European Scrutiny Committee Contents


6 Public access to documents

(29666)

9200/08

COM(08) 229

Draft Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents

Legal baseArticle 255 EC; codecision; QMV
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letter of 11 December 2008
Previous Committee ReportHC 16-xxvi (2007-08), chapter 2 (2 July 2008); but see (28576) HC 16-ix (2007-08), chapter 10 (23 January 2008)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

6.1 Regulation (EC)1049/2001[17] 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.

6.2 Access to information relating to the environment is the subject of an international agreement, the Århus Convention 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.

6.3 The proposed amendments would 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[18]" until the investigation is closed or the act has become definitive. A new definition of "document" 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".[19]

6.4 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.

6.5 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.

6.6 When we considered the proposals on 2 July we regretted the then Minister's reticence to set out more fully the Government's reaction to the proposals, noting that the Minister had stated only that Government was still considering its position on the detail of the proposals and that any changes to its functioning needed to be carefully considered. We held 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 and the extent to which the definition of "document" had been narrowed, and if it would include material which comes into the possession of the institutions by whatever means. We also asked for the Minister's views on the implications of the new Article 4(5) for UK civil servants, including those in the devolved administrations.

The Minister's reply

6.7 In her letter of 11 December the present Minister for Europe at the Foreign and Commonwealth Office (Caroline Flint) provides us with a full analysis of the Government's views on the various issues raised by the proposed amendments.

6.8 On the question of amending Article 2 to extend the range of persons who may make a request, the Minister notes that at present only EU citizens or persons resident within the EU may make an application, but that in reality it is difficult to establish whether a person making a request is so entitled. The Minister adds that the Government would support the change so as to make the right of access available to any natural or legal person regardless of nationality or residence, provided this can be achieved within the provisions of the Treaty.[20]

6.9 The Minister explains that the Government supports the proposal to exclude court documents (other than those submitted by the institutions), as this is a matter governed by the Statute of the European Court of Justice. The Government also supports the proposal to exclude documents relating to live investigations, and documents seized in the course of an investigation, from the scope of Article 2(6).

6.10 The Minister notes that the proposed new definition of "document" would exclude draft documents and would diverge from the Freedom of Information Act 2000. The Minister comments that the Commission intends the amendment to reduce the burden on the institutions by reducing the number of "documents" which must be considered before responding to a request, but adds that she does not consider this to be a compelling justification and that, on the basis of the arguments advanced by the Commission to date, the UK does not propose to support this amendment. The Minister explains that the Government does, however, support the other proposed change to Article 3(a) which would include data held electronically within the definition of "document" and therefore within the scope of the Regulation, in so far as this does not involve the creation of new information through research.

6.11 The Minister further comments that the change proposed to Article 3(a) so as to exclude draft documents would only concern documents originating from an EU institution and would not affect the position of documents provided by Member States and that the current position, which is not affected by the proposed amendments, is that the Regulation applies to documents in the possession of the EU institutions, irrespective of their origin.

6.12 The Minister adds these further detailed comments:

"The Government also has concerns on the issue of the interaction between the Access to Documents Regulation and the Data Protection legislation raised in Article 4(5) of the recast proposal. The Commission's proposal would potentially result in the disclosure of names and details of civil servants attending meetings with an EU institution. Where a request made under the Access to Documents Regulation includes personal data, the Government believes that the Data Protection Regulation should take primacy. We believe there should be a presumption in favour of privacy for all personal data, with exemptions considered on a case-by-case basis consistent with the Data Protection Regulation. Such an approach would be consistent with the UK's approach under its FOI legislation and the Data Protection Act.

"The Government will also be seeking to ensure adequate protection for legal advice (amended Article 4(2)).

"On Member States' right to veto the disclosure of documents that they have provided to an institution (amended Article 5(2)), the Government's concern is to ensure that documents originating from the UK are only disclosed with the agreement of the UK. It is in the national public interest that Member States be able to protect their positions in negotiations, as well as ensuring that information is handled in a way that would not be discordant with domestic approaches. Therefore, the Government's position is that, in any given case, the institution in question should be required to accept Member States' objections, provided that reasons have been given. At the very least, the right of the institution to assess the adequacy of the reasons given by the Member State should be limited to establishing that they fall within one of the grounds specified in the Regulation, but not to assess the weight of the objection.

"Finally, on the issues of 'bulk' requests (Article 6(2)) and time limits for replying to confirmatory applications (Article 8), the Government proposes to support the Commission's proposals."

Conclusion

6.13 We thank the Minister for her detailed and helpful analysis of the proposed amendments to the Regulation on public access to documents. Whilst we agree with the substance of the proposed amendment to Article 2 so as to give rights of access to those who are not EU citizens or resident in the EU, we consider that there is a serious issue as to whether this may be done under Article 255EC, which refers specifically to citizens of the Union and any natural or legal person residing or having its registered office in a Member State. We should be grateful for any further comment the Minister may wish to offer on this point.

6.14 We agree with the Minister that there appears to be no compelling justification for excluding draft documents generated by the institutions. We also support the point the Minister makes that in cases where a document might reveal personal data, the legal provisions on data protection should have primacy with exceptions considered on a case-by-cases basis. We further consider that the Minister makes a strong point that a Member States' objections to disclosure of its own documents should not be re-assessed by the institution holding the document.

6.15 We shall look forward to a further account, in due course, of the negotiations on this proposal.


17   OJ No. L145, 31.05.01, p.43. Back

18   Such as, for example, a Commission decision addressed to an individual. Back

19   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

20   There is, arguably, some doubt over this as Article 255EC refers specifically to citizens of the Union and any natural or legal person residing or having its registered office in a Member State. Back


 
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