European Scrutiny Committee Contents

11 Managing the EU's archives



COM(12) 456

Draft Regulation amending Regulation No 354/83 as regards the deposit of the historical archives of the institutions at the European University Institute in Florence

Legal baseArticle 352 TFEU; unanimity; consent
Basis of considerationMinister's letter of 9 November 2012
Previous Committee ReportHC 86-xviii (2012-13), chapter 7 (31 October 2012)
Discussion in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionCleared

The document


11.1 The proposal is for a Regulation that will seek to regularise existing arrangements for the management of the physical historical archives of the European institutions by the European University Institute ("EUI"), Florence, in premises provided on a permanent basis by the Italian government.

11.2 Currently, the European institutions are obliged by Regulation (EEC, Euratom) No 354/83 ("the existing Regulation") to make arrangements for the preservation and provision of access to their archives once records are 30 years old. Although the existing Regulation does not require it, the Council, Commission, European Court of Auditors, European Economic and Social Committee and European Investment Bank have, as a matter of practice, deposited their physical (paper) archives with the EUI under a series of contracts dating from 1983, 1984 and 2005.

11.3 The proposed Regulation would formalise these arrangements and would also require all the European institutions to deposit their physical archives at the EUI. The European Court of Justice (ECJ) and the European Central Bank (ECB) have asked to be excluded from the requirement to deposit their archives at the EUI, but may voluntarily deposit their records there if they wish to, and this is reflected in the proposed text. The proposal will not change the point at which the public can access historical records, which will remain at 30 years.

11.4 A different approach is intended for the European institutions' digital archives, with individual institutions taking responsibility for the permanent preservation of their own digital material. The existing Regulation does not mention digital archives and the proposal to amend the Regulation intends to help address this gap. The proposal therefore includes the provision that the EUI shall have permanent access to each institution's digital archives in such a way as to allow it to fulfil its obligation to make historical archives accessible to the public from a single location once they are 30 years old.


11.5 The legal basis for the proposal is the residual legal base of Article 352 TFEU, which is relied upon in the absence of a specific legal base. In this case, whilst the EU has competence to adopt measures to support, coordinate or supplement the actions of Member States in the preservation of national culture or educational objectives by virtue of Article 6 TFEU, the Treaties do not provide the EU with the necessary powers with regard to the historical archives of the institutions.

11.6 For proposals adopted on the basis of Article 352 TFEU, unanimity in the Council and the consent of the European Parliament are required.

11.7 As the proposal is being brought forward under a legal base of Article 352 TFEU, under section 8 of the European Union Act 2011 a Minister may vote in favour of the proposal only if one of the subsections (3) to (5) is complied with, the presumption being that an Act of Parliament is required.


11.8 When we reported on this proposal[84] we commented that it seemed a sensible, uncontroversial proposal. What lent it legal and political significance was the application of the European Union Act 2011 to it. Section 8 of that Act prevents a Minister from voting in the Council in favour of a proposal based on Article 352 TFEU unless either:

  • the draft proposal is approved by Act of Parliament; or
  • is approved by a resolution of both Houses on an unamended motion where its adoption is a matter of urgency in the opinion of the Minister; or
  • the Minister has laid a statement saying that in his opinion the draft proposal relates to one or more exempt purposes. Exempt purposes are:

(a) to make provision equivalent to that made by a measure previously adopted under Article 352 of TFEU, other than an excepted measure;

(b) to prolong or renew a measure previously adopted under that Article, other than an excepted measure;

(c) to extend a measure previously adopted under that Article to another Member State or other country;

(d) to repeal existing measures adopted under that Article;

(e) to consolidate existing measures adopted under that Article without any change of substance.

11.9 We did not consider that this proposal fell within an exempted purpose: the legal obligation on EU institutions to deposit archives at the EUI was new, rather than equivalent to or a consolidation of an existing provision; as were the provisions concerning the EUI as a data processor within the terms of Regulation 45/2001, and concerning the EUI having permanent access to each institutions' digital archives. We therefore concluded that an Act of Parliament would be required before the Minister could agree to this proposal in the Council.

11.10 We asked the Government to confirm it agreed with this analysis. We also asked it to explain why the ECJ and ECB had been excluded from the obligation to deposit their archives with the EUI.

The Minister's letter

11.11 The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant) writes on 9 November in response to our questions. She confirms that, in light of the legal base of Article 352 TFEU, section 8 of the European Union Act 2011 will apply, and that the section 8 exemptions listed above are not capable of applying to this proposal, so that an Act of Parliament will be necessary.

11.12 Turning to the ECJ and ECB, she says that they are the only two institutions which asked for an exception to the general rule of mandatory deposit at the EUI. The ECJ archives are a considerable size, the majority of which is case files, and many of which need to remain accessible to the Court and often contain sensitive personal data.  Arrangements for managing the records of courts and whether they are subject to national archives legislation vary across Member States. The ECJ retains the possibility of voluntary deposit with EUI and giving the EUI access to digital archives which the Court might open to the public in the future. The ECB refers to its organisational autonomy, staff expertise in guiding users to historical information and that public access to its documents is subject to specific Bank rules from 2004 (not Regulation No. 1049/2001 regarding public access to European Parliament, Council and Commission documents). This is in line with national arrangements in most Member States (for example the Bank of England is not subject to the Public Records Act 1958).


11.13 We thank the Minister for her helpful reply. We are pleased to note the Government's conclusion that exemptions under section 8 of the European Union Act 2011 do not apply in this case; we think this is consistent with a faithful interpretation of that section, even if the consequence is that an Act of Parliament will be required before the Government can agree to this unimportant proposal in the Council.

11.14 Having no further questions to ask we now clear the document from scrutiny.

84   See headnote. Back

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Prepared 24 December 2012