House of Lords - European Communities

Select Committee on European Communities Sixteenth Report

PART 2: BACKGROUND

THE LEGISLATIVE HISTORY

7. Prior to 1994 there were no formal arrangements enabling the citizen to obtain access to a document emanating from one of the EU institutions. The general practice of the Commission over a number of years was to make all documents available on request unless they contained material, for example, that was commercially confidential or related to an individual's privacy or needed to be safeguarded to protect the Commission's semi-juridical role (ie decisions against firms or Member States under the competition rules and infringement proceedings against Member States).[1] The Council was in practice less forthcoming in making information available. [2]

8. The 1990s saw both political and practical steps to improve the transparency of the Community's legislative and administrative procedures, particularly as regards access to documents. Political action came first. The Treaty on European Union signed at Maastricht on 7 February 1992 (the Maastricht Treaty) contained a Declaration (No 17) on the right of access to information ( 'Declaration No 17'), which stated:

'The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions.'

9. Subsequent European Councils endorsed the Member States' commitment to openness. At the close of the European Council in Birmingham on 16 October 1992, the Heads of State and of Government issued a declaration entitled 'A Community close to its citizens', in which they stressed the need to make the Community more open. That commitment was reaffirmed by the European Council in Edinburgh on 12 December 1992. The Commission responded positively. On 5 May 1993 the Commission addressed to the Council, the Parliament and the Economic and Social Committee a Communication on public access to the institutions' documents.[3] It contained the results of a comparative survey on public access to documents in the Member States and some non-member countries, and concluded that there was a case for developing further access to documents at Community level. Soon afterwards, on 2 June 1993, the Commission adopted a Communication on openness in the Community.[4] This set out certain basic principles governing access to documents. At the European Council in Copenhagen on 22 June 1993, the Council and the Commission were invited to 'continue their work based on the principle of citizens' having the fullest possible access to information'.

10. Within the framework of these preliminary steps towards implementing the principle of transparency, the Council and the Commission approved on 6 December 1993 a Code of Conduct concerning public access to Council and Commission documents[5] (the Code of Conduct), aimed at establishing the principles to govern access to documents held by them. The Code forms the basis of the current regime and, as will be seen, provides the starting point from which the proposed Regulation may be examined.

11. It is noteworthy that the terms "transparency" and "openness" seem to have been treated as interchangeable. Similarly a clear distinction has not always be drawn between "access to documents" and "access to information". This can cause confusion. Our focus in this Report is on access to documents, which we regard as an important aspect of access to information. Access to information is in turn an essential constituent of openness.

THE CODE OF CONDUCT

12. The Code of Conduct sets out the following general principle:

'The public will have the widest possible access to documents held by the Commission and the Council.'

The Code contains no restriction on who can apply. The applicant does not have to be a citizen of or live in the Union. Nor is he or she required to give any reason for wanting to see a particular document or documents. 'Document' is defined as 'any written text, whatever its medium, which contains existing data and is held by the Council or the Commission'. The Code of Conduct also states, under the heading 'Processing of initial applications':

'Where the document held by an institution was written by a natural or legal person, a Member State, another Community institution or body or any other national or international body, the application must be sent direct to the author.'

This is the so-called authorship rule.

13. What documents can be asked for? The Code is principally concerned with giving access to unpublished material. The Commission's guide to the subject states: "The code of conduct says that requests may be made for any written text, whatever its medium, which contains existing data and has been produced by the Commission. This means that any internal Commission document can be requested. An internal document is a document which either has not been finalized or is not intended for publication, for example: preparatory documents on Commission decisions and policy initiatives such as preliminary drafts, interim reports, draft legislative proposals or decisions; explanatory documents or other kinds of information such as statistics, memoranda or studies which form the background to Commission decisions and policy measures".

14. After briefly setting out the rules governing the submission and processing of applications for access to documents, the Code of Conduct describes the procedure to be followed where it is proposed to reject such a request:

'Where the relevant departments of the institution concerned intend to advise the institution to reject an application, they will inform the applicant thereof and tell him that he has one month to make a confirmatory application to the institution for that position to be reconsidered, failing which he will be deemed to have withdrawn his original application.

If a confirmatory application is submitted, and if the institution concerned decides to refuse to release the document, that decision, which must be made within a month of submission of the confirmatory application, will be notified in writing to the applicant as soon as possible. The grounds for the decision must be given, and the decision must indicate the means of redress that are available, i.e. judicial proceedings and complaints to the Ombudsman under the conditions specified in, respectively, Article 173 of the EC Treaty (now, after amendment, Article 230 EC) and Article 138e of the EC Treaty (now Article 195 EC).'

15. The matters which may be relied on by an institution as grounds for rejecting a request for access to documents are listed in the Code of Conduct in the following terms:

'The institutions will refuse access to any document where disclosure could undermine:

-the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),

-the protection of the individual and of privacy,

-the protection of commercial and industrial secrecy,

-the protection of the Community's financial interests,

-the protection of confidentiality as requested by the natural or legal persons that supplied the information or as required by the legislation of the Member State that supplied the information.

They may also refuse access in order to protect the institution's interest in the confidentiality of its proceedings.'

It should be noted that, with the exception of the last sentence, all the exceptions are, on the face of it, mandatory (the institutions will refuse), subject to the qualification that disclosure could undermine one or more of the listed matters.

16. In practice, what kinds of document may be withheld? The answer given in the Commission's guide is as a follows: "Bearing in mind that no exception is applied automatically and that each individual request is looked at in detail, access might still be refused if a document: relates to complaints made to the Commission, or contains information whose disclosure would harm the conduct of international relations; refers to the personnel records of Commission staff (relating to recruitment, promotion or medical files); contains a firm's trading or manufacturing secrets; is an audit report on the use of EU funds paid to companies for implementing a project about which litigation is pending; has been given to the Commission on the strict proviso that it would not be passed on to a third party; expresses the personal opinions of Commission officials or advice from a Commission department. Nor can the confidentiality be breached of certain documents that are protected by EU legislation, particularly those originating in the committees which assist the Commission in its work".

17. The Code of Conduct provided a timetable for its implementation:

'The Commission and the Council will severally take steps to implement these principles before 1 January 1994.'

The Code of Conduct was formally adopted by the Council and the Commission in separate decisions; Council Decision 93/731/EC on public access to Council documents[6] and Commission Decision 94/90/ECSC, EC, Euratom on public access to Commission documents[7]. The legal basis of these decisions was Article 151 (3) (now 207(3) EC) and Article 162 of the EC Treaty (now Article 218 EC) respectively, provisions relating to the Rules of Procedure for the Council and the Commission. Notwithstanding that implementation was effected in this way, the Code is legally enforceable by individuals, firms and others seeking access to documents. In the WWF UK case[8], the Court of First Instance held that obligations which the Commission had voluntarily assumed for itself as a measure of internal organisation were nevertheless capable of conferring on third parties legal rights which the institution is obliged to accept.

18. On 4 March 1994, the Commission adopted a communication on improved access to documents [9] ('the 1994 communication'), giving details of the criteria for implementation of Decision 94/90. That communication states that 'anyone may ... ask for access to any unpublished Commission document, including preparatory documents and other explanatory material'. With regard to the exceptions provided for in the Code of Conduct, the communication states that the Commission 'may take the view that access to a document should be refused because its disclosure could undermine public and private interests and the good functioning of the institution. ...'. On that point, the communication stresses: 'There is nothing automatic about the exemptions, and each request for access to a document will be considered on its own merits.' As regards the processing of confirmatory applications, the 1994 communication states:

'If an applicant is told that access is to be refused, and is not satisfied with the explanation, he or she can ask the Commission's Secretary-General to review the matter and either confirm or overturn the refusal.'

AMBIT OF THE CODE

19. A very large volume of EU documents, particularly Commission documents, are in any event published. Legislative proposals, Green Papers, White Papers, Commission communications and work programmes are published, in all the official Community languages, in the Official Journal of the European Communities. The Office of Publications is the largest publications office in the world. Many other documents of the Commission and the other institutions are made available in printed form and/or on the Internet. A large amount of material is thus in the public domain irrespective of the Code of Conduct. What essentially the Code is concerned with is access to documents internal to the institutions, such as records of discussions, informal or otherwise, with Member States, committees, meetings with a wide range of consumer and commercial interest groups, preparation material, documents related to the Commission's semi-juridical responsibilities, including decisions under the competition rules (ie state aid infringements, mergers, abuse of dominant market positions) and infringement proceedings against Member States.[10]

20. The Code applies to documents in all Three Pillars. The right of access therefore encompasses documents relating to the common foreign and security policy and police and judicial co-operation in criminal matters. The application of the present rules to the second pillar was confirmed by the Court of First Instance in the Hautala case.[11] Application to the third pillar was confirmed in the Carvel case[12] and in the Swedish Journalists case.[13]

ENFORCEMENT OF THE CODE

21. Enforcement of the Code is via the Community Courts or the Ombudsman. The Code provides that, if access to a document is refused, the applicant must be informed about the possibilities of redress both through judicial proceedings (application to the Court of First Instance) and complaint to the European Ombudsman.[14] A number of matters have come before the Community Courts. Two key points have been established. First, notwithstanding the informal nature of the Code itself, the Council and Commission Decisions on public access to documents give rise to enforceable rights for individuals.[15] Second, consistent with the general approach of the Community Courts to exceptions and derogations in Community instruments, exceptions in the Code to the general rule of access should be construed and applied strictly so as not to defeat the application of the general rule.[16] Complaints have also been brought before the European Ombudsman, including a number by Statewatch from whom the Committee took evidence for the purposes of this report.[17] In addition the European Ombudsman, has, within his mandate[18], sought to promote openness in the Union institutions and bodies more generally. In particular he has undertaken the own initiative enquiries described in the next paragraph.

OTHER EU INSTITUTIONS AND BODIES

22. The Council and Commission Decisions adopting the joint Code of Conduct apply only to requests for documents addressed to those two institutions. They do not apply, for example, to the Community Courts or the European Central Bank or to bodies such as Europol. However, the present situation is that almost all the Community institutions and bodies have rules on access to documents. The reason for this is that in 1996 the European Ombudsman undertook an own-initiative inquiry into the possible adoption by other Community institutions and bodies of rules on public access to documents. He asked if they had rules and if not would they be prepared to adopt them. As a result 14 institutions and bodies adopted rules along the lines of the Code of Conduct. Their legal basis is, similar to that for the Council and Commission rules, the power of internal organisation. A follow-up inquiry was launched in 1999, including the new bodies such as the European Central Bank. The outcome is that 16 (that is almost all) of the institutions and bodies have adopted and published their own rules on public access. The Ombudsman also made a draft recommendation that Europol should adopt such rules. Europol has accepted the Ombudsman's recommendation and will apply the same rules as the Council.

ACCESS TO INFORMATION

23. The Code of Conduct only deals with access to documents, though, as mentioned in paragraph 11, the principle of openness is generally understood to be wider and to include both access to information and to documents. To some extent the European Ombudsman has sought to make good this shortcoming of the Code. In his first Annual Report (1995) he made clear that an unjustified failure to provide information on request is one of the possible categories of maladministration. Further, following an own-initiative inquiry, the Ombudsman has prepared a model Code of Good Administrative Behaviour, which he has recommended all the Community institutions and bodies should adopt. The Code is drafted in the form of obligations imposed upon officials and includes a duty to provide information on request.[19] As a general principle, where an institution has the information that is requested, then it should make that information available unless there is some good reason (such as legitimate confidentiality or disproportionate cost of production) for not doing so.

24. The Ombudsman has recently transmitted to the European Parliament a special report on the outcome of this initiative. His conclusion is that it seems unlikely that it will be possible to achieve rules of good administrative behaviour which apply in a uniform way throughout the institutions and bodies of the Union, through their adoption by each institution separately. The Ombudsman has therefore suggested to the European Parliament that it might be appropriate to adopt a law on good administrative behaviour that would apply to the Community institutions and bodies. Part of the contents of such a law could be a general duty to supply information on request such as that presently found in the Ombudsman's model Code of Good Administrative Behaviour.[20]

REGISTERS OF DOCUMENTS

25. The Council has, on the basis of guidelines adopted on 19 March 1998, created a register of Council documents to enable the public to pinpoint documents to which access is sought. The register contains a series of key items allowing Council documents drawn up since 1 January 1999 to be identified, viz: title, reference number, a reference to the originator, and the addressee of the document, the dates on which it was produced and archived and, where appropriate, the date of the meeting to which the document pertains. The register appears on the Council's website (http://register.consilium.eu.int/utfregister/infoEN.htm). As its instructions indicate, the fact that a document is listed in the register does not prejudge the Council's response to any request for access. That is why the register does not allow the contents of documents to be displayed. Since the register has gone on-line on the Internet, a variety of parties, including civil liberties environmental groups, business interests and academics, have come to realise the value and utility of the register.

26. The Commission does not have a register of Commission documents as such. But the Commission's website, under pages entitled "The President's Mail". purports to give access to all Mr Prodi's correspondence, incoming and outgoing. Members of the public can request copies of particular items, but there is no list of documents and accessibility is dependent on the search engine. In order to obtain a copy it seems necessary to have certain information such as the name of the sender and/or recipient, date and subject matter. So it is not at all user friendly. The website also points out that, consistent with the Code of Conduct, copies of certain documents may be refused on the grounds set out in the Code (listed in paragraph 15 above). As already mentioned a large amount of material is published by the institutions. The Commission's website also includes a section entitled Official documents, which has pages dealing with Work Programmes, Action plans, Guidelines; Green Papers; White Papers; the Bulletin of the European Union: Communications; Reports; Press Releases; and Grants and loans from the European Union.

1 Q 183. Back

2 Tony Bunyan observes that prior to 1993 "the cloak of secrecy was an essential part of the Council's methodology". Secrecy and Openness in the EU. (p.1). Referring in turn to Martin Westlake The Council of the European Union (p. 145). Back

3 Communication 93/C 156/05. OJ 1993 C 156, p. 5. Back

4 Communication 93/C 166/04 OJ 1993 C 166, p. 4. Back

5 OJ 1993 L 340, p. 41. Back

6 OJ 1993 L 340, p. 43. The decision was adopted on 20 December 1993. Back

7 OJ 1994 L 46, p. 58. The decision was adopted on 8 February 1994. Back

8 Case T-105/95: WWF UK v. Commission [1997] ECR II-313, at para 55. Back

9 OJ 1994 C 67, p. 5. Back

10 Q 183. Back

11 Case T-14/98 Heidi Hautala v. Council Judgment of 19 July 1999. Back

12 Case T- 194/94 Carvel and Guardian Newspapers v. Council [1995] ECR II-2765. Back