Select Committee on European Communities Sixteenth Report


The importance of access to documents in the Union order

172. There would seem to be little room for argument as to the political importance of the right of access to documents at Union level. Article 1 of the Treaty on European Union (the Maastricht Treaty) identifies the constitutional significance of openness in the Union. The European Council has called on the Council and Commission on a number of occasions to give effect to that principle, in particular by giving citizens the right of access to documents. The rationale behind the recognition of the importance of public access was most clearly stated in Declaration 17 of the Maastricht Treaty, which emphasised that "transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration". That is developed in recital 2 of the draft Regulation, which provides:

"Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable vis-à-vis the citizen in a democratic system."

The point is developed further in recital 7.[51]

The wider context of fundamental rights

173. The Amsterdam Treaty has entrenched the concept of fundamental rights as the basic building block of the European Union. Article 6 (1) declares that the Union "is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States." In that context, as our work on the draft EU Charter of Fundamental Rights emphasised, the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR), has a special role to play. Its potential significance for the proposed Regulation on access to documents should not be overlooked.

174. The ECHR provides relevant legal criteria against which to evaluate the draft Regulation. Article 10 of the ECHR guarantees the right to freedom of expression. This right includes the right to receive and impart information and ideas through any medium of communication, without unnecessary interference by public authority and regardless of frontiers. It is not confined to citizens but protects the rights of everyone within the jurisdiction of the State concerned. Article 10 does not as such guarantee a general right of access to information. However, Article 8 guarantees personal rights of access to information in particular circumstances, for example, access to confidential records needed to enable the individual to establish his identity as part of his private life, and to information about health risks from illegal toxic industrial emissions.

A general principle of Community law

175. It may be going too far to say that the right of public access to documents is a general principle of Community law. The Court of Justice has noted that "the domestic legislation of most Member States now enshrines in a general manner the public's right of access to documents held by public authorities as a constitutional or legislative principle".[52] The Court of First Instance has spoken of "the general principle" that the public have access to Council and Commission documents.[53] The Court of Justice itself has not gone so far, though it has described political and legislative developments at Union level as conforming to a "trend, which discloses a progressive affirmation of individuals' rights of access to documents held by public authorities".[54]

176. Such statements, we suggest, have now to be read in the context of Article 1 of the Treaty on European Union (as amended by the Treaty of Amsterdam): "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible…". This clearly demonstrates the fundamental nature of the principle of transparency and openness in the constitutional order of the Union. The potential recognition, in turn, of the right of access to documents as a general principle of Community law has conditioned our approach to the draft Regulation. The "general principles and limits" that might, pursuant to Article 255(2) EC, be placed on access to EU information under the Regulation should also take account of the principles of legal certainty and proportionality. Above all, the Regulation should recognise explicitly the concept of a fair balance between competing or conflicting interests: on the one hand, the individual's right to the widest possible access to documents and, on the other, the public or private interests which may be harmed by disclosure. Where the right of access is limited to protect such interests, the extent of that limitation should be clearly delineated so as to ensure that the limitation goes no further than is necessary to meet pressing needs.

Summary of detailed recommendations

177. The following is a summary of the Recommendations made in Part 3 of the Report.

The principle of openness

The purpose of the draft Regulation is "to widen access to documents as far as possible, in line with the principle of openness". Simple consolidation of the current Code of Practice is not enough. Improvements are needed (para 43).


The Commission's failure to consult prior to the adoption of the draft Regulation was a missed opportunity and has done little to demonstrate a commitment to openness. The Commission should learn from this experience. The negotiation of the draft Regulation and its implementation, including amendment of each institution's Rules of Procedure, should be conducted openly with meaningful consultation of interested parties (para 46).

Relationship with national law

Member States are already bound by a "duty of loyal co-operation" under Article 10 of the EC Treaty. We see no need for recital 12 and recommend its deletion. As under the present Code, some modus vivendi will be necessary to prevent leakage by national administrations of documents that would undermine the EU system. This does not have to be determined in the Regulation but should be left to be developed by the Community Courts (para 53).

Article 1 - General principle of access and beneficiaries

The present wording gives citizens "the right to the widest possible access" to documents "without having to cite reasons for their interest". We doubt whether anything more positive or purposive needs to be said. The strength of Article 1 has, however, to be measured against other Articles, such as Articles 2, 3 and 4 (para 56).

Article 1, while fully respecting the wording of the Treaty (in Article 255), only confers rights of access on citizens and residents of the EU. This limitation appears to be discriminatory and seemingly neglects others outside the Union who have legitimate interests in, and may be affected by, EU activities. The practical significance of the limitation on access may be minimal - applicants do not have to give reasons when applying for a document. But it should not be necessary to resort to fictions in order to obtain access. We see no reason in principle why the Regulation should not match the Code and give rights to all. We recommend the use of Article 308 EC to "top up" Article 255 (para 60).

Article 2 - Scope of the draft Regulation

The removal of the "authorship" rule (so that applicants no longer have to apply to the author of a document for its disclosure) is a step forward. The extent of the benefit for applicants will be dependent on the extent of the exceptions, especially that for confidentiality, in Article 4 (para 62).

We accept that the essential purpose of access to documents is satisfied if documents are already freely (ie generally) available, for example, by reason of their publication in the Official Journal (para 64). There may be a case for retaining prior document identification references in the final published version (para 65).

The "specific rules" clause in the final sentence of Article 2 (2) may operate as an unchecked, and potentially uncheckable, blanket exception from the Regulation (para 71). Its purpose and scope needs to be clarified. Where two regimes (the Regulation and "specific rules") are applicable, the citizen should have the benefit of both and the freedom to elect which procedural route to follow in the particular circumstances. The Regulation should make clear that it establishes a common minimum standard of access to all EU documents. It should include a "standstill" clause to ensure that access under other more favourable regimes cannot be reduced (para 72).

Article 3 - Definitions

"Documents" should be given a wide meaning to ensure that it is not limited to pieces of paper but includes other mediums for recording and storing information, including e-mail. We oppose blanket exclusions for particular classes of documents (para 77). The definition of "documents" proposed in Article 3 would exclude far too much (para 85). Preparatory papers, documents including opinions or advice, and e-mails should not automatically escape the disclosure rules (paras 85 and 88). We accept that some definition or classification of documents might be necessary for determining what to list on the register under Article 9 (para 77).

Notwithstanding that Article 255 EC only gives a right of access to European Parliament, Council and Commission documents, we consider that the principle of openness and the rights of access should apply to all EU institutions and bodies. We recommend widening the scope of the Regulation so as to include the other institutions and bodies by adding Article 308 EC to the legal base (para 94).

Article 4 - Exceptions

We recommend that all exceptions should be discretionary. The Regulation should specify that the institution concerned may refuse access to documents whose disclosure would be likely to be harmful (para 101). In exercising its discretion, the institution should be expressly required to undertake a balancing exercise. The principle of proportionality requires that any exceptions to the right of access as stated in Article 1 of the draft Regulation must be used only to the extent that is objectively necessary and proportionate in a democratic society (para 102).

The list of exceptions appears to go further than the Code of Conduct. Some exceptions are potentially very wide. This is a matter of fundamental concern. The importance of public access for good government and healthy democratic processes should be a paramount consideration when assessing the scope of the exceptions in Article 4. A convincing justification for restricting the exercise of the right of public access must be shown (para 108). The Regulation should be measured against the standards set by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) when defining and limiting the legitimate aims and pressing social needs which may be pursued by public authorities in restricting freedom of information provides helpful guidance. In the absence of cogent and convincing justification, exceptions to the right of public access to EU information should be no wider under the draft Regulation than the exceptions to Articles 8(2) and 10(2) of the ECHR (para 109).

The overall impression given by the long list of exceptions in Article 4 is that secrecy and not openness best serves the public interest, even if this was not the Commission's intention. Article 4 lacks coherence (para 129). Each of the heads of exception needs to be examined critically. As regards the public interest exceptions in paragraph (a), some are unsatisfactory because they are unclear or excessively wide or controversial (para 130). The exception for "requested" confidentiality in paragraph (d) could eliminate any gain from the removal of the authorship rule (by Article 2). The Commission considers that its hands have been tied by Declaration 35 to the Amsterdam Treaty. We consider the Declaration to be contrary to the spirit of openness so frequently invoked by Member States and we see no reason for it to be extended to third parties. We accept the need for an exception for confidentiality but this should be available only where it is objectively justifiable (para 131).

Article 5 - Processing of initial applications

The Regulation should expressly permit applications by electronic means. Decisions (and documents if available in electronic form) could, at the applicant's request, also be communicated by such means. The documents requested should, wherever possible, be enclosed with the decision granting access. A requirement to acknowledge receipt of the request should be considered further (para 136). As regards "repetitive applications", if the applicant is prepared to pay the costs, then the requests should not be automatically rejected. The institutions should be entitled to reject applications which, objectively judged, are an abuse of the system (para 139). The Regulation should require the institutions to process requests as quickly as possible. As an incentive to do so, there should be an obligation on the institutions to produce performance statistics indicating the time taken to process applications (para 143).

An applicant should not be required to make a confirmatory application by reason of the default of the institution concerned in failing to respond to the application within the specified time limits. The sanction for such failure may need to be strengthened. There should be a consistent approach in Articles 5 and 6. In both cases, a failure to reply at all within the set time limits would have the same consequences. Such an approach would remove any incentive to delay at the initial application stage (para 145).

Article 6 - Confirmatory applications and remedies

There is much force in the suggestion that some sort of intermediate dispute resolution procedure to resolve disputes over access at an early stage should be established. This would be in addition to the applicant's right to appeal to the Court or to the Ombudsman. One possibility meriting further examination is to designate the proposed European Data Protection Supervisor as the Access to Documents Supervisor (para 148) We see difficulties in deeming a failure to reply to a confirmatory application a positive decision to grant access but there remains a need for a prompt and effective sanction to ensure full compliance with the procedures and time limits (para 149).

Article 7 - Exercising the right of access

The applicant should have an express right to choose the means of access and, if he or she elects to receive a copy, to specify its form, for example by electronic means (para 151). Exercise of the right of access may be made conditional on the payment of a fee, the level of which may in turn be dependent on such factors as the manner in which access is given and the volume of the material requested. But the institution should be allowed to waive fees in particular cases. It is doubtful whether the details need to be set out in the Regulation itself (para 153). The express reference to providing partial access to documents is to be welcomed (para 155).

Article 8 - Reproduction of documents

There is a need to clarify the essential purpose of Article 8, ie to prohibit reproduction and resale of documents for gain without authorisation. It should be made clear that the provision is not intended to fetter the media or the use of material for academic purposes (para 157).

Article 9 - Information and registers

Registers need to be (a) compulsory (b) readily accessible and (c) workable and user-friendly. The Commission should consult interested parties on the detail (para 163) All "documents" should, in principle, be listed on the register even though some may not be accessible. For practical reasons, a specific definition of "documents" for the purpose of inclusion on the register may have to be added to Article 9 (para 164). The new access regime will need to be publicised. A new edition of the Citizen's Guide should be prepared and widely distributed (para 168).

Article 10 - Rules of Procedure

The detailed implementation of the Regulation in the respective Rules of Procedure of the three institutions will be important. The preparation of amendments to the Rules should itself be an open exercise and, notwithstanding the tight timetable, interested parties might be given the opportunity to comment. The errors of judgement made in deciding not to conduct a proper public consultation prior to the publication of the draft Regulation should not be repeated (para 171).


178. We recognise that the Regulation would bring some benefits. The removal of the authorship rule, the acknowledgement of the right to partial access to documents, and the duty to maintain registers are all positive steps forward. The shift towards a Treaty-based rights approach to access to documents is also noteworthy. But limiting that right to EU citizens and residents and imposing duties on only three institutions, though consistent with Article 255 EC, is in principle undesirable and may give rise to artificial distinctions, if not unfair discrimination, in practice. The opportunity should be taken, in so far as the Treaty permits, to extend the scope of the Regulation. Similarly, though Article 255 contemplates limits on the exercise of the right of access, any exclusion or exception must be consistent with the nature of the right, justifiable and explicable in practical terms and, not least, manifestly proportionate.

179. As can be seen from the detailed commentary made above there are a number of areas where the Regulation is far from satisfactory. Some of the comments we have made, for example on the definition of documents (Article 3) and the exceptions (Article 4) indicate our belief that there is a need for radical amendment if the objective of increased openness is to be achieved. Above all, the Regulation should recognise explicitly the concept of a fair balance between competing or conflicting interests: on the one hand, the individual's right to the widest possible access to documents and, on the other, the public or private interests which may be harmed by disclosure.


180. The Committee considers that the proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents raises important questions to which the attention of the House should be drawn and makes this Report to the House for debate.

51   Recital 7 provides: "In order to bring about greater openness in the work of the institutions and in line with current national legislation in most of the Member States, access to documents should be extended to include all documents held by the European Parliament, the Council and the Commission". Back

52   Case C-58/94 Kingdom of the Netherlands v. Council [1996] ECR I-2169, at para 34. Back

53   In the context of Council Decision 93/73, Case T-14/98 Heidi Hautala v. Council Judgment of 19 July 1999, at para 67. In the context of Commission Decision 94/90, Case T-309/97 The Bavarian Lager Company Ltd v Commission Judgment of 14 October 1999, at para 38. Back

54   Case C-58/94 Kingdom of the Netherlands v. Council [1996] ECR I-2169, at para 36. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2000