1 Public access to
documents
| (29666)
9200/08
COM(08) 229
| Draft Regulation regarding public access to European Parliament, Council and Commission documents
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| Legal base | Article 255 EC (now Article 15 TFEU); co-decision; QMV
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| Department | Foreign and Commonwealth Office/Ministry of Justice
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| Basis of consideration | Minister's letter of 29 January 2010
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| Previous Committee Report | HC 16-xxvi (2007-08), chapter 2 (2 July 2008), HC 19-ii (2008-09), chapter 6 (17 December 2008); also see (28576) 8754/07: HC 16-ix (2007-08), chapter 10 (23 January 2008)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
1.1 Regulation (EC)1049/2001[1]
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.
1.2 Access to information relating to the environment
is the subject of an international agreement, the Åarhus
Convention on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters of 25 June 1998
(the Åarhus Convention). By virtue of Regulation (EC) No.1376/2006
of 6 September 2006, the provisions of the Aarhus Convention apply
to Community institutions and bodies with effect from 28 June
2007.
1.3 The proposed amendments would 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"[2]
until the investigation is closed or the act has become definitive.
A new definition of "document" 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".[3]
1.4 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 Åarhus Convention, and Article
6(2) of Regulation 1367/2006. For the same purpose, it is also
now provides 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.
1.5 The proposed revised 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.
1.6 When we last considered the proposal on 17
December 2008 we agreed with the Government in welcoming the substance
of the proposed amendments. We also asked the Government to explain
whether Article 255 EC Treaty, which refers specifically to citizens
of the Union and any natural or legal person residing or having
its registered office in a Member State, provided a sufficient
legal base for the proposed extension of the right of access to
natural or legal persons who are neither EU citizens nor resident
in the EU. We decided to hold the document under scrutiny pending
the Minister's reply.
The Minister's reply
1.7 The Minister of Europe (Chris Bryant) has
now replied jointly with the Minister of State at the Ministry
of Justice (Michael Willis). In their joint letter of 29 January
2010 the Ministers inform us that the Ministry of Justice would
assume formal responsibility for the dossier with immediate effect.
The Ministers also tell us that the Council could not agree on
a revised version of this proposal and that the European Parliament
had indicated that it would not be prepared to give a first reading
to the current Commission proposal. In the absence of a revised
proposal agreed by the Council, a new Commission proposal or an
opinion from the European Parliament, it remained unclear how
the current version of the proposal could be taken forward.
Conclusion
1.8 We thank the Ministers for their update
on proposal designed to updated the rules on access to EU documents.
We note the proposed transfer of departmental responsibility for
the dossier.
1.9 We have to remind the Minister of our
previous question concerning the adequacy of Article 255 EC Treaty
as a legal base for the proposed extension of the right of access
to EU documents beyond EU citizens or residents. We may be persuaded
that a restriction of the right of access to EU citizens and residents
might be problematic not least with a view to the rights guaranteed
under the EU Charter, but would be grateful for a detailed explanation
by the Minister, which shows how the proposed extension may be
achieved under Article 255 EC Treaty (now Article 15 TFEU) alone.
1.10 We shall hold the document under scrutiny
pending the Minister's reply.
1 OJ No. L 145, 31.05.01, p.43. Back
2
Such as, for example, a Commission decision addressed to an individual. Back
3
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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