2 Public access to documents
| (29666)
9200/08
COM(08) 229
| Draft Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents
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| Legal base | Article 255 EC; codecision; QMV
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| Document originated | 30 April 2008
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| Deposited in Parliament | 9 May 2008
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 27 May 2008
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| Previous Committee Report | None; but see (28576) HC 16-ix (2007-08), chapter 10 (23 January 2008)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
2.1 Regulation (EC) No. 1049/2001[4]
provides for a right of access by EU citizens or legal persons
residing or having their registered office in a Member State to
European Parliament, Council or Commission documents. The right
of access applies to all documents in the possession of one or
more of the institutions, including documents received by an institution
from a Member State or third party. The right of access is subject
to a number of exceptions and limitations relating to such matters
as data protection, intellectual property, duties of confidence,
the protection of investigations and the decision-making process.
2.2 Access to information relating to the environment
is the subject of an international agreement on Access to Information,
Public Participation in Decision-making and Access to Justice
in Environmental Matters of 25 June 1998 (the Århus Convention).
By virtue of Regulation (EC) No. 1376/2006 of 6 September 2006,
the provisions of the Århus Convention apply to Community
institutions and bodies with effect from 28 June 2007.
2.3 The Commission published a Green Paper in
2007 reviewing the operation of Regulation (EC) No. 1049/2001
and seeking views on the alignment of the Regulation with the
provisions of the Århus Convention. The Green Paper also
suggested that the reference to "legislative documents"
in Article 12 of the Regulation (which provides for direct access
to such documents) lacked precision[5]
and that the Regulation could be amended to define which documents
formed part of the legislative process. We considered the Green
Paper on 6 June 2007 and 23 January 2008 and noted that the Government
supported the creation of a single set of rules for access to
documents, including those on environmental issues.
The proposed amendments to Regulation 1049/2001
2.4 The proposed amendments would first make
the right of access available to any natural or legal person,
regardless of nationality or State of residence (Article 2(1)).
Article 2 is further amended by the addition of a new Article
2(5) which excludes documents submitted to "Courts"
by parties other than the institutions. A new Article 2(6) also
excludes documents forming part of the administrative file of
an investigation or of "proceedings concerning an act of
individual scope"[6]
until the investigation is closed or the act has become definitive.
2.5 The existing definition of "document"
appears to have been maintained in Article 3a. However, whilst
the existing definition does not qualify the term "document"
by reference to its provenance, the new definition refers to a
document as being one which is "drawn-up by an institution
and formally transmitted to one or more recipients or otherwise
registered" or one which is "received by an institution".[7]
2.6 The exceptions in Article 4 have been amended
in a number of respects. First, an exception has been added relating
to the protection of the public interest in the environment, such
as the breeding sites of rare species. The exception corresponds
to the requirements of the Århus Convention, and Article
6(2) of Regulation 1367/2006. For the same purpose, it is also
now provided that the exception for the protection of commercial
interests will be overridden in the public interest where the
information relates to emissions into the environment. Secondly,
a new provision (Article 4(5)) is added which provides that "names,
titles and functions of public office holders, civil servants
and interest representatives in relation with their professional
activities shall be disclosed unless, given the particular circumstances,
disclosure would adversely affect the persons concerned".
The rest of the new Article 4(5) provides that other personal
data shall be disclosed in accordance with EC data protection
principles.
2.7 A new Article 5(2) deals with the situation
where a document originates from a Member State and is held by
an institution. Whereas the existing Article 4(5) provides that
a Member State may request an institution not to disclose such
a document, the new Article 5(2) requires the Member State to
be consulted and for disclosure of the document unless the Member
State gives reasons for withholding it, based on the exceptions
under Article 4 of the Regulation or specific provisions in its
national law.
2.8 A number of procedural changes are made to
deal with applications which are not sufficiently precise (in
which case the time limits begin to run once the application has
been clarified), to extend the time from 15 to 30 days for handling
an application to reconsider a refusal to disclose a document.
The Government's view
2.9 In his Explanatory Memorandum of 27 May 2008
the Minister for Europe at the Foreign and Commonwealth Office
(Jim Murphy) describes the proposed amendments and indicates that
the Government is still considering its position on the detail
of the proposals. The Minister also comments that the Government
believes that in general, the current Regulation functions well
and that any changes to its functioning "need to be carefully
considered". The Minister adds that "in broad terms,
the UK would welcome a clearer demarcation between the legal rules
applicable to personal data and the rules applying to access to
documents".
Conclusion
2.10 Given the subject-matter, there is more
than a little irony in the Minister's reticence to set out more
fully the Government's reaction to the proposals, and we recall
that we encountered the same reticence in our consideration of
the Green Paper.
2.11 We shall hold the document under scrutiny
pending a further reply from the Minister setting out in more
detail the results of the Government's consideration, notably
on the important question of the boundary between the protection
of personal data and the rules on access to documents.
2.12 We would be grateful if the Minister
would offer a view on the extent to which the definition of "document"
has been narrowed, and if it would include material which comes
into the possession of the institutions by whatever means. We
should also be grateful for the Minister's views on the implications
of the new Article 4(5) for UK civil servants, including those
in the devolved administrations.
2.13 We shall hold the document under scrutiny
pending the Minister's reply.
4 OJ No. L145, 31.05.01, p.43. Back
5
"Legislative documents" are defined as "documents
drawn up or received in the course of procedures for the adoption
of acts which are legally binding in or for the Member States". Back
6
Such as, for example, a Commission decision addressed to an individual. Back
7
Article 2(3) - which is not materially amended - provides for
the Regulation to apply to "all documents held by an institution"
i.e. "documents drawn up or received by it and in its possession". Back
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