PUBLIC ACCESS TO EU DOCUMENTS
(20968)
5817/00
COM(00) 30
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Draft Council Regulation regarding public access to documents of the
European Parliament, the Council and the Commission.
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| Legal base: |
Article 255(2) EC; co-decision; qualified majority voting
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| |
| Document originated:
| 26 January 2000 |
| Forwarded to the Council:
| 28 January 2000 |
| Deposited in Parliament:
| 15 February 2000 |
| Department: |
Foreign and Commonwealth Office
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| Basis of consideration:
| EM of 29 February 2000 (received 8 March 2000)
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| Previous Committee Report:
| None |
| To be discussed in Council:
| No date set |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Not cleared; further information requested
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Background
7.1 Introducing this proposal, the Commission
gives some background:
"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
also 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 co-decision 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[19]."
7.2 In drawing up the proposal, the Commission
says that it has given special consideration to two reports from
the European Parliament, a UN/ECE[20]
Convention, the Green Paper on public sector information in the
information society[21]
and:
"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".
Institutions covered
7.3 The Regulation will apply to documents
drawn up by, or emanating from third parties and in the possession
of the European Parliament, the Council and the Commission. This
will widen the scope compared to the current system, which only
covers documents produced by the institutions, and is described
by the Commission as a major step forward.
Definitions
7.4 Article 3 says that a "'document'
shall mean any content whatever its medium..." and that only
administrative documents shall be covered, that is documents on
policies, activities and decisions which fall within the area
of responsibility of the institution concerned. Texts designed
for internal use will be excluded. These include discussion documents
and those recording the views of individual departments within
an institution, as well as informal messages, such as e-mail messages
which are to be considered equivalent to telephone conversations.
The Commission quotes a report by the Committee of Independent
Experts[22]
which emphasised that "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."
Right of access
7.5 Right of access is open to any citizen
of the EU and to "any natural or legal person residing or
having its registered office in a Member State". As under
the present system, the applicant is not required to cite a special
reason when exercising this right, subject to exceptions laid
down in Article 4.
Exceptions
7.6 The institutions will be able to refuse
access to documents, including those from third parties, where
disclosure could seriously undermine the protection of:
- privacy and the individual; and
- commercial and industrial secrecy or the economic
interests of a specific natural or legal person.
7.7 Particular instances of areas to which
these exceptions could apply, such as public security, monetary
stability and intellectual and industrial property are listed
(see the annex to this paragraph). The Commission says that these
exceptions have been spelt out more clearly than in the present
code of conduct rules.
7.8 Other articles cover such areas as the
processing of initial applications; processing of confirmatory
applications — remedies; reproduction for commercial purposes
or other forms of economic exploitation; and information and registers
The Government's view
7.9 The Minister of State at the Foreign
and Commonwealth Office (Mr Vaz) comments:
"The Government attaches
high priority to increasing transparency and openness in EU decision-making,
in particular, the public's right to know about the activities
of EU institutions.
"Discussion by Member States on the Commission
proposal will take place in the Information Working Group. The
UK's general position will be:
"— the proposal's obligations should
clearly fall to the EU institutions;
"— this should be explicit in both
the recital and body of the text;
"— its provisions should be compatible
with UK legislation and reflect the spirit of openness called
for in the Amsterdam Treaty;
"— documents should be released whenever
possible;
"— parts of documents should be released
where exceptions preclude the release of the whole document;
"— it should be straightforward and
cheap for citizens to access documents."
7.10 Access to EU institution documents
held by UK bodies is determined in accordance with the access
provisions of the EU institution concerned, not with domestic
legislation, the Minister points out. He adds that there is clearly
a practical interest in the two régimes being generally
compatible and the UK Freedom of Information Bill exempts the
disclosure of information which would be incompatible with any
Community obligation.
Criticism of exceptions by EU Ombudsman
7.11 According to European Voice
of 16-22 March, the President of the Commission, Romano Prodi,
has responded to the public criticisms of the list of exemptions
made by the EU Ombudsman, Jacob Söderman, saying that it
would be "very much the exception" to withhold documents.
Söderman is quoted as insisting that he was right to conduct
the debate in public because the Commission did not fulfil a promise
to publish a consultation paper before adopting this draft Regulation.
Conclusion
7.12 We note with approval the general
position which the Minister says that the UK will adopt towards
this proposed legislation. However, he does not comment on the
list, proposed by the Commission and set out in Article 4 of the
draft, of exceptions which the institutions can invoke to refuse
access to documents. We wonder, for instance, in what circumstances
the legal order of the Community could be destabilised by the
provision of information to the public.
7.13 We ask the Minister for a sharper
analysis of the proposal and, in particular, to assess the impact
of the exceptions proposed. We also ask him to tell us whether
the Commission conducted any sort of consultation before publishing
it, and to provide us with the opportunity to compare these exceptions
with those applied in the Nordic countries, since the Commission
quotes them as models of good practice.
7.14 When the Minister sends us this
information, we shall consider the document again. Meanwhile we
do not clear it.
19 Code of Conduct concerning public access to Council
and Commission documents, adopted by the Council on 20 December
1993 (OJ No. L 340, 31.12.93, p.43), and by the Commission on
8 February 1994 (OJ No. L 46, 18.2.94, p.58). Parliament adopted
a decision on public access to its documents on 10 July 1997 (OJ
No. L 263, 25.9.97, p.27). Back
20 UN
Economic Commission for Europe. Back
21 (19826)
5580/99; see HC 34-xvi (1998-99), paragraph 13 (21 April 1999). Back
22 Second
report by the Committee of Independent Experts, Chapter 7, paragraph
7.6.6. Back
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