Select Committee on European Scrutiny Twenty-Ninth Report

2   Public access to documents



COM(08) 229

Draft Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents

Legal baseArticle 255 EC; codecision; QMV
Document originated30 April 2008
Deposited in Parliament9 May 2008
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 27 May 2008
Previous Committee ReportNone; but see (28576) HC 16-ix (2007-08), chapter 10 (23 January 2008)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


2.1  Regulation (EC) No. 1049/2001[4] provides for a right of access by EU citizens or legal persons residing or having their registered office in a Member State to European Parliament, Council or Commission documents. The right of access applies to all documents in the possession of one or more of the institutions, including documents received by an institution from a Member State or third party. The right of access is subject to a number of exceptions and limitations relating to such matters as data protection, intellectual property, duties of confidence, the protection of investigations and the decision-making process.

2.2  Access to information relating to the environment is the subject of an international agreement on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 25 June 1998 (the Århus Convention). By virtue of Regulation (EC) No. 1376/2006 of 6 September 2006, the provisions of the Århus Convention apply to Community institutions and bodies with effect from 28 June 2007.

2.3  The Commission published a Green Paper in 2007 reviewing the operation of Regulation (EC) No. 1049/2001 and seeking views on the alignment of the Regulation with the provisions of the Århus Convention. The Green Paper also suggested that the reference to "legislative documents" in Article 12 of the Regulation (which provides for direct access to such documents) lacked precision[5] and that the Regulation could be amended to define which documents formed part of the legislative process. We considered the Green Paper on 6 June 2007 and 23 January 2008 and noted that the Government supported the creation of a single set of rules for access to documents, including those on environmental issues.

The proposed amendments to Regulation 1049/2001

2.4  The proposed amendments would first make the right of access available to any natural or legal person, regardless of nationality or State of residence (Article 2(1)). Article 2 is further amended by the addition of a new Article 2(5) which excludes documents submitted to "Courts" by parties other than the institutions. A new Article 2(6) also excludes documents forming part of the administrative file of an investigation or of "proceedings concerning an act of individual scope"[6] until the investigation is closed or the act has become definitive.

2.5  The existing definition of "document" appears to have been maintained in Article 3a. However, whilst the existing definition does not qualify the term "document" by reference to its provenance, the new definition refers to a document as being one which is "drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered" or one which is "received by an institution".[7]

2.6  The exceptions in Article 4 have been amended in a number of respects. First, an exception has been added relating to the protection of the public interest in the environment, such as the breeding sites of rare species. The exception corresponds to the requirements of the Århus Convention, and Article 6(2) of Regulation 1367/2006. For the same purpose, it is also now provided that the exception for the protection of commercial interests will be overridden in the public interest where the information relates to emissions into the environment. Secondly, a new provision (Article 4(5)) is added which provides that "names, titles and functions of public office holders, civil servants and interest representatives in relation with their professional activities shall be disclosed unless, given the particular circumstances, disclosure would adversely affect the persons concerned". The rest of the new Article 4(5) provides that other personal data shall be disclosed in accordance with EC data protection principles.

2.7  A new Article 5(2) deals with the situation where a document originates from a Member State and is held by an institution. Whereas the existing Article 4(5) provides that a Member State may request an institution not to disclose such a document, the new Article 5(2) requires the Member State to be consulted and for disclosure of the document unless the Member State gives reasons for withholding it, based on the exceptions under Article 4 of the Regulation or specific provisions in its national law.

2.8  A number of procedural changes are made to deal with applications which are not sufficiently precise (in which case the time limits begin to run once the application has been clarified), to extend the time from 15 to 30 days for handling an application to reconsider a refusal to disclose a document.

The Government's view

2.9  In his Explanatory Memorandum of 27 May 2008 the Minister for Europe at the Foreign and Commonwealth Office (Jim Murphy) describes the proposed amendments and indicates that the Government is still considering its position on the detail of the proposals. The Minister also comments that the Government believes that in general, the current Regulation functions well and that any changes to its functioning "need to be carefully considered". The Minister adds that "in broad terms, the UK would welcome a clearer demarcation between the legal rules applicable to personal data and the rules applying to access to documents".


2.10  Given the subject-matter, there is more than a little irony in the Minister's reticence to set out more fully the Government's reaction to the proposals, and we recall that we encountered the same reticence in our consideration of the Green Paper.

2.11  We shall hold the document under scrutiny pending a further reply from the Minister setting out in more detail the results of the Government's consideration, notably on the important question of the boundary between the protection of personal data and the rules on access to documents.

2.12  We would be grateful if the Minister would offer a view on the extent to which the definition of "document" has been narrowed, and if it would include material which comes into the possession of the institutions by whatever means. We should also be grateful for the Minister's views on the implications of the new Article 4(5) for UK civil servants, including those in the devolved administrations.

2.13  We shall hold the document under scrutiny pending the Minister's reply.

4   OJ No. L145, 31.05.01, p.43. Back

5   "Legislative documents" are defined as "documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States". Back

6   Such as, for example, a Commission decision addressed to an individual. Back

7   Article 2(3) - which is not materially amended - provides for the Regulation to apply to "all documents held by an institution" i.e. "documents drawn up or received by it and in its possession". Back

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