Explanatory Memorandum to COM(2000)30 - Public access to European Parliament, Council and Commission documents - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2000)30 - Public access to European Parliament, Council and Commission documents. |
|---|---|
| source | COM(2000)30  |
| date | 26-01-2000 |
The Amsterdam Treaty introduced a new Article 255 into the EC Treaty which grants citizens and residents of the Union the right of access to documents of the European Parliament, the Council and the Commission. The Treaty included among the general principles of the Union the idea that decisions must be taken as openly as possible and as closely as possible to the citizens.
Under new Article 255, it is for the Commission to prepare draft legislation on the general principles and limits governing the right of access to documents of the three institutions, which must be adopted under the codecision procedure within two years of the entry into force of the Amsterdam Treaty, i.e. before 1 May 2001. Each institution must also lay down specific provisions regarding access to its documents in its rules of procedure.
For over five years the Council and the Commission have been applying a joint code of conduct regarding public access to documents. The European Parliament adopted a similar system in July 1997 i.
Contents
- 2. Preparatory work
- 3. Beneficiaries of the right of access (article 1)
- 4. Scope of the regulation (articles 2 and 3)
- Subjects covered by the Regulation
- Documents covered by the Regulation
- Compatibility between the general principle of access to documents and existing specific rules
- 5. Exceptions to the right of access (article 4)
- 7. Final provisions (articles 9 to 11)
In drawing up this proposal for a Regulation, the Commission has given special consideration to:
- Member States' legislation on access to documents, in particular good practice in the Nordic countries, which have a long tradition of opening up their documents to the public;
- the report by the European Parliament's Committee on Institutional Affairs on openness within the European Union, adopted by Parliament at its plenary sitting on 12 January 1999 (rapporteur: Ms Lööw);
- the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Århus in June 1998;
- the special report from the European Ombudsman to the European Parliament following the own-initiative inquiry into public access to documents held by Community institutions and bodies i;
- the Green Paper on public sector information in the information society i;
- the positive experience acquired during the five years' operation of the system introduced voluntarily by the Council, the Commission and Parliament, as described in the Council and Commission reports on the implementation of their code of conduct.
In accordance with Article 255 of the EC Treaty, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, enjoys the right of access to documents. As is already the case under the present system, the applicant is not required to cite a special reason.
Institutions covered by the Regulation
In accordance with Article 255 of the EC Treaty, the Regulation will apply only to documents of the European Parliament, the Council and the Commission. These institutions and their constituent parts are defined in Article 3.
Articles 28 i and 41 i of the Treaty on European Union expressly provide that the right of access also applies to documents relating to the common foreign and security policy and police and judicial cooperation in criminal matters.
In accordance with the case-law of the Court of Justice, the Regulation must also apply to documents relating to activities under the ECSC and Euratom Treaties i.
[1987] ECR 5119 (Judgment given on 15.12.1987).
The legislation will cover all documents held by the three institutions, i.e. documents drawn up by them or emanating from third parties and in the possession of the institutions. This widening in the scope of the access system is a major step forward compared to the current system, which only covers documents produced by the institutions.
Both the European Parliament and the European Ombudsman keenly advocate this approach, which is in line with existing legislation in most Member States. The formulation of Declaration No 35 also supports a broader interpretation of Article 255. However, it is understood that access to a document received from a third party will not be granted if the document is covered by one of the exceptions provided for in Article 4. Where there is some doubt on this, the institution will consult the author of the document first, although it reserves the right, if no reply is forthcoming, to take the final decision on whether to allow access to the document or not. Access to documents from third parties will be limited to those sent to the institution after the date of entry into application of this Regulation, so as to enable European citizens to be properly informed of this wider access to documents.
Definition of the term 'document'
The term 'document' is defined as any form of content irrespective of the medium on which it is carried. It will cover only administrative documents, i.e. any document on a topic which falls within the institution's remit, excluding documents expressing individual opinions or reflecting free and frank discussions or the provision of advice as part of internal consultations and deliberations, as well as informal messages such as e-mail messages which can be considered the equivalent of telephone conversations. As the Committee of Independent Experts emphasized in its Second Report, 'like all political institutions, the Commission needs the 'space to think" to formulate policy before it enters the public domain, on the grounds that policy made in the glare of publicity and therefore 'on the hoof' is often poor policy" i.
Specific rules relating to access to documents or files already exist in connection with certain procedures. It is therefore important to stipulate clearly that the future rules governing the right of access to documents will not apply where specific rules already exist for certain persons who have a particular interest in information or where there are rules governing the confidentiality of certain documents. However, these rules should be revised as soon as possible in the light of the general principles on transparency.
The draft legislation includes a number of exceptions to the right of access to documents. As under the present system, all the exceptions are based on a 'harm test'. This means that access to documents will be granted unless disclosure might seriously harm certain specific interests, which are spelled out in Article 4 (with reference to specific examples). Compared with the rules laid down in the present Council and Commission code of conduct, the wording of the exceptions has been spelled out more clearly.
6. Processing of initial and confirmatory applications, remedies, exercise of the right of access and rules on reproduction for commercial purposes or other forms of economic exploitation (articles 5 to 8)
The proposal contains provisions similar to those in force under the present system - which operates satisfactorily - with a number of adjustments.
For example, the time-limit for replies may now be extended by one month, provided that the applicant is notified in advance and detailed reasons are given. In accordance with the judgment given by the Court of First Instance on 19 July 1999 in Case T-14/98 (Hautala v Council), the proposal also introduces a requirement that, where a document contains passages covered by one of the exceptions to the right of access, partial access must be granted after the passages covered by the exception have been concealed.
The Regulation introduces the principle that no reply to a confirmatory request equals a positive response, which strengthens citizen's rights.
A number of final provisions are proposed, designed to:
- commit the institutions covered by the Regulation to taking the necessary steps to inform citizens of their rights and to set up public registers of documents;
- remind the institutions that they must lay down in their rules of procedure specific provisions for the implementation of the general principles and limits laid down in this Regulation.
It is also highly desirable that the three institutions should undertake to adopt a number of additional measures in order to ensure a consistent approach in the implementation of the new rules governing public right of access to their documents. Such measures include training and informing their staff and reviewing existing procedures for registering, filing, archiving and classifying documents.