  holds  information  supplied  by  or 
obtained  from  undertakings,  but  also  in  trade  defence  cases23  and  in  public 
procurement.  Article  28  of  Regulation  (EC)  No  1/2003  stipulates  that  information 
collected  through  inspections and investigations or received further to a request for 
information must be used only for the purpose for which it was acquired and that no 
information of the kind covered by the obligation of professional secrecy should be 
disclosed.  Whilst  neither  Article  287  EC  Treaty  nor  Article  28  of  Regulation  (EC) 
No 1/2003 explicitly indicates what type of information is covered by this obligation, 
the  Court  of  First  Instance  has  already  clarified  the  concept  of  ‘business  secrets’, 
stating that this concerns information of which not only disclosure to the public but 
also mere transmission to a person other than the one who provided the information 
may  seriously  harm  the  latter’s  interests24.  However,  the  obligation  of  professional 
secrecy may prevent disclosure to the public of information which does not require 
the special protection afforded to business secrets. These issues might merit further 
clarification. 

3. 

FURTHER DEVELOPMENTS 

3.1. 

Application of the Århus Convention to Community institutions and bodies 

On  6  September  2006,  Parliament  and  the  Council  adopted  Regulation  (EC)  No 
1367/2006 on the application of the provisions of the Århus Convention on Access to 
Information,  Public  Participation  in  Decision-making  and  Access  to  Justice  in 
Environmental Matters to Community institutions and bodies25. The Regulation will 
apply from 28 June 2007. 

This  new  Regulation  covers  various  aspects  of  citizens' 
environmental policy: 

involvement 

in 

•  access to information on request 

•  active dissemination of information 

•  consultation on plans and programmes  

•  the right to request an administrative review of a decision or of a failure to decide. 

In the context of this Paper, only the provisions regarding access to information on 
request must be considered.  

Regulation (EC) No 1049/2001 lays down a general regime for access to documents. 
Due to the legal base being Article 255 EC Treaty, Regulation (EC) No 1049/2001 
applies only to Parliament, the Council and the Commission and, by extension, to the 
Community  Agencies.  On  the  other  hand,  the  provisions  of  Regulation  (EC)  No 
1367/2006  regarding  access  to  environmental  information  apply  to  all  Community 

23 

24 
25 

See Article 19 of Regulation (EC) No 384/96, Article 29 of Regulation (EC) No 2026/97 and Article 9 
of Regulation (EC) No 3285/94. 
Case T-353/94, Postbank v Commission, [1996] ECR II-921, paragraph 87. 
OJ L 264, 25.9.2006, p. 13. 

EN 

9 

   EN 

 
                                                 
institutions and bodies. There will be a certain degree of overlap between Regulation 
(EC) No 1049/2001, the new Regulation (EC) No 1367/2006 and voluntary rules on 
access  adopted  by  other  institutions  and  bodies.  It  should  also  be  noted  that  the 
exceptions  to  the  right  of  access  laid  down  in  both  Regulations  do  not  completely 
coincide. 

As regards the scope and beneficiaries, the situation may be represented as follows: 

Legal 
framework 

Institutions and bodies covered 

Regulations 
(EC) No 
1049/2001 +
(EC) No 
1367/2006 

Parliament 
Council 
Commission 
Agencies 

Scope and beneficiaries 

Any natural or 
legal person 

EU 
citizens 
and 
residents 

Any document 

Voluntary 
rules 
+ 
Regulation 
(EC) No 
1367/2006 

Court of Auditors 
European Central Bank   
European Investment Bank 
European  Economic  and  Social  Committee
Committee of the Regions 
European Ombudsman  

Any 
document 

Only 
environmental 
information 

Regulation 
(EC) No 
1367/2006 

European Data  Protection Supervisor 
Court  of  Justice  (except  when  acting  in  a 
judicial capacity) 

Only environmental 
information 

3.2. 

Transparency of Council meetings 

The  European  Council,  at  its  meeting  on  15  and  16  June  2006,  underlined  the 
importance  of  enabling  citizens  to  get  first-hand  insight  into  EU  activities,  notably 
through  further  increasing  transparency.  On  15  September  2006,  the  Council 
amended its rules of procedure in order to implement this new policy. Under the new 
measures,  the  Council's  public  deliberations  and  debates  will  be  broadcast  on  the 
Internet in all the official EU languages. Openness of Council meetings goes beyond 
the  scope  of  Article  255  EC  Treaty  and  Regulation  (EC)  No  1049/2001.  However, 
the  fact  that  meetings  are  held  in  public  will  have  an  impact  on  disclosure  of 
documents being considered at such meetings. 

EN 

10 

   EN 

 
 
 
 
 
 
 
 
PART TWO : OPTIONS FOR IMPROVING THE ACCESS RULES 

4. 

OVERALL ASSESSMENT 

Taking  into  account  the  experience  gained  with  the  implementation  of  Regulation 
(EC) No 1049/2001, the case law of the Court of First Instance and of the Court of 
Justice and also the recent developments with regard to transparency in the European 
institutions, it is appropriate to consider amendments to the regime for public access 
to documents, with a view to: 

•  improving access to registers and direct access to documents;  

•  better informing the public at large on the activities of the European institutions; 

•  clarifying the legal framework; 

•  striking the right balance between the public’s right to know and the protection of 

legitimate public and private interests. 

5. 

A MORE ACTIVE DISSEMINATION POLICY 

5.1. 

Transparency in the legislative process 

The  main  purpose  of  laws  on  freedom  of  information  is  to  enable  citizens  to 
participate more closely in democratic decision-making. Therefore, the first priority 
with  regard  to  the  implementation  of  Regulation  (EC)  No  1049/2001  has  been  to 
make the legislative process of the EU institutions more transparent and more easily 
accessible to the general public. The public registers of the three institutions contain 
mainly  references  to  documents  established  and  exchanged  between  institutions  in 
the framework of EU lawmaking. Many of these documents are accessible with their 
full  text.  This  practice  is  consistent  with  Article  12  of  Regulation  (EC)  No 
1049/2001,  which  stipulates  that  the  institutions  “shall,  as  far  as  possible,  make 
documents directly accessible to the public”, in particular “legislative documents”.  

Since the definition of "legislative documents" in Article 12 of the Regulation lacks 
precision,  the  Regulation  could  be  amended  in  order  to  define  which  types  of 
documents  are  part  of  the  legislative  process  and  should  in  principle  be  directly 
accessible in full and at which stage of the procedure. It is already foreseen that the 
EUR-LEX site will cover more preparatory legislative documents.  

On the other hand, the information which is available is not always easily accessible 
to  citizens.  Parliament,  the  Council  and  the  Commission  are  currently  looking  at 
ways of providing easier access to legislative documents. 

5.2. 

Active dissemination in other areas 

The  institutions  disseminate  large  amounts  of  information  on  their  websites.  Press 
releases,  which  explain  complex  or  technical  issues  in  plain  language,  are  valuable 
sources of information for the general public. 

EN 

11 

   EN 

 
This dissemination is  largely  voluntary. However, the  new Regulation applying the 
Århus  Convention  to  the  EC  institutions  and  bodies  contains  provisions  regarding 
active dissemination of environmental information26. 

The  institutions  could  develop  a  more  systematic  policy  of  making  documents 
directly  accessible  to  the  public  in  the  most  user-friendly  way.  This  would  require 
additional human and financial resources as regards the management of the workflow 
and of databases and websites. On the other hand, as the experience of the Council 
suggests,  it  could  reduce  the  number  of  access  requests  or,  at  least,  make  the 
handling of requests less burdensome. 

The main websites operated by the institutions are:  

EUR-LEX (EU Law): 
http://eur-lex.europa.eu/en/index.htm 

Legislation in preparation: 
http://ec.europa.eu/prelex/apcnet.cfm?CL=en 

EP legislative Observatory:   
http://www.europarl.europa.eu/oeil/ 

Register of European Parliament documents: 
http://www.europarl.europa.eu/registre/recherche/RechercheSimplifiee.cfm?langue=
EN 

Register of Council documents: 
http://www.consilium.europa.eu/cms3_applications/showPage.asp?lang=en&id=549
&mode=g&name= 

Register of Commission documents: 
http://ec.europa.eu/transparency/regdoc/registre.cfm?CL=en&testjs=1 

Register on comitology: 
http://ec.europa.eu/transparency/regcomitology/registre.cfm?CL=en 

26 

Regulation (EC) No 1367/2006, Article 4. 

EN 

12 

   EN 

 
 
 
 
 
 
 
                                                 
Question 1:  Would  you  qualify  the  information  provided  through  registers 

and on the websites of the institutions as 

A 

B 

C 

D 

comprehensive and easy to access? 

comprehensive but difficult to find? 

easy to access but insufficient as regards their coverage? 

insufficient and difficult to access? 

Other comments regarding registers and websites: 

Question 2:  Should more emphasis be put on promoting active dissemination 
of  information,  possibly  focussed  on  specific  areas  of  particular 
interest? 

YES 

NO 

No opinion 

Explanation and comments: 

6. 

INTEGRATING  THE  RULES  ON  ACCESS  TO  ENVIRONMENTAL  INFORMATION  INTO 
THE GENERAL SYSTEM OF ACCESS TO DOCUMENTS 

As mentioned in Section 3.1, there are some differences between the Regulation and 
the  Århus  Convention.  As  regards  access  to  information,  the  Convention  contains 
specific provisions on active dissemination of environmental information, which go 
beyond  the  obligation  to  provide  information  on  demand.  The  co-existence  of 
Regulation  (EC)  No  1049/2001  and  Regulation  (EC)  No  1367/2006  results  in  two 
largely  convergent  and  coherent  regimes,  even  if  some  differences  remain  which 
could lead to divergent interpretations. 

These  differences  could  be  addressed,  either  by  operating  a  specific  regime 
governing  the  right  of  access  to  environmental  information  or  by  amending  the 
provisions  of  Regulation  (EC)  No  1049/2001  in  order  to  clarify  their  full 
compatibility with those of Regulation (EC) No 1367/2006, thus maintaining a single 
regime  for  access  to  environmental  and  other  information  held  by  Parliament,  the 
Council and the Commission. The second option would create more legal clarity for 

EN 

13 

   EN 

 
 
 
 
 
 
 
 
the  citizen,  although  different  regimes  will  exist  for  other  Community  institutions 
and bodies.  

In  order  to  set  up  a  single  access  regime,  the  system  of  exceptions  to  the  right  of 
access laid down in Regulation (EC) No 1049/2001 should be revised. The following 
points should be considered. 

•  The  public  interest  in  disclosure  and,  in  particular,  the  fact  that  the  information 
requested relates to emissions into the environment should be taken into account 
when applying the exceptions.  

•  Where documents are covered by the exception aimed at protecting the financial, 
monetary  or  economic  policy  of  the  Community  or  of  a  Member  State  [Article 
4(1)  a,  fourth  indent  of  Regulation(EC)  No  1049/2001],  the  environmental 
information contained in such documents would nevertheless be disclosed. 

•  A specific exception would be added in order to protect the environment to which 

the requested information relates (such as breeding places of rare species). 

•  Since Member States are bound by the Århus Convention and by the Directive on 
access to environmental information27, it would be contrary to these provisions if 
they were to oppose disclosure of documents which they would have to disclose 
under  national  law.  On  the  other  hand,  the  Regulation  must  take  into  account 
Declaration  No  35  to  the  Treaty  of  Amsterdam.  Member  States  opposing 
disclosure by an institution of documents originating from them could be asked to 
give reasons for their position, based on exceptions, either under Regulation (EC) 
No 1049/2001 or on the basis of their national legislation. 

Question 3:  Would  a  single  set  of  rules  for  access  to  documents,  including 

environmental information provide more clarity for citizens? 

YES 

NO 

No opinion 

Explanation and comments: 

27 

Directive 2003/4/EC. 

EN 

14 

   EN 

 
 
 
 
 
                                                 
7. 

BALANCING INTERESTS 

7.1. 

Public access and the protection of personal data 

It is advisable to await case law regarding the collision of these two rights28 before 
outlining  practical  rules  on  the  handling  of  requests  for  access  to  personal  data. 
However,  within  the  existing  legal  framework,  the  institutions  could  define  criteria 
for the disclosure of personal data, based on the following principles: 

–  there is a public interest in disclosure of the personal data; this could be the case 
where  persons  are  public  office  holders  acting  in  an  official  capacity  and  the 
information  to  be  disclosed  relates  only  to  the  exercise  of  their  official  duties, 
unless there are specific reasons to protect their identity (e.g. investigators);  

–  it is obvious that the disclosure does not affect the person’s privacy or integrity. 

Question 4:  How  should  the  exception  laid  down  in  Article  4(1)(b)  of 
Regulation  (EC)  No  1049/2001  be  clarified  in  order  to  ensure 
adequate protection of personal data? 

A 

B 

C 

Granting  partial  access  to  documents,  expunged  for  personal  data,  is  a 
satisfactory way of balancing transparency and the protection of personal data. 

 The disclosure of personal data should always be assessed under the criteria set 
by the Regulation on the protection of individuals with regard to the processing 
of personal data (Regulation (EC) No 45/2001).  

There  should  be  criteria  for  the  disclosure  of  certain  types  of  personal  data  in 
Regulation (EC) No 1049/2001, where the lawfulness of disclosure does not have 
to be assessed on a case-by-case basis under Regulation (EC) No 45/2001. 

Explanation and comments: 

7.2. 

Public access and commercial or economic interests 

The EC Treaty strikes a balance between the principle of transparency established by 
Article  255  and  the  obligation  of  professional  secrecy  laid  down  in  Article  287, 
which concerns in particular information about undertakings, their business relations 
or cost components. 

This  balance  between  transparency  and  professional  secrecy  is  especially  relevant 
with  regard  to  the  Commission,  which  holds  information  provided  by  or  obtained 
from  private  parties  in  the  framework  of  investigations  in  State  aid,  anti-trust, 
merger, trade defence or anti-fraud cases, as well as in public procurement and grant 
award  procedures.  Appropriate  protection  of  this  information  is  crucial  to  the 

28 

See pending cases mentioned in footnotes 11 and 12. 

EN 

15 

   EN 

 
 
 
 
                                                 
cooperation  of  the  parties  in  these  procedures,  and  hence  the  effectiveness  of 
implementation  of  the  Community  policies  concerned.  Therefore  the  Community 
legislators  have  determined  specific  access  rules  in  relation  to  such  information. 
These  rules  need  to  be  applied  simultaneously  with  the  Regulation  and  coherence 
between the two should be ensured.  

In a judgment of 30 May 200629, the Court of First Instance established criteria for 
defining  the  kind  of  information  falling  within  the  ambit  of  the  obligation  of 
professional secrecy. In accordance with this case law, the Regulation could provide 
that  no  access  can  be  granted  to  documents  containing  information,  known  to  a 
limited number of persons, the disclosure of which is liable to cause serious harm to 
legitimate  interests  of  the  person  who  has  provided  it  or  to  third  parties.  These 
criteria  deserve  to  be  clarified  in  operational  terms,  bearing  in  mind  the  potential 
burden  on  the  legal  or  natural  person  providing  the  information,  whose  views  will 
need  to  be  obtained  prior  to  any  disclosure,  as  well  as  the  inherent  risk  that  the 
potential serious harm to legitimate interests will be more difficult to assess after a 
certain period of time. 

On the other hand, under Regulation (EC) No 1367/2006 applying the provisions of 
the Århus Convention, an overriding public interest in disclosure shall be deemed to 
exist where the information requested relates to emissions into the environment and 
the exception concerns the protection of commercial interests.  

A  particular  case  is  the  protection  of  intellectual  property,  where  international 
agreements apply.  

Question 5:  How should the exception laid down in Article 4(2), 1st indent of 
Regulation  (EC)  No  1049/2001  be  clarified  in  order  to  ensure 
adequate  protection  of  commercial  and  economic  interests  of 
third parties? 

A 

B 

C 

The  current  system  where  the  protection  of  commercial  interests  is  balanced 
against the public interest in disclosure strikes the right balance.  

More weight should be given to the interest in disclosure. 

The current rules do not sufficiently protect commercial and economic interests. 

Explanation and comments: 

7.3. 

Public access and good administration 

Experience has shown that the handling of requests can be burdensome. The purpose 
of  Regulation  (EC)  No  1049/2001  being  to  disclose  information  in  the  public 

29 

Case T-198/03, Bank Austria Creditanstalt AG v Commission, in particular paragraph 71. 

EN 

16 

   EN 

 
 
 
                                                 
interest,  the  institutions  have  to  balance  the  interest  in  disclosure  against  the 
workload  entailed  by  the  handling  of  a  request.  A  situation  where  important 
resources  are  devoted  to  a  limited  number  of  voluminous,  complex  or  otherwise 
burdensome  requests  would  not  be  in  the  public  interest.  Therefore,  it  might  be 
useful to define criteria with regard to the proportionality of access requests. In order 
to  reconcile  transparency  with  the  principle  of  good  administration,  the  following 
parameters could be taken into account: 

•  the volume of the requested documentation 

•  the definition of documents held by the institutions 

•  the effect of time frames on the relevance of exceptions. 

7.3.1.  Excessive requests 

Unlike  many  national  regimes  governing  access  to  documents  or  information, 
Regulation  (EC)  No  1049/2001  has  no  provisions  regarding  excessive  or  improper 
requests. In practice, a concrete examination of the documents of an entire file for the 
purpose  of  public  access  proves  excessively  burdensome  when  compared  to  the 
usefulness of the documents or parts of them that can be disclosed.  

When  handling  a  particularly  voluminous  or  complex  request,  the  institutions  may 
only extend the time limit for a reply by 15 working days or may confer informally 
with  the  applicant  in  order  to  find  a  fair  solution30.  The  latter  provision  could  be 
clarified  in  order  to  enable  the  institutions  to  ask  applicants  either  to  specify  or 
narrow down their request or to accept a realistic time frame for handling it. 

Furthermore,  requests  which  are  clearly  intended  to  block  a  service  in  its  normal 
operations  could  be  considered  as  improper  and  be  rejected  on  that  basis.  Such 
considerations  might  be  particularly  pertinent  as  concerns  the  effectiveness  of  the 
exercise of the Commission's enforcement powers. 

Question 6:  In the light of experiences made so far, is there a case for specific 
provisions  for  handling  requests,  which  are  clearly  excessive  or 
improper, in particular with regard to time frames ? 

YES 

NO 

No opinion 

Explanation and comments: 

30 

Article 6(3) of the Regulation. 

EN 

17 

   EN 

 
                                                 
7.3.2.  Concept of “document held by the institution” 

The  current  definition  of  a  "document  held  by  the  institution"  results  from  the 
combination of the definition of "document" in Article 3(a) of the Regulation and the 
scope as defined in Article 2(3)31. Merging both definitions could clarify the concept 
of a "document held by the institution". 

Two aspects need to be clarified in particular: 

–  the relationship between the definition of a "document held by the institution" and 
the document management rules of that institution, more specifically the rules on 
registration; 

–  the  status  of  information  held  in  databases;  since  an  increasing  amount  of 
information  is  held  in  electronic  databases, the Regulation  could  define  how  the 
content  of  databases  fits  into  the  concept  of  "a  document";  databases  could  be 
considered  as  an  electronic  library;  specific  and  limited  sets  of  information  that 
can  be  extracted  from  a  database  through  a  normal  operating  process  using  the 
existing search tools would be considered as "documents" within the meaning of 
the Regulation. 

Question 7:  With  regard  to  the  content  of  databases,  should  the  concept  of 
"document" cover sets of information that can be extracted  using the 
existing search tools? 

YES 

NO 

No opinion 

Explanation and comments: 

7.3.3.  Accessibility of documents and the passing of time  

There  is  no  indication  in  the  Regulation  of  the  effect  of  passing  of  time  on  the 
application  of  the  exceptions.  A  clear  indication  of  the  effect  of  passing  of  time, 
particularly  in  relation  to  certain  exceptions  (e.g.  inspections,  investigations  and 
audits, court proceedings, pending decisions on non-legislative areas) would make it 
possible to reconcile the interests of transparency with those of good administration 
by avoiding placing an unnecessary burden on the institutions. The Regulation could 
indicate events: 

31 

Article  2(3)  :  This  Regulation  shall  apply  to  all  documents  held  by  an  institution,  that  is  to  say, 
documents  drawn  up  or  received  by  it  and  in  its  possession,  in  all  areas  of  activity  of  the  European 
Union. 
Article  3(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)  concerning  a  matter  relating  to  the 
policies, activities and decisions falling within the institution's sphere of responsibility. 

EN 

18 

   EN 

 
 
                                                 
•  before  which  specific  categories  of  documents  are  manifestly  covered  by 
exceptions,  making  operational  under  the  Regulation  the  means  to  ensure 
consistency  with  principles  which  the  Community  legislator  has  set  down  in 
specific  access  rules  elsewhere,  always  subject  to  the  test  of  overriding  public 
interest under the Regulation; 

•  after which documents become public.  

Question 8:  Should  the  Regulation  indicate  events  before  and  after  which 

exceptions would or would not apply? 

YES 

NO 

No opinion 

Explanation and comments: 

8. 

FINAL COMMENTS 

Please indicate any other comments you would like to make with regard to the 
rules  on  public  access  to  documents  held  by  the  European  Parliament,  the 
Council and the Commission 

EN 

19 

   EN 

 
 
 
ANNEX  

Statistics on the access requests handled by the institutions 

Initial 
requests 

2002 

2003 

2004 

2005 

Parliament 

637(1)

165

186 

298 

2006(2) 

(3) 

Council 

2394

2830

2160 

2100 

2224

Commission

991

1523

2600 

3173 

6712

Parliament 

Confirmatory 
requests 

Council 

Commission

1

43

96

1

45

1 

35 

10 

51 

143

162 

167 

(3) 

40

112

Notes: 

(1)  This figure for initial requests handled by Parliament in 2002 includes requests 

for access to published documents. 

(2)  Figures for 2006 are estimates. 

(3)  Figures concerning the European Parliament are not available yet.  

EN 

20 

   EN