19 Public access to EU 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 15 TFEU; co-decision; QMV
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| Department | Ministry of Justice
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| Basis of consideration | Minister's letter of 27 March 2013
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| Previous Committee Reports | HC 86-xii (2012-13), chapter 11 (17 October 2012); HC 5-xviii (2009-10), chapter 1 (7 April 2010); HC 19-ii (2008-09), chapter 6 (17 December 2008); HC 16-xxvi (2007-08), chapter 2 (2 July 2008); also see (28576) 8754/07: HC 16-ix (2007-08), chapter 10 (23 January 2008)
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
19.1 Regulation (EC) No. 1049/2001 regarding public access
to European Parliament, Council and Commission documents (the
Regulation) provides that citizens of the EU or legal persons
residing or having their registered office in a Member State of
the EU have a right of access to European Parliament, Council
and Commission documents. The right of access applies to all documents
in the possession of one or more of the institutions, and includes
documents received by an institution from a Member State or third
party. The right of access is subject to exceptions on limited
grounds which are set out in the Regulation.
19.2 The Commission brought forward a proposal
in 2008 to amend the Regulation. These changes were intended to
reaffirm a commitment to transparency, update the rules to reflect
recent case-law, and encourage the EU institutions covered by
it to be more efficient in responding to requests for information.
They do so in the main by proposing greater transparency than
is the case under the Regulation.
19.3 The European Parliament voted on its first
reading amendments in December 2011. All would result in greater
transparency. There was concern among Member States, however,
that they did not achieve a sufficient balance between transparency
and effective Government. The amendments tabled by the European
Parliament also incorporated further proposals from the Commission,
including extending the coverage of the Regulation to all institutions,
bodies, offices and agencies of the European Union. In 2012 negotiations
continued between the institutions.
19.4 As a result of the slow progress of these
negotiations, the Commission published on 30 March 2011 a separate
proposal for a more limited amendment of the Regulation. The purpose
of this limited recast was solely to take account of Article 15(3)
of the Treaty on the Functioning of the European Union (TFEU)
without delay. Article 15(3) provides a right of access to documents
held by all institutions, bodies, offices and agencies of the
European Union as opposed solely to those held by the European
Commission, Council and Parliament. This limited recast was not
intended to prejudice the progress of, or supplant, the wider
recast of the Regulation. The Ministry of Justice submitted a
separate Explanatory Memorandum on the proposed limited recast
in April 2011. On 22 June 2011 the document was cleared by the
Committee as not raising questions of sufficient and legal or
political importance to warrant a substantive Report to the House.[88]
19.5 When we last considered the proposal in
October last year, we noted that negotiations on a first reading
deal under the Danish Presidency had stalled, and asked the Government
to explain what the principal disagreements between the institutions,
and within the Council, had been, and whether the Cypriot had
presidency plans to revive the negotiations.
Minister's letter of 27 March
19.6 The Minister of State at the Ministry of
Justice (Lord McNally) says that the Danish were ultimately unsuccessful
owing to the wide divergence of views on this matter between the
institutions and between Member States. On reverting to the Council
working party the Danish Presidency sought agreement for a revised
negotiating mandate for a further trilogue discussion in June.
If agreed the mandate would have taken the position closer to
that of the European Parliament. However, in doing so it would
have gone further than a considerable number of Member States
were prepared to go. In discussion it was clear that a considerable
number of Member States planned to vote against the revised mandate
for that reason. It was concluded that the likelihood of success
in trilogue discussions with the European Parliament was limited
owing to the European Parliament's more radical aims for the recast
than the more modest ones of the Danish Presidency. The key areas
of disagreement included whether:
- the documents within the scope
of the Regulation (and therefore amenable to a request made under
it) should be limited only to those that have been "formally
transmitted" by a EU institution;
- there ought to be a rebuttable presumption that
the names and contact details of EU and Member State officials
acting on EU business should be disclosed in response to a request
made under the Regulation; and
- the exemptions from the obligation to disclosure
of the following subject matter ought to be weakened or strengthened
in relation to ongoing competition law investigations, legal advice,
and policy discussions.
19.7 In each instance the European Parliament's
favoured approach was for an option that would lead to a greater
amount of material being disclosable under the Regulation. By
contrast, the majority view in the Council was that these proposals
went too far by failing to recognise the proper interest in being
able to protect genuinely sensitive material in appropriate cases.
19.8 In October 2012 the Cypriot Presidency commenced
further discussions aimed at taking the recast of the Regulation
forward. At the time of our last Report, however, it was unclear
what the timetable would be. Ultimately, the Cypriot Presidency
concluded in December that there was little prospect of reaching
agreement.
19.9 The Minister comments that, whilst the UK
is committed to playing a constructive part in future discussions
about the recast, the lack of progress is not detrimental to its
interests. It thinks the current Regulation works well, although
it should be extended formally in line with the Lisbon Treaty
to EU institutions beyond the European Parliament, Council and
Commission. The UK opposes, for example, the proposal by the Commission
(supported by a number of Member States) that the definition of
a document subject to the Regulation should be narrowed to one
which has been formally transmitted. This would result in an unacceptable
retraction in the scope of the Regulation. At the same time, recognising
the need to protect genuinely sensitive information, it has been
concerned by some proposals to weaken a number of exceptions from
disclosure, in particular that relating to personal data. It believes
the current exceptions to be broadly adequate.
19.10 The Minister does do not anticipate significant
further discussion on the recast in the immediate future. However,
when discussions do begin again in earnest he will write.
Conclusion
19.11 We thank the Minister for his helpful
letter. Given the lack of progress on the proposal, and that it
has been under scrutiny since January 2008, we are content to
clear it from scrutiny.
19.12 Should negotiations revive, we ask the
Minister to deposit a new draft of the proposal.
88 (32652) 8261/1/11 REV 1: See HC 428-xxx (2010-12),
22 June 2011, Chapter 23. Back
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