Select Committee on European Union Twenty-Second Report


Article 36: Transparency of the proceedings of the Union's institutions

1.  In order to promote good governance and ensure the participation of civil society, the Union institutions shall conduct their work as openly as possible.

2.  The European Parliament shall meet in public, as shall the Council when it is discussing a legislative proposal.

3.  Any citizen of the Union, man or woman, and any natural or legal person residing in a Member State, shall have a right of access to European Parliament, Council and Commission documents in whatever form they are produced, and to those of the agencies and bodies created by those institutions.

4.  General principles, conditions and limits which, on grounds of public or private interest, govern the right of access to documents shall be determined by the European Parliament and the Council in accordance with the legislative procedure.

5.  Each institution, agency or body referred to in paragraph 2 shall determine in its own Rules of Procedure specific provisions regarding access to its documents.

Explanatory note

"1.  The first paragraph states that, with the aim of sound administration, the Union institutions will take decisions as openly as possible (taking over the concept of openness from the second paragraph of Article 1 TEU ("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 and as closely as possible to the citizen").

2.  The second paragraph of the Article relates to the transparency of the Parliament's and Council's legislative proceedings. The reference in the first sentence to the Council's discussions is intended to cover the entirety of the phase when legislation is under discussion, from the first time a legislative draft is discussed in the Council to its final adoption. Should the Convention decide to recommend the creation of a legislative Council, the reference to the Council in this paragraph would have to be clarified.

3.  Paragraph 3 is based on Article 255 TEC and on Article 42 of the Charter of Fundamental Rights. Those texts are supplemented with an extension of the right of access to documents of agencies and bodies created by the legislator, in accordance with the joint declaration by the European Parliament, the Council and the Commission (OJ L 173, 27.6.2001, p. 5) relating to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). The joint declaration stipulates that: "The European Parliament, the Council and the Commission agree that the agencies and similar bodies created by the legislator should have rules on access to their documents which conform to those of this Regulation […]".

4.  Paragraph 4 of the Article is based on Article 255(2), with the reference to the procedure updated and with the time-limit for determining the rules deleted. The text also incorporates the term "conditions" in accordance with the definition of the scope of Regulation (EC) No 1049/2001 in its Article 1(a). Article 255(2) stipulates that "General principles and limits… shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.".

5.  Paragraph 4 is based on Article 255(3)."

COMMENTARY

16.  The principle set out in Article 36(1) is welcome. But we do not believe this statement of the general principle of openness should be limited to the institutions. As in the case of Article 36(3) (on which we comment in more detail below) the application of the principle should be expressly extended to include all agencies and bodies established by or created by or under the Treaties.

17.  Article 36(2) contains a wider statement of the principle found in draft Article 25(3), which provides: "When acting under any procedure for the adoption of a European law or a European framework law, the European Parliament and the Council shall meet in public". Again this is welcome. The Committee has consistently urged greater openness in the Council of Ministers.[12] Some improvements were agreed at the Seville European Council. But a general rule in the Treaty, such as that in Article 36(2), would be an important step forward.

18.  Article 36(3) deals with freedom of information and is derived from, and largely replicates the provisions of, Article 255 TEC. The legal nature and constitutional significance of public access to information varies between States. Article 36(3) underlines its importance in any Union Constitution and is to be welcomed. However, there is much room for improvement, both in the Treaty text and in current practice. In our Report Public Access to EU Documents we criticised the limitations of Article 255 TEC. We concluded that limiting the right of access to EU citizens (ie nationals of Member States) and persons resident in the Union and imposing duties on only three institutions was in principle undesirable and might give rise to artificial distinctions, if not unfair discrimination, in practice.[13] We therefore look for significant improvement.

19.  It is notable that the new Constitution would continue to restrict the right of access to documents to EU citizens and residents. For the reasons set out in our earlier Report we recommend that Article 36(3) be amended so that any natural or legal person (irrespective of his, her or its nationality or residence) should have the right of access to EU documents.

20.  We welcome the right of access being extended to all "agencies and bodies created by the institutions". This is consistent with the recommendations in our 2000 Report.[14] But Article 36(3) does not go far enough. The present text would not cover, for example, the Court of Justice, the Committee of the Regions, the Economic and Social Committee (ECOSOC), the Court of Auditors, the European Central Bank, the Ombudsman or Europol. We see no justification for these bodies being excluded from the Union's freedom of information regime. We recommend therefore that Article 36(3) be extended to cover all bodies and agencies established or created by or under the Treaties.

Article 36a: Protection of personal data

1.  Everyone has the right to the protection of personal data concerning him or her.

2.  The Parliament and the Council, in accordance with the legislative procedure, shall adopt the rules relating to the protection of individuals with regard to the processing of personal data by the Union's institutions and bodies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data.

Explanatory note

"1.  A general article on the protection of personal data, which creates a single legal basis for data protection by both the institutions and the Member States (when carrying out activities which come under the scope of Union law).

2.  Paragraph 1 reproduces Article 8(1) of the Charter of Fundamental Rights: "Everyone has the right to the protection of personal data concerning him or her".

3.  Paragraph 2 is based on the current Community system (Directive 95/46/EC on data protection[15], based on Article 95 TEC for Member States' activities and Article 286 TEC applicable to the institutions).

For reference, Article 286 TEC states:

"1.  From 1 January 1999, Community acts on the protection of individuals with regard to the processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.

  Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate."

For reference, Article 3(2) of Directive 95/46/EC states that: "This Directive shall not apply to the processing of personal data ... in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union…"

4.  The question of the creation of a single legal basis for personal data protection was raised when the JHA articles, specifically Article 21 (Chapter 4, police cooperation) of Part Two of the Treaty, were being drafted. The comments on the draft of Article 21 (CONV 614/03, page 31) explain that Article 30 TEU, from which the wording of Article 21 is essentially derived, provided that the exchange of information between national services and between the latter and Europol is to be carried out "subject to appropriate provisions on the protection of personal data", and that on that basis, data protection provisions had been included in the various 3rd pillar instruments. It explains that rather than including an explicit reference to data protection in Article 21 in order to create a legal basis for maintaining and developing such provisions for the current 3rd pillar area, it would seem more logical, following the abolition of the pillars, to bring in general arrangements for the protection of personal data, covering both the current Community arrangements (Directive 95/46/EC on data protection based on Article 95 TEC for action by Member States, and Article 286 TEC for action by the institutions) and action under the existing 3rd pillar."

COMMENTARY

21.  This would be a new Treaty Article but, as mentioned in the Praesidium note, it is based in part on Article 8 of the EU Charter of Fundamental Rights and in part on existing Treaty provisions. In contrast to Article 36(3) (access to documents, see paragraph 17 above) the right to the protection of personal data is acknowledged by Article 36a to be a right of all individuals and not limited to citizens and EU residents.

22.  Currently EU data protection measures comprise Directive 95/46/EC[16] and a small number of other Single Market measures, Regulation 45/2001[17] in relation to the processing of data by the institutions, and particular provisions in Third Pillar instruments. Article 36a(2) would give a new power to regulate for data protection. What needs to be considered is whether by bringing together, in one general enabling provision, powers to legislate at Union level on data protection in the way currently being proposed a new, more extensive, competence would be conferred on the Union.

23.  The draftsman has drawn inspiration for Article 36a(2) from Article 286 TEC (dealing with the protection of individuals in relation to the processing of data by Union institutions and bodies). There would be a wide power to regulate the processing of data which would include the processing of data by Member States "when carrying out activities which come under the scope of Union law". It is noteworthy that a case currently before the Court of Justice raises the question how Community data protection laws (based on Single Market powers in Article 95 TEC) may impact on local/domestic and non-economic situations (in the particular case, posting on a public website personal and confidential details about a local church's supporters). The Advocate General has drawn attention to the limitations of the power in Article 95 TEC.[18] The new power in Article 36a would extend beyond the Single Market and Third Pillar. On the other hand it does not appear to include the power to regulate the processing of data by natural and legal persons, though the intention, according to the Praesidium's note, is to give a power at least as extensive as Article 95 TEC.

24.  It appears to be the intent that the new power would extend to "the adoption of specific data protection rules geared to the police sector".[19] But how much further the power is intended to extend is unclear. We would question the need and desirability of conferring any general competence on the Union to legislate on data protection, though we have no difficulty with putting data protection in Schengen and Third Pillar matters on a secure legal basis. However, the implications of the existence and exercise of any such competence for Article 10 ECHR (freedom of expression) needs to be carefully examined. There are potentially serious issues here, for example, for the regulation of the media. We believe that the limits of the power in Article 36(2) need to be defined. It must be made clear that Article 36a does not confer any general power on the Union to legislate on data protection.

Article 37: Status of churches and non-confessional organisations
1.  The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2.  The European Union equally respects the status of philosophical and non-confessional organisations.

3.  The Union shall maintain a regular dialogue with these churches and organisations, recognising their identity and their specific contribution.

Explanatory note

"1.  Paragraphs 1 and 2 take over in full the text of Declaration 11 annexed to the Amsterdam Treaty, on the status of churches and non-confessional organisations.

2.  Paragraph 3 specifies that the Union is to maintain a dialogue with the churches and organisations referred to in paragraphs 1 and 2 (as with the associations and civil society; see Article 34)."

COMMENTARY

25.  This Article upgrades, to a Treaty obligation, the need for the Union to respect the status under national law of both religious organisations ("churches and religious associations or communities", undefined) as well, and on an equal basis, as philosophical and non-confessional organisations. While we recognise that there has been pressure to include express reference to religious values in any new Union Constitution the Committee is concerned that Article 37, which may have been included as some form of compromise, may give rise to greater problems than it is intended to solve. Whether Article 37 is necessary[20] or helpful requires careful consideration.

26.  In this Article as in others (see in particular our comments on Article 34 above) there are serious problems of uncertainty and lack of definition. The Praesidium's Explanatory note suggests that churches and the organisations referred to in Article 37(1) and (2) do not fall within the definition of "civil society", but as we explain in paragraphs 10 and 11 above the meaning of that term is far from clear and there is a good argument that the churches and such organisations form a part of civil society.

27.  Article 37(3) places an obligation on the Union (and thus in turn on its Member States and the Union's institutions) "to maintain a regular dialogue with these churches and organisations". The scope and extent of application of this obligation is unclear. We query whether anything more than or different to Article 34 is required. According special positions inter alia to "churches and religious associations or communities" and to "philosophical and non-confessional organisations" without defining those terms might open the door to a wide range of bodies (including sects and cults), some of which might generally be considered to be harmful, and some actually dangerous, to society.

28.  There are also problems with the drafting of this Article. It contains apparent internal inconsistencies. For example, Article 37(1) "respects and does not prejudice the status" of churches, while Article 37(2) only "respects the status" of philosophical organisations. There is also possible inconsistency with related Articles. Again Article 37(3) refers only to "those churches and organisations" and omits any mention of the "religious associations or communities" in Article 37(1). What is intended? It is noteworthy that maintaining "a regular dialogue" suffices for Article 37(3), while Article 34(3) requires "an open, transparent and regular dialogue with representative associations and civil society". It is doubtful, however, whether anything different is intended. It may be suggested, not least by lawyers, that the omission of the adjectives "open" and "transparent" can hardly be an accident, given the close proximity of Article 34(3). The greater clarity required for Article 34(3) (see paragraph 12 above) is required also here.


12   See our Reports The Convention on the Future of Europe (30th Report, Session 2001-02, HL Paper 163), and Review of Scrutiny of European Legislation (1st Report, Session 2002-03, HL Paper 15). Back

13   Public Access to EU Documents (16th Report, Session 1999-2000, HL Paper 102) at paragraph 178. Back

14   Ibid at paras 94 and 177. Back

15   Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, [1995] OJ L 281/31. Back

16   [1995] OJ L 281/31. Back

17   [2001] OJ L 8/1. Back

18   Case C-101/01 Bodil Lindquist. The opinion of Advocate General Tizzano was given on 19 September 2002. The judgment of the Court is awaited. Back

19   See Praesidium's Explanatory note to Article 21 of part 2 (Freedom, Security and Justice), reproduced in our third Report in this series (16th Report, Session 2002-03, HL Paper 81) at p 36. Back

20   Article 37 fudges the key issue of separation of church and state. Articles 9, 10, 11 and 14 ECHR (and their equivalents in the EU Chapter of Fundamental Rights) already provide a balanced approach to freedom of thought, conscience and religion, free speech, freedom of association, and freedom from discrimination on any ground. Back


 
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