Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents
Date: 2011-03-21
Institutions: European Commission
Subjects: Council of the European Union, European Commission, European Parliament, access to information, document, provision of documents

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EUROPEAN COMMISSION 

Brussels, 21.3.2011 
COM(2011) 137 final 

2008/0090 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 1049/2001 regarding public access to European 
Parliament, Council and Commission documents 

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EXPLANATORY MEMORANDUM 

The Commission submitted a proposal for recasting Regulation (EC) No 1049/2001 
on  30  April  20081.  The  European  Parliament  voted  a  report  containing  a  great 
number  of  amendments,  but  decided  not  to  take  a  vote  on  the  accompanying 
legislative resolution. As a result, there is no position of the European Parliament at 
first reading. 

Following  the  European  elections  of  June  2009,  the  newly  elected  Parliament 
resumed its work on the legislative proposal in accordance with Rule 214 of its Rules 
of  Procedure.  An  amended  draft  report  was  circulated  within  the  European 
Parliament  in  May  2010.  The  Constitutional  Affairs  committee  and  the  Petitions 
Committee of the European Parliament have delivered their opinions on the proposal 
of the Commission on 30 November and 1 December 2010, respectively. The Civil 
Liberties Committee has not yet adopted a draft report. No date has been set for the 
adoption of the position of the European Parliament at first reading. 

The Treaty of Lisbon has entered into force on 1 December 2009. The legal base for 
public  access  to  documents  is  now  Article  15(3)  of  the  consolidated  version  of  the 
Treaty  on  the  Functioning  of  the  European  Union.  This  new  provision  extends  the 
public right of access to documents of all the Union institutions, bodies, offices and 
agencies.  The  Court  of  Justice,  the  European  Central  Bank  and  the  European 
Investment  Bank  are  subject  to  this  provision  only  when  exercising  their 
administrative  tasks.  The  present  Regulation  only  directly  applies  to  the  European 
Parliament,  the  Council,  and  the  Commission.  However  its  application  has  been 
extended to the agencies by virtue of a specific provision in their respective founding 
acts.  Furthermore,  a  number  of  institutions  and  bodies  have  adopted  voluntary  acts 
laying  down  rules  on  access  to  their  documents  which  are  identical  or  similar  to 
Regulation (EC) No 1049/2001.  

With  a  view  to  taking  into  account  this  extension  of  the  institutional  scope  of  the 
public right of access, the Commission has included its proposal of 30 April 2008 for 
a  recasting  of  Regulation  (EC)  No  1049/2001  in  its  Communication  on  the 
Consequences  of  the  entry  into  force  of  the  Treaty  of  Lisbon  for  ongoing  inter-
institutional  decision-making  procedures2.  The  co-legislators  could,  therefore, 
integrate  this  adjustment  to  the  new  Treaty  in  the  course  of  the  ongoing  ordinary 
legislative procedure.  

More than one year after the entry into force of the Treaty of Lisbon, there is still no 
perspective  for  the  adoption  of  a  new  Regulation  regarding  public  access  to 
documents that will replace Regulation (EC) No 1049/2001. The discussions in the 
European  Parliament  and  the  Council  have  shown  strongly  diverging  views  about 
amending the Regulation. 

Even if, in practice, most institutions, bodies, offices and agencies of the European 
Union  apply  Regulation  (EC)  No  1049/2001  or  similar  rules  on  a  voluntary  basis, 

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COM(2008) 229 
COM(2009) 665 

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there is a legal obligation to extend the right of access to all of them in compliance 
with the Treaty. 

Since  most  of  the  institutions,  bodies,  offices  and  agencies  of  the  European  Union 
apply the Regulation or similar rules, the institutional scope of the current Regulation 
can  be  extended  to  all  of  them,  subject  to  the  limits  provided  for  by  the  Treaty 
regarding  the  Court  of  Justice,  the  European  Central  Bank  and  the  European 
Investment Bank. 

The Commission considers, therefore, that Regulation (EC) No 1049/2001 should be 
amended  in  view  of  extending  its  institutional  scope  in  compliance  with  the  new 
legal basis for access to documents provided for under Article 15(3) of the Treaty on 
the Functioning of the European Union without further delay. This amendment does 
not  prejudice  the  ongoing  procedure  for  a  recast  of  Regulation  1049/2001  on  the 
basis of the Commission's proposal from April 2008. 

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2008/0090 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 1049/2001 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  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 15(3) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  general  principles  and  the  limits  on  grounds  of  public  or  private  interests 
governing the public right of access to documents have been laid down in Regulation 
(EC)  No  1049/2001  of  the  European  Parliament  and  the  Council  of  30  May  2001 
regarding  public  access 
to  European  Parliament,  Council  and  Commission 
documents3,  which  was  adopted  on  the  basis  of  Article  255(2)  of  the  Treaty 
establishing the European Community. 

In  accordance  with  that  Article,  Regulation  (EC)  No  1049/2001  only  governs  the 
public right of access to documents of the European Parliament, the Council and the 
Commission. 

Following  the  entry  into  force  of  the  Treaty  of  Lisbon,  Article  255  of  the  Treaty 
establishing  the  European  Community  was  replaced  with  Article  15(3)  of  the  Treaty 
on the Functioning of the European Union. 

The  new  provision  grants  any  citizen  of  the  Union  and  any  natural  or  legal  person 
residing  or  having  its  registered  office  in  a  Member  State  a  right  of  access  to 
documents  of  the  Union  institutions,  bodies,  offices  and  agencies,  whatever  their 
medium,  subject  to  the  principles  and  the  conditions  defined  by  the  legislator  in 
accordance with that Article. However, as regards the Court of Justice of the European 
Union,  the  European  Central  Bank  and  the  European  Investment  Bank,  this  public 
right of access applies only when they exercise their administrative tasks. 

(5) 

Regulation (EC) No 1049/2001 should therefore be amended accordingly, 

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OJ L 145 of 31.5.2001, p. 43. 

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HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 1049/2001 is amended as follows: 

1. 

In Article 1, point (a) is replaced by the following: 

"(a)  to  define  the  principles,  conditions  and  limits  on  grounds  of  public  or  private 
interest  governing the  right  of  public  access  to  documents  of  the  institutions  of  the 
European  Union,  as  defined  in  Article  3  (c),  provided  for  in  Article  15(3)  of  the 
Treaty on the Functioning of the European Union in such a way as to grant the public 
the widest possible access to documents," 

2. 

In Article 2, paragraph 3 is replaced by the following: 

"3.  This Regulation shall apply to all documents held by an institution, as defined 
in  Article  3  (c),  that  is  to  say,  documents  drawn  up  or  received  by  it  and  in  its 
possession,  in  all  areas  of  activity  of  the  European  Union.  As  regards  the  Court  of 
Justice  of  the  European  Union,  the  European  Central  Bank  and  the  European 
Investment  Bank,  this  Regulation  shall  apply  only  when  they  exercise  their 
administrative tasks." 

3. 

In Article 3, the following point (c) is added: 

'institutions'  shall  mean  institutions,  bodies,  offices  and  agencies  of  the 

"(c) 
European Union, including the European External Action Service." 

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

Article 2 

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

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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