PUBLIC ACCESS TO EU DOCUMENTS
Draft Council Regulation regarding public access to documents of the European Parliament, the Council and the Commission.
||Article 255(2) EC; co-decision; qualified majority voting
||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|
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;
" the purpose of inspections, investigations
unless there is an overriding public interest in
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.
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".
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
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
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
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,
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
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
Registers are provided for in Article 11. Back
"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