Select Committee on European Scrutiny Thirteenth Report


COM(00) 30

Draft Council Regulation regarding public access to documents of the European Parliament, the Council and the Commission.
Legal base: Article 255(2) EC; co-decision; qualified majority voting
Department: Foreign and Commonwealth Office
Basis of consideration: Minister's letters of 4 and 19 April and SEM of 20 April 2001
Previous Committee Report: HC 23-xiii (1999-2000), paragraph 7 (5 April 2000), HC 23-xxvii (1999-2000), paragraph 7 (25 October 2000) and HC 23-xxxi (1999-2000), paragraph 7 (29 November 2000)
To be discussed in Council: 11-12 June 2001
Committee's assessment: Politically important
Committee's decision: Cleared


  9.1  The Treaty of Amsterdam inserted a new Article 255 into the EC Treaty giving a citizen of the Union, or any natural or legal person residing in a Member State, a right of access to European Parliament, Council and Commission documents. This right of access was made subject to general principles and limits on grounds of public or private interest governing the right of access as may be determined by the Council acting within two years of the entry into force of the Treaty of Amsterdam. The draft Regulation under consideration should, therefore, have come into operation by 1 May 2001.

  9.2  We considered an earlier version of the proposed Regulation on 5 April 2000, when we asked the Minister for a sharper analysis of the text and, in particular, of the impact of the exceptions proposed to the right of access. We considered the draft Regulation again on 25 October and 29 November 2000, when we held the document under scrutiny as negotiations were continuing which might lead to further amendments to the text.

  9.3  The Minister of State at the Foreign and Commonwealth Office (Mr Keith Vaz) wrote to us on 4 and 19 April to inform us of progress in the negotiations. The Minister's letter of 19 April informed us that, as a result of the Presidency's ongoing contacts with the European Parliament, a Presidency compromise text had emerged. Although this text could not be deposited formally, we have been supplied with a copy and have based our consideration on this text, which has been further explained by the Minister's Supplementary Explanatory Memorandum of 20 April 2001.

The Presidency text

  9.4  The Presidency text follows the format of the earlier versions of the draft Regulation, but there have been a number of substantial amendments. Article 1 sets out the purpose of the Regulation and refers to defining the principles, conditions and limits on grounds of public or private interest governing the right of access to documents "in such a way as to ensure as wide access to documents as possible".

— the right of access

  9.5  Article 2 sets out the scope of the right and the persons who may exercise it. Article 2(1) provides that any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has a right of access to European Parliament, Council and Commission documents, subject to the principles, limits and conditions defined in the Regulation. Article 2(2) provides that the institution may, subject to the same conditions, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State.

  9.6  The material scope of the right is defined in Article 2(3). The Regulation accordingly applies 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 2(5) introduces a reference to "sensitive" documents. As defined in Article 9(1), these are documents which originate from the institutions, Member States, non-Member States or international organisations and are classified "Top Secret", "Secret" or "Confidential" in accordance with the rules of the institution concerned. Such documents are made subject to the special treatment provided for under Article 9.

  9.7  Article 3 contains definitions of "document" and "third party". "Document" is defined as "any content whatever its medium...concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility". "Third party" is defined as "any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and non-Member States".

— exceptions to the right of access

  9.8  Article 4 contains exceptions to the broad scope of the right under Article 2. These exceptions need also to be read with the special regime for "sensitive" documents under Article 9.

  9.9  Article 4(1) provides that the institutions shall refuse access to documents where disclosure would undermine the protection of:

    "(a)  the public interest as regards:

    "—  public security;

    "—  defence and military matters;

    "—  international relations; and

    "—  the financial, monetary or economic policy of the Community or a Member State.

    "(b)  privacy and the integrity of the individual, in particular as protected by Community legislation regarding the protection of personal data."

  9.10  Article 4(2) provides that the institutions shall refuse access to a document where disclosure:

    " would undermine the protection of:

    "—  commercial interests of a natural or legal person, including intellectual property;

    "—  court proceedings and legal advice; and

    "—  the purpose of inspections, investigations and audits;

    unless there is an overriding public interest in the disclosure."

  9.11  Article 4(2) therefore differs from Article 4(1) in that, notwithstanding any undermining of the particular interests referred to in Article 4(2), access may nevertheless be granted if there is an overriding public interest in the disclosure.

  9.12  Access to internal documents which form part of the institution's decision-making process is dealt with in a similar way. Article 4(3) provides that access to a document drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if its disclosure would seriously undermine the institution's decision-making process. The same applies to documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution where the decision has already been taken. However, access may be granted in either case if there is an overriding public interest in the disclosure.

  9.13  Where a document originates with a third party (as defined), Article 4(4) requires the institution to consult the third party with a view to assessing whether an exception under Article 4(1) or 4(2) applies, "unless it is clear that the document shall or shall not be handed out". Where a document originates with a Member State, that Member State may request the institution under Article 4(5) not to disclose the document without its prior agreement.

  9.14  Article 4(6) and 4(7) limit the effect of the exceptions. Article 4(6) provides that if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released. Article 4(7) provides that the exceptions in Article 4(1) to (3) are to apply only for the period during which protection is justified on the basis of the content of the document. Except in relation to sensitive documents and those relating to the privacy of an individual or the commercial interests of a natural or legal person, the exceptions expire after 30 years.

— applications

  9.15  Where a Member State, rather than an institution, receives an application it shall, by virtue of Article 5, consult the institution from which the document originated in order to take a decision in accordance with its national law which does not jeopardise the attainment of the objectives of the Regulation. Article 6 makes provision as to the procedure for making an application, but there is no requirement on the applicant to state reasons for his application.

  9.16  Article 7 imposes time limits of 15 working days for responding to applications. Where an application is refused, or where it is not dealt with within the time limit, the applicant becomes entitled under Article 8 to make a confirmatory application. If a confirmatory application is refused in whole or in part, the institution is to inform that applicant of the remedies open to him. The remedies include instituting proceedings under Article 230 EC against the institution concerned and making a complaint to the Ombudsman under Article 195 EC.

— treatment of sensitive documents

  9.17  Article 9(1) defines "sensitive documents" as documents originating from the institutions, Member States, non-Member States, or international organisations which are classified "Top Secret", "Secret" or "Confidential" in accordance with the rules of the institution concerned. The relevant rules are those which "protect essential interests of the European Union or of one of its Member States in the areas covered by Article 4.1(a), notably public security, defence and military matters".[10] Article 9(3) provides that access to a sensitive document may be granted only after it has been declassified in accordance with the rules of the originating institution, and a sensitive document shall be registered[11] or released only with the consent of the originator (Article 9(4)).

  9.18  A decision by an institution to refuse access to a sensitive document "shall be reasoned in a manner which does not harm the interests protected in Article 4" (Article 9(5)), and Member States are required to take appropriate measures to ensure that the principles of Articles 4 and 9 are respected when handling applications for sensitive documents (Article 9(6)).

— means of granting access, registers

  9.19  Article 10 makes provision on the means of access to documents. According to his preference, an applicant may obtain access to a document by inspection or receiving a copy, including in electronic form where this is available. A charge may be made for copying documents of more than 20 pages in length, but otherwise access is to be granted free of charge. Where a document has already been released, the institution may fulfil its obligations under the Regulation by informing the applicant as to how he may obtain the requested document. Documents shall be supplied in an existing version and format, or in an alternative format such as Braille, large print or tape, having regard to any preference expressed by the applicant.

  9.20  Article 11 requires each institution to provide public access, in electronic form, to a register of documents. The register is to contain a reference number for each document, the subject matter and/or a short description of its content, and the date on which it was received or drawn up and entered into the register.

  9.21  The remaining provisions of the Regulation (Articles 12 to 19) are concerned with electronic access, publication of documents in the Official Journal in addition to those required to be published under Article 254 EC, information to the public, reproduction, reports and administrative practice in the institutions.

The Government's views

  9.22  In his Supplementary Explanatory Memorandum of 20 April 2001, the Minister of State at the Foreign and Commonwealth Office (Mr Keith Vaz) explains the course of the negotiations and gives a description of the main changes to the draft Regulation which are made by the Presidency compromise text.

  9.23  The Minister points out that the scope of Article 2 has been broadened so as to permit natural or legal persons not resident or having a registered office in a Member State to make applications under the Regulations as well as those who are so resident. The material scope of Article 2 has also been amended to include all documents held or drawn up by an institution in all areas of activity of the European Union, including those prepared for internal use, and those originating from third parties, and applies retrospectively to all such documents. A reference to "sensitive documents" has been added to make clear that, although the Regulation applies to all documents, some documents may require special treatment due to the sensitive nature of their contents.

  9.24  The Minister further explains that the list of exceptions in Article 4 has been amended, and that a public interest override now applies to some of the exceptions. As the scope of the Regulation now applies to all documents, including those for internal use, a new exception has been introduced to cover documents relating to decisions which have not been taken as well as opinions for internal use as part of deliberations and preliminary consultations on decisions which have been taken. The purpose of the exception is explained by the Minister as being to provide the institutions with the "space to think" necessary for them to develop policy. These exceptions are also subject to a public interest test. In relation to Article 4(5), the Minister explains that the Member States felt very strongly that, given Declaration 35 to the Amsterdam Treaty,[12] they should have the right to request an institution not to disclose a document originating from them. This right is not extended to all third parties but, unless it is clear that a document can or cannot be released, consultation with the third party is required. Provision had been made in the earlier version of the draft Regulation for access to those parts of a document not covered by an exception, but the Minister points out that the exceptions are now subject to a general limit of time of 30 years.

  9.25  The applications procedure set out in Articles 6, 7, 8 and 10 is described by the Minister as having been made more "user-friendly". An applicant will not be required to state reasons for his application, and the time limit for response has been reduced to 15 days. Charges for exercising the right of access have been limited to the real cost of producing and sending of copies of documents more that 20 A4 pages in length. Otherwise, access is to be free. The Minister also points out that a failure to respond to a confirmatory application will no longer be treated as a positive response, since this could have resulted in documents which would otherwise have been withheld being released through administrative errors.

  9.26  The Minister gives a detailed explanation of the effect of the new Article 9 dealing with the treatment of sensitive documents. He points out that since all documents, including those which are highly classified, are now subject to the Regulation, a new Article has been added to ensure that such sensitive documents are adequately protected. The Minister explains that "sensitive" documents are defined as documents classified as "Top Secret", "Secret" or "Confidential" in accordance with the rules of the institution concerned. Applications for "sensitive" documents will be assessed against the criteria of exceptions set out in Article 4, and the Minister concludes as follows:

    "So classification is not in itself a reason for rejecting an application: if the exceptions set out in Article 4 do not apply to a specific document, it will be declassified and released."

  9.27  However, the Minister also explains that "sensitive" documents will only be registered or released with the consent of the originator.

  9.28  On the remaining Articles of the draft Regulation, the Minister points out that a new Article 11 has been added to set out how and when the institutions should create and maintain a register of their documents. Article 12 is also a new provision to encourage the institutions to make as many documents as possible directly accessible to the public by electronic means or through a register. A further new provision is Article 13 which sets out which documents should be published "as a matter of course" in the Official Journal.

  9.29  On the policy implications of the draft Regulation, the Minister makes the following comment:

    "HMG is strongly in favour of this Regulation. It marks a big step forward in providing the public with greater access to EU documents. The text of the Regulation has improved in principle a great deal during the course of the negotiations. HMG foresees no difficulty with adopting the Regulation as set out in the Presidency compromise text."


  9.30  We thank the Minister for his helpful Supplementary Explanatory Memorandum and for his efforts to keep us informed of the progress of negotiations on this Regulation.

  9.31  It is self-evident that rules on freedom of information have to compromise between competing interests. We note some difficulties to which the Presidency compromise text may give rise, but overall we recognise that it does mark an improvement in favour of openness compared with the earlier text.

  9.32  We note the Minister's remarks that the classification of a document is not in itself to be a reason for rejecting an application, and on the possibility that "sensitive" documents might be declassified and released if the exceptions set out in Article 4 do not apply. However, it seems to us to be rather unlikely that a "sensitive" document would be released, except in circumstances where the classification was no longer appropriate. This consideration, taken together with the provision that a "sensitive" document may only be registered or released with the consent of the originator, makes it apparent that disclosure will depend in practice on the classification decision taken by the originator of the document.

  9.33  We welcome the removal of some of the exceptions formerly in Article 4, particularly the exception relating to the stability of the legal order of the Community. We also welcome the addition of the provision for disclosure, notwithstanding the exception, if there is an overriding public interest in such disclosure. We regret that this public interest override does not apply more widely to the exceptions in Article 4(1), so as to apply to defence, international relations and financial, monetary or economic policy. In this regard, the Regulation compares unfavourably with the Freedom of Information Act 2000.

  9.34  These difficulties notwithstanding, we accept that the present text represents the best available compromise and do not think that any purpose would be served by withholding clearance beyond this late stage. We therefore clear the document.

10   For the rules on security of information held by the Council, see Council Decision 98/319/EC of 27 April 1998 (OJ No. L 140, 12.5.98, p.12. New security regulations are under consideration by the Council, see (21909) 14197/00; HC 28-vi (2000-01), paragraph 12 (14 February 2001).  Back

11   Registers are provided for in Article 11. Back

12   "The Conference agrees that the principles and conditions referred to in Article 191a(1) of the Treaty establishing the European Community (now Article 255(2)EC) will allow a Member State to request the Commission or the Council not to communicate to third parties a document originating from that State without its prior agreement." Back

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