Select Committee on European Communities Sixteenth Report


27. In this part of our Report we summarise the evidence and make a number of detailed comments and recommendations on particular Articles of the draft Regulation. Part 4 contains our general reactions and conclusion. It also includes a summary of the recommendations made below.

The importance of openness

28. The legal nature and constitutional significance of public access to information varies between States. Professor Curtin, University of Utrecht, said that historically in certain countries, such as Sweden and the United States, access to information was closely associated with the notion of democracy and democratic citizenship. The link between providing the public with access to information and enabling them to participate in and deliberate upon issues of public importance had been very explicitly made. In other countries, such as the Netherlands, access to information has been perceived as an aspect of freedom of expression and perhaps also as a fundamental human right.[21] There were other systems that regarded access to information simply as an aspect of administrative procedure or an aspect of good administration or good governance. All the different strands of thought were represented within the Member States of the European Union. So far as the Union was concerned, what was especially important was the addition made by the Amsterdam Treaty to Article 1 TEU of the words "in which decisions are taken as openly as possible". Professor Curtin said: "this indicates the fundamental importance of the principle of open decision-making for the nature of the European Union as it is evolving". In her view Article 1 had to be construed dynamically and was not limited to the end of the decision-taking process. It was also about giving access or insight into, and the opportunity to contribute to, the decision-making process while it was going on as well as scrutinising what had happened afterwards (QQ 1-4, 6).

29. This approach to openness in the Union was shared by a number of witnesses. The World Wide Fund For Nature (WWF) said: " openness in the Community institutions is critical to enable the public to contribute to the making of policy, for the actions of Government to be properly scrutinised and evaluated, and for decision-makers to be held accountable" (p 59). Statewatch, a voluntary group working on civil liberties in the EU, also saw openness as an important element in the democratic process, enabling the citizen to participate in the decision making process. Mr Bunyan said: "The issue of openness and information is closely connected to politically active civil society being able to play its proper role. You cannot have one without the other". Having documents and information available in advance provided the opportunity to influence the making and content of decisions (Q 36).

30. In a speech at the European Parliament[22], the European Ombudsman, Mr Söderman, said:

"Experience shows that an open administration, which is practised in many Member States, allows the citizen to obtain the information needed to call the administration to account for its actions and omissions, and so promotes a high level of public debate and enhances the possibilities of rational consent and participation. Furthermore openness seems to work against corruption, while a closed and confidential handling of public affairs provides opportunities for fraud and other illegal activities".

31. Ms Britta Lejon, Swedish Minister for Democratic Issues and Public Administration, said: "European co-operation depends on the confidence of the European people. In order to increase this confidence more openness is vital. Not least, the recent Commission crisis has shown the need for improved accountability and we strongly believe that the public right of access to documents will serve this purpose … Freedom of information is not only important to the citizens who seek knowledge and understanding of the EU decisions, it also works as a preventer against corruption and a promoter of efficiency" (Q 201). Mr Keith Vaz MP, Minister for Europe, said that the Government was "very positive about openness". A spirit of openness was important, especially in an institution and organisation that might seem remote to the ordinary citizen. The Government would be "as positive and constructive as possible" in the negotiation of the Regulation (Q 151).

General reactions

32. The Government welcomed the proposal. The Minister, however, said: "One of the problems with access to information and freedom of information is the lack of clarity. Before the system is changed we need to make sure that people are clear as to exactly what they are entitled to receive" (Q 156). The Euro Citizen Action Service (ECAS) said that the legislation should in no instance be a step backwards by comparison with the existing practice under the Code of Conduct. That would be contrary to the progression from the Maastricht to the Amsterdam Treaty and contrary to the commitment made in the Amsterdam Treaty (Article A TEU) (p 150).

33. The Swedish Government saw the purpose of the new rules as being to increase openness. However, the Commission's proposal did not fulfil the requirements of a clear, well-balanced system for access to documents, nor did it achieve more openness and less room for arbitrariness than the existing rules. The Swedish Government acknowledged that there were some positive elements in the proposal such as the inclusion of incoming documents in the scope, a duty to set up registers of documents and a right to an edited version of a document where only part was covered by an exception (right of partial access). But in order to increase openness of the institutions there should be clear and precise provisions, which only limited access where it was necessary in order to protect certain important interests. The Swedish Government was critical of the list of exceptions proposed in the Regulation (p 104, Q 202). Other witnesses also acknowledged that these elements of the proposal were an improvement on the Code. Similarly, the view was reiterated that the Regulation could go further in providing openness.

34. Ms Preston, for the Commission, emphasised the importance of the Regulation making access to documents a legal right. "It is not a voluntary code any more, it is not something which the institution is generously offering to the citizen. It is something which is a right and I think that is obviously very important as a basis for going ahead" (Q 234). Other witnesses acknowledged this change. The Bar European Group (BEG) welcomed the fact that rights of access to Community institutions' documents would, for the first time, be governed by Treaty provision (Article 255 EC) and that those rights would be enshrined in primary legislation rather than, in the case of the current Code of Conduct, as an adjunct to the internal rules of the institutions concerned. But despite this benefit and other advantages the proposal contained a number of provisions which were of concern (pp 48, 51). The Newspaper Society welcomed the fact that the Amsterdam Treaty had given openness an explicit legal foundation in the Treaties. Though the Regulation contained "many good things" there remained "several areas of concern" (p 151).

35. The Consumers' Association (CA) said that consumers in Europe, and particularly in the UK, had been hit by a series of major scandals. "The direct causes may have been different in each case, but there has been a common theme; namely, that by the time consumers had found out what had gone wrong, or the full extent of the damage had become clear, it was too late. Consumers and taxpayers had picked up the pieces and paid the price for decisions made behind closed doors. There is a very real need for meaningful freedom of information legislation both at national and European level". CA welcomed the proposal in so far as it would introduce a statutory right of access to documents and information. But CA had "major concerns" about the Regulation as currently drafted (p142).

36. Mr J W Amos and Dr R S Baxter, from the Constitution Unit, University College London, ("Amos and Baxter") said: "Superficially, this proposed Regulation promises a very open regime with citizens having a wide right of access to information held by the European Union institutions. On closer reading, however, the intended regime is far from open because of the large number of restrictions placed on the rights of access to information". They also expressed concern over the lack of clarity of the drafting and could foresee that when implemented by officials within the institutions "The effect is likely to be uncertain, variable and unpredictable" (p 133).

37. Other witnesses were more condemnatory. The Ombudsman stated that, in his view, the Commission's proposal did not meet the intention of those who drafted the Treaty of Amsterdam.[23] In the view of the European Environmental Bureau (EEB), a federation of environmental organisations in Europe, the proposal was a "shocking failure to deliver on the Amsterdam Treaty's promise of more openness in Community decision-making". The Regulation could make the present position worse and at least as far as environmental information was concerned the proposal conflicted with the Aarhus Convention.[24] In the EEB's view the importance of this Regulation went beyond the question of access to documents. The credibility of the EU was at stake in the eyes of its citizens. The proposal's "poor rules" would result in the exact opposite of what was intended by the Treaty of Amsterdam in terms of decisions being taken openly and close to the citizen (p 51, Q 73).

The Code of Conduct

38. It was acknowledged that the current system, based on the Code of Conduct, had provided a considerable degree of openness. Lord Williamson of Horton, a former Secretary General of the Commission, doubted whether there was widespread dissatisfaction with the way in which things presently worked. "Of course you could always make improvements but generally I am satisfied with the operation of the Code of Conduct, and in general I think that that was shared by most people who came to use it". (QQ 184, 196). Mr Keith Vaz MP, Minister for Europe, said that the Government was generally content with the way the Code of Conduct had worked in practice. (Q 153). Euro Citizen Action Service (ECAS) said that it was a tribute to the departments that had managed the access to documents regimes that a vast majority of requests had been granted, despite widely defined exemptions (p 151).

39. Both the Minister and Lord Williamson of Horton pointed to the statistics which show that a large proportion of requests for documents received a positive response. In the case of requests to the Commission, in 1997 91.9 per cent received a positive response. In 1998, the percentage was 93.5 and, in 1999, 82.8. The Minister said that in 1999 over 85 per cent of the documents sought from the Council had been granted. The United Kingdom had usually argued in favour of their release (Q 153). Further statistical information relating to the operation of the Code can be found in Appendix 3.

40. Professor Curtin described how practice had evolved under the Code of Conduct and pointed to the important role played by the Community Courts in defining the scope of the Code (its application to all three Pillars) and its exceptions, and in setting out what was required of institutions when considering a request for access. She also acknowledged the active steps taken by the institutions, including voluntarily placing documents on the Internet. It had provided a considerable degree of openness, particularly in recent years (QQ 5,9,12). Mr Bunyan drew attention to the role and practice of the Ombudsman in the enforcement of the Code (QQ 40-1).[25]

41. Mr Peers, for Statewatch, acknowledged that the Code had liberalised certain aspects of access to information, including the disclosure of Council voting records and minute statements. There had, however, been systemic problems in getting access to documents (Q 37). Lord Williamson of Horton accepted that there had been difficulties. Once access to documents was formalised in the Code of Conduct "officials tended to behave in the manner in which I am afraid all officials do behave, that is to say, they started looking very carefully at the exceptions to see whether perhaps something fell into the exceptions". The formalisation of the process also gave the institutions lawyers a bigger role and they tended to be rather conservative. Lord Williamson of Horton said that the Member States were also "difficult" on anything relating to state aids and infringement proceedings because they feared information would get out early (Q 184). According to Mr Harden, for the European Ombudsman, the six years of experience of the operation of the Code demonstrated a learning process: "The institutions have learned how to deal better with applications for access, more applications for access and a higher proportion of those applications are granted " (Q 129). But Mr Peers said "Even though some of the worst practices that existed three years ago have improved, there are still some fundamental difficulties in finding out the basics of what is going on" (Q 37).

42. Mr Hontelez, for the European Environmental Bureau (EEB), said that they found the procedure under the Code "very cumbersome and slow". Further, "In all three institutions, there is not really a policy to promote access to information". EEB had had greater success in getting information informally, relying not on rights but on building relationships with officials. He spoke well of the European Parliament (though there were sometimes practical difficulties), the Economic and Social Committee, the Committee of the Regions and the European Environmental Agency. The EEB was assisting in a complaint against the European Investment Bank. Mr Hontelez described the Council as "an extremely secretive body. What is happening in Brussels in the working groups of officials is very difficult to understand. Environmental organisations of individual countries have no idea how the interests of their country are being represented in those negotiations" (QQ 69, 91,102). Mr Popham, for the World Wide Fund for Nature (WWF), expressed dissatisfaction with the way the Code had worked for the WWF. They had won their case before the Court of justice but still did not get the documents requested. Like the EEB, WWF was very dependent on goodwill for obtaining information and documents (Q 69).

43. A substantial degree of openness has been obtained by the Code of Conduct in combination with a number of other factors. These factors include effective supervision by the Community Courts, the work of the Ombudsman both in dealing with particular complaints and with general issues of openness in defining the requirements of good administration, and positive developments in the practice of the Commission and the Council in giving access to documents. In short, the Code of Conduct as interpreted and applied to date provides a useful minimum standard against which the draft Regulation can be measured and a solid foundation for taking the work forward. The purpose of the draft Regulation is "to widen access to documents as far as possible, in line with the principle of openness" (recital 12). We therefore believe that simple consolidation of the Code is not enough. Improvements are needed.

The consultation process

44. A number of witnesses were critical of the Commission's failure to consult interested parties before publishing its proposal. In a letter to the Wall Street Journal[26] Mr Söderman, the European Ombudsman, had referred to the Commission's "secretly drafted" proposal. Mr Prodi, President of the Commission was quick to respond: "Not so. The question of access to documents was discussed at a conference in the European Parliament last April, at which he [Mr Söderman] himself spoke, and which was attended by 200 representatives from a wide range of organisations. A discussion document on access to documents was widely distributed, debated and criticised. The Commission took these comments into account in preparing the draft legislative proposal".[27] Mr Prodi added that the current proposal would now be open to scrutiny. The Regulation would be adopted according to the co-decision procedure. As Professor Curtin explained, in contrast to the Code of Conduct, the European Parliament would have a direct input and could propose amendments There was also an opportunity and time for national parliaments and civil society to be involved in the debate (Q 13).

45. A number of witnesses, nonetheless, had expected the Commission to produce a consultation document. They pointed out that certain MEPs had summoned the conference at the Parliament and that discussion there had proceeded on the basis of a leaked draft Commission document put into the public domain by Statewatch.[28] In so far as there had been any public participation and openness in the procedure of drafting the Regulation, that had not been at the initiative of the Commission but at the initiative of critics of the Commission (QQ 35, 44, 71, 131). The European Environmental Bureau (EEB) listed the absence of public consultation as one of the "most notable failings" of the proposed Regulation. The failure to consult NGOs was remarkable given that the proposal was the responsibility of the same Secretariat General of the Commission as was simultaneously engaged in a wider debate about the relationship between the Commission and the NGOs, including consultation requirements (p 51, Q 71). Ms Mary Preston, for the Commission, accepted that was there was "quite a lot of justification" for the criticism of the failure to consult. There were "rather exceptional circumstances". Ms Preston referred to the resignation of the Santer Commission. The Commission's Legal Service had advised that a caretaker Commission should not initiate new legislation. By the time the new Commission was in place a lot of time had been lost and with a deadline of 1 May 2001 the decision was taken to proceed with the legislation. Ms Preston said: "We definitely lost out with that and I think there are a lot of misunderstandings about the proposal. It means we did not explain it properly but I think that we could have done that during the consultation procedure and I think we really lost out with that" (QQ 232-3).

46. We believe that the Commission can rightly be criticised for its failure to consult prior to the adoption of the draft Regulation. The collapse of the Santer Commission inevitably imposed some constraint on officials launching new policy initiatives. But some substantial initiatives were in fact launched (such as the White Paper on reform of competition procedures[29]). Moreover it is difficult to see how the issuing of a discussion paper and conduct of a consultation exercise could be regarded as objectionable or in any way improper when the Treaty itself mandated the Commission to act and legislation is required to be adopted within a specific limited time-frame. An important political opportunity was missed. Extensive external consultation would have demonstrated commitment to openness. It might have gone some way to restore to the institution some of the legitimacy and credibility it lost with the collapse of the Santer Commission. We hope that the Commission will learn from this experience and that the negotiation of the draft Regulation and its implementation, including amendment of each institution's Rules of Procedure (to which we return later), will be conducted openly with full consultation of interested parties.

Relationship with national laws

47. Recital 12 raised the question whether or not Member States' laws and practice on disclosure of documents would be affected by the Regulation. The Recital excited considerable controversy as there were fears that it might undermine Member States' domestic freedom of information legislation and go beyond their existing "duty of loyal co-operation" under the Treaty. The recital provides:

"Even though it is neither the object nor the effect of this Regulation to amend existing national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyalty which governs relations between the Community institutions and the Member States, Member States should take care not to hamper the proper application of this Regulation."

Mr Peers, for Statewatch, expressed concerns with recital 12 both on grounds of law and policy. Article 255 did not give the Community power to amend national law. Nor did Article 10 EC, which set out Member States' duty of loyalty, extend so far as to require Member States to amend their national law, possibly their constitutional law, so as to automatically agree to refuse to release a document simply because the Community institutions have refused to release it (p 31, QQ 46-7, 49).

48. Professor Birkinshaw, University of Hull, described recital 12 as being "pregnant with possibility as presently drafted and not much of it to the good". He was concerned that it might have an impact on more liberal national regimes even in areas where no EU element was involved (p 140). Professor Curtin considered the provision to be "a rather clear message to the Member States and in particular to those Member States with progressive legislation". The relationship between the Regulation and national regimes had to be addressed but "the way in which it is explicitly addressed at the moment means that it could in practice reduce the rights of citizens which they currently enjoy under their respective freedom of information legislation in the various Member States, and that is a real problem" (QQ 32-3). In the view of the European Environemental Bureau (EEB), the recital suggested a suspicion on the part of the Commission that Member States with a more generous system of access to information would continue to apply that system. Member States' duty of loyalty was no more at issue here than in other EU legislative instruments. The EEB proposed that the recital and the text of the Regulation should provide that the Regulation was without prejudice to any law or practice in the Member States that would give wider public access to documents, including EU-related documents. The EEB was concerned that the proposal would inhibit Member States from actively seeking the views of NGOs on issues under negotiation (p 59, Q 119). ECAS argued that in place of recital 12 it should be made clear that the draft Regulation was a minimum standard, which should not affect easier and quicker access to EU documents which citizens might enjoy in certain Member States (p 146).

49. Mr Harden, for the European Ombudsman, said that it was frequently the case that the same document in substance would be held by Member States and by Community institutions because they regularly transmit documents and copies of documents to each other. The effects of recital 12, and the implications of the application of Article 10 EC, were uncertain in the present context, not least because of the wide diversity of Member States' freedom of information laws. But what was, in Mr Harden's view, clear was that the authorship rule (removed as regards the institutions by the Regulation) should not apply to the Member States, "that the Member States should always have to say, for example, 'this is a Commission document therefore you must ask the Commission for it'". A Member State should not under its own national legislation give access to a document that had already been refused by a Community institution. Where no decision had been taken by the Community institution, Mr Harden suggested that the principle of co-operation should imply that the Member State, when taking a decision on access, should take into account the applicable principles of Community law (Q 138).

50. The Swedish Government said that the Regulation should not affect national legislation or practices as regards access to information, EU-related or not. Community measures should leave as much scope for national decision as possible, consistent with securing the aim of the measures and observing the requirements of the Treaty. In the present context, the principle of loyalty sufficed to prevent the Member States from acting in contradiction with the Community rules. There had been no problems under the current regime. Ms Britta Lejon, Swedish Minister for Democratic Issues and Public Administration, said: "The purpose of the whole exercise is to increase openness within the European Union institutions, not to reduce openness in those Member States that have a good practice today" (p 104, QQ 203-5). The United Kingdom Government also had difficulties with recital 12. The Minister favoured its deletion. The Government wanted there to be a clear demarcation between Member States applying their national rules and the institutions applying European rules. It supported a Dutch proposal: when a Member State received an application for access to a document authored, or sent to it, by an EU institution the application should be forwarded to the institution that authored the document or sent it to the Member State. The Minister accepted that the case where a third party such as an NGO sends the same document to the Government and to the institutions was more complicated. But Mr Vaz's "first instinct" was that access to the copy held nationally should be governed by the national legislation (Q 157).

51. According to Ms Durand, for the Commission, recital 12 was just to remind Member States of the obligation of loyalty in the Treaty. "It is a bit worrying that it worries people". It was not intended to affect national freedom of information laws, though so far as disclosure of EU documents was concerned the duty of loyalty should ensure some uniformity. The issue was not a new one. The situation existed under the Code. In practice, where a Community decision on access to a particular document had already been taken Member States should follow that decision. If no decision had been taken at Community level and there were doubts about the matter then the Member State should ask the opinion of the Commission or the Council. Ms Durand said: "That is exactly what has been done so far and no problem has occurred" (QQ 287, 291-2).

52. Some witnesses saw part of the solution to the problems raised by recital 12 in changing the form of legal instrument that the proposal took. The EEB said that the proposed Regulation was directed at three of the EU's institutions and the question arose whether a decision would not be more appropriate (p 59). Statewatch said that by using a regulation, the Community was in effect potentially making the proposal binding upon Member States within their national legal order - the definition of a regulation in Article 249 EC Treaty was that it is directly applicable within the Member States. That was unnecessary in the present context and appeared to suggest an effect within the national legal orders (p 16, Q 48). The Swedish Government argued that rules made under Article 255 EC could only bind the institutions. In order to make this absolutely clear Sweden would prefer the new regime to take the form of a Decision directed towards the institutions (p 104).

53. We agree with the Minister that recital 12 should be deleted, particularly if, as the Commission suggested, the intention is no more than to remind Member States of the duty of loyalty contained in Article 10 EC. We recognise, however, that the recital reveals an issue with potentially serious political and practical implications. National freedom of information laws and practices vary but there will need to be uniformity of treatment of documents emanating from the institutions. There should be no opportunity for leakage that would undermine the EU system. Where a third party provides a document to both an EU institution and a national authority, then national law should govern disclosure of the document by that Member State. There may be situations where the national authority, if its domestic law is more liberal, should seek the views of the institution. That said, the Community system should not create any unnecessary restrictions, especially where national freedom of information regimes are more liberal. There will in practice need to be a modus vivendi. We are encouraged by the fact that no problems have been experienced to date in the operation of the Code of Conduct. This suggests that the matter need not be determined in the Regulation. It is better left to be developed by the Community Courts who are ultimately responsible for defining the relationship between Community and domestic laws.

Article by Article analysis

Article 1

General principle and beneficiaries

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to the widest possible access to the documents of the institutions within the meaning of this Regulation, without having to cite reasons for their interest, subject to the exceptions laid down in Article 4.


54. Article 1 of the draft Regulation states that citizens shall have the right to the widest possible access to the documents of the institutions. But as a number of witnesses commented that right was severely cut back by later Articles. For example, by defining "documents" in such a way as to restrict it to certain categories of "administrative documents" (we deal with the definition of documents below, when considering Article 3), Amos and Baxter said "The door is opened and then half shut" (p 133). Mr Harden, for the European Ombudsman, noted that the exclusions from the definition of "document" and the exceptions to access were drafted "in rather general terms. In practice, therefore, citizens would not so much enjoy rights as be dependent on the goodwill of officials exercising the discretion on behalf of the institution"(p 77).

55. The Consumers' Association (CA) believed that the statement of a right of access in Article 1 was desirable but not sufficient on its own. It needed to be supplemented by a purpose clause and a public interest declaration. The purpose clause should state that the key objectives of the regulation were: improving access to information; protecting and promoting the public (consumer) interest; transparency and accountability of decision making; enhancing democratic participation of citizens in Europe. The public interest declaration should state that the basic presumption underpinning the regulation was that the public interest is generally served by the disclosure of information unless clear evidence can be shown that this would cause some degree of harm as outlined in Article 4 (p 143). Amos and Baxter also argued that the Regulation should contain a purpose clause. Such clauses, they said, "help guide decision makers when they have to exercise discretion over whether information should be disclosed or withheld in the public interest. They also provide guidance to the courts in developing case law. Most foreign FOI statutes include a purpose clause. The EU should consider giving the purpose of the Regulation greater legal standing by starting Article 1 with "The purpose of this Regulation is to promote greater openness and accountability in European institutions"" (p 134).

56. The opening provisions of freedom of information legislation, as several witnesses pointed out, are especially important. They not only set the philosophical/political tone of the instrument but also help establish the legal framework for balancing the competing public and private interests involved in such legislation. Article 1, as drafted, gives citizens "the right to the widest possible access" to documents "without having to cite reasons for their interest". This is a strong statement, fully compatible with the Treaties. We doubt whether anything more positive or purposive needs to be said. We recognise, however, that the strength of Article 1 has to be measured against other Articles, such as Articles 2, 3 and 4, which contain provisions which would cut back the right set out in Article 1.


57. Under the Code, access is given to any member of the public without restriction. As Professor Curtin pointed out, limiting the right of access to any citizen of the Union and any natural or legal person residing or having its registered office in a Member State was a consequence of Article 255 TEC. (Q 24). The Government believed that access to EU documents should be confined in principle to European Union citizens and persons or companies resident in the Union (Q 159). But Professor Curtin queried whether there should be any restriction on the personal scope of such a legal instrument at the level of the European Union, given that the European Union takes decisions which affect citizens who do not fall within the personal scope set out in Article 255 (Q 24). Other witnesses pointed to the interests of those in applicant States, in developing countries, and in trading partners in having access to documents on EU policies affecting them (QQ 52, 78, 81, 85).

58. Mr Green, for the Bar European Group (BEG), pointed to the lack of symmetry between Article 1(1) and Article 2(1). Under the latter, the Regulation would apply to all documents held by the institutions - i.e., produced by them or received from third parties and in their possession. Although there was no obligation on third parties to produce information for the institutions, if the institutions received them, they could then be accessed by EU citizens (Q 82). A number of witnesses doubted whether the limitation could be enforced effectively and observed that it could be easily side-stepped in practice. Mr Green (BEG) said: "The practical considerations in trying to distinguish between a third party and a non-third party seem to be immense. If you are a third party and you want information, you ask your British cousin to get it for you. That British cousin does not have to give reasons. He can simply ask for it and obtain it and provide it to the American cousin. What is the practical reason for precluding non-Europeans?" (Q 83). Amos and Baxter suggested that the EU would be better advised to conform with the Aarhus Convention and give rights of access to "any natural or legal person". Foreign FOI legislation that extended access rights to "any person" had not experienced difficulties in practice (p 134).

59. In Amos and Baxter's view deliberately excluding non-citizens or any natural or legal person residing or registered outside the Union was discrimination which would be "unreasonable and unfair" (p 134). According to Mr Harden, for the European Ombudsman, one could not deduce from the fact that Article 255 referred to a right of access for EU citizens and residents that the institutions were required to or should systematically reject all applications for access made by anyone else. If that was correct then as a matter of good administration the institutions should also have rules that apply to requests from non-citizens or non-residents. Mr Harden took the view that the most economical solution and one which avoided any danger of discrimination was to apply the same rules (QQ 141-2). Lord Williamson of Horton thought it feasible to have the Regulation and a code of conduct for non-EU citizens but "You would have to have a code of conduct for non-EU citizens which would have to be in the same form, same exceptions and so on" (Q 190).

60. A Regulation made under Article 255 EC could only confer rights of access on those citizens etc listed in that Article. Nevertheless Article 1, while fully respecting the wording of the Treaty, appears to be discriminatory and seemingly neglects the interests of others, such as citizens and residents of the applicant States and parties outside who trade in the Union. In practice there may be little, if any, practical significance in the omission of such persons because an applicant does not have to give reasons when applying for a document. Moreover, as the Ombudsman says, requirements of good administration may demand non-citizens/other persons to be treated equally with EU citizens. But it is in our view undesirable that parties should have to resort to such fictions and we see no reason of substance why the Regulation should not match the Code and give rights to all. Article 255, we accept, does not give the necessary powers to enable this, but Article 308 EC might be invoked to "top up" the Regulation. The Commission's Legal Service queried whether there was an "objective" of the Community (within the meaning of Arts 2 and 3 EC) and suggested that Article 255 might constitute a lex specialis having the effect of excluding resort to Article 308. But we would argue that all the objectives could be better achieved by the institutions acting more openly. Further, the Community's objectives and their attainment within Article 308 has to be read in the light of Article 1 TEU, which refers expressly to decisions being "taken as openly as possible and as closely as possible to the citizen".

Article 2


1. This Regulation shall apply to all documents held by the institutions, that is to say, documents drawn up by them or received from third parties and in their possession.

Access to documents from third parties shall be limited to those sent to the institution after the date on which this Regulation becomes applicable.

2. This Regulation shall not apply to documents already published or accessible to the public by other means.

It shall not apply where specific rules on access to documents exist.


61. Witnesses generally welcomed the removal of the so-called authorship rule. At present requests for documents that an institution has received from a third party are refused on the grounds that the applicant must apply to the author of the document concerned. The Code deals only with documents that the institution itself has drawn up. The Regulation would, in addition, apply to documents received from third parties and in the possession of the institutions. The Government described the change as "one of the steps forward" in the Commission's proposal (Q 155). Ms Preston, for the Commission, said that the change would bring the Community regime into line with those of most Member States (Q 234). Euro Citizen Action Service (ECAS) said that for NGOs it was particularly important to have access to submissions from other lobbies. Removal of the authorship rule was "a step forward" (p 151). But it was suggested that the effect of the change might be quite limited in practice. Mr Harden, for the European Ombudsman, said that the list of exceptions in Article 4 included "the protection of confidentiality as requested by the third party that supplied the document or the information or as required by the legislation of the Member State". This appeared to mean that anybody has the right to send a document to a Community institution in secret, without giving any reason (p 77). (We deal with the question of the scope of the exceptions below.)

62. We acknowledge that the removal of the authorship rule is a step forward. We share the concern expressed that the measure of any benefit of removal of the rule will be dependent on the extent of the exceptions in Article 4, especially that for confidentiality in Article 4(d).


63. Under Article 2 (2), the Regulation shall not apply to documents already published or accessible to the public by other means. Statewatch said that the provision looked innocuous. But it referred to the present practice whereby once a measure has been published by the Publications Office of the EC (eg in the Official Journal) then documents were not provided by the Commission to applicants (who may have to purchase complete and possibly expensive copies of the OJ). Moreover, documents published in the Official Journal were not the same as the actual documents which contain specific document references enabling a document to be located in the decision-making process. Nor, in Statewatch's view, would it be acceptable for this provision to be applied to documents "published" on the Internet - this would assume that all citizens have access (p 16). Professor Curtin expressed similar concerns (Q 25).

64. The Court of First Instance has taken the view that it was not the purpose of Commission Decision 94/90, implementing the Code of Conduct, to establish a right of access to documents already accessible by reason of their publication in the Official Journal.[30] Nor do we believe that is the intention of Article 255 EC. The essential purpose of "access to documents" is satisfied if the documents are freely (ie generally) available. It must be accepted that the citizen may have to pay (and thus bear some of the costs) for a document. But the price should not be excessive in relation to the actual costs. A high pricing policy would obstruct the exercise of the right of access. For that reason it would be objectionable and subject to challenge.

65. The absence of specific document references in the Official Journal or other published version of a document may be important in some circumstances. But this might be remedied generally, if the case can be made out, by the institutions retaining prior identification references in published versions, or, case by case, by the applicant requesting the information directly from the institution concerned. As we observe in paragraph 11 above, access to documents is only one, albeit important, element of access to information. The institutions need to bear in mind the broader context, and the principles of openness and of good administration, in handling such requests.


66. Article 2 (2) also provides that the Regulation "shall not apply where specific rules on access to documents exist". This limitation, in the view of the Consumers' Association (CA) and a number of other witnesses, gave cause for concern. The effectiveness of freedom of information legislation could often be undermined by its interaction with other existing prohibitions on disclosure. CA wanted existing rules on access to be reconsidered in order to see if they lived up to the need for openness in light of the Regulation (p 144). Mr Peers, for Statewatch, described the provision as "a negative change from the existing rules because the Court of First Instance established last December in Interporc II [31] that you can have both sets of rules applying at the same time, so you can try and get access to documents by two different routes. This would prevent you from using the Regulation route where another more specific route applies. So you might lose under that more specific route and then be unable to apply under the Regulation." Statewatch believed that it would be "preferable to maintain the current regime rather than to overturn it, never mind overturn it without even admitting that is what you are doing, as the Commission is actually proposing" (p 31, QQ 46, 55). Mr Popham, for the World Wide Fund for Nature (WWF), said that "specific rules" should be defined. Lack of formality and possible overlap of specific rules with the provisions of the Regulation could produce anomalies and cause substantial difficulty (Q 99).

67. Other witnesses also sought clarification of the nature and extent of the application of the specific rules clause. Amos and Baxter said that it was important to know the extent of such "rules" and whether they had a legal basis. Exclusion was totally unacceptable unless the "rules" derived from legislation. The Commission's Explanatory Memorandum was not convincing in this respect - it merely suggested that these rules should be revised "in the light of the general principle on transparency" but it put no bar on the adoption of new rules which would thwart the openness regime (p 133). The Bar European Group (BEG) also contended that the provision should be clarified. It was unclear but doubtful whether it covered specific, already regulated (though by administrative practice, notice and case-law) areas such as "access to file" in competition and dumping matters. Mr Green said: "To my mind, "rules" rather presuppose something that has a mandatory or normative nature as opposed to simply the practice of one directorate of the Commission". If Article 255 EC permitted any such exceptions, then they should be specifically incorporated into the text of the Regulation. Leaving it as it was might give "carte blanche to directorates to write themselves out of the Regulation by adopting specific and narrow rules" (p 49, QQ 92-4). Mr Hontelez, for the European Environmental Bureau (EEB), argued that if the provision was to remain in the Regulation it should be used to improve the position as regards environmental information, consistent with the obligations in the Aarhus Convention (Q 97).

68. The Government supported the retention of this provision. Mr Vaz said: "The key is that these specific rules are in some cases more liberal than the draft Regulation, so we do not want to be in the position that we should be tightening them up and levelling them down". (The Minister referred to the fact that the Community had signed up to the Aarhus Convention but had yet to introduce proposals for its implementation). The Government did not want the specific rules clause to become a means of establishing unnecessary exemptions in the future (QQ 163,166). The Swedish Government believed that the Regulation should set a minimum standard for access. It could accept Regulations that grant the public a wider access to documents but not the contrary. The Article needed clarifying and the relevant "specific rules" identified (QQ 206-8). Mr Harden, for the European Ombudsman, doubted whether the exception permitted the retention of more restrictive regimes, the intention of the Regulation being to broaden public access. He was not at all certain that it was possible, in the light of Article 255 EC, to interpret this provision as maintaining intact existing restrictions whether or not such restrictions were consistent with the broader principles set out in the Regulation. Preservation of less restrictive regimes for granting access was, however, another matter (Q 143).

69. Amos and Baxter proposed that a list be compiled of the existing "specific rules on access" throughout the EU institutions (p 134). Mr Harden took the view that at the very least a list of the relevant provisions should be annexed to the draft Regulation so that it was possible for those considering it to know the extent of the provisions in question (Q 143).

70. Ms Preston, for the Commission, explained that the intention had not been to change the current position. There existed a number of Community procedures, such as the competition rules, anti-dumping, state aid, containing rules on who had access to what information and at what stage. There were also a number of Regulations, mainly concerning enquiries, audits, and investigations, involving assistance between Member States and the institutions. These contained certain statutory requirements on confidentiality. There was no incompatibility between these procedures and Regulations and the proposal but the Commission considered it necessary to draw attention to them in the draft Regulation. There was a list that could be published. As regards the Aarhus Convention, Ms Preston said that the Commission had had regard to it but it was "a genuine problem". She said that when the Commission signed the Aarhus Convention they stated that they might at the time of ratification make reserves. One of the reserves would be that the part in the Aarhus Convention concerning access to documents would only be applied in so far as it was compatible with EC rules. If the Commission did not make such a reservation there would be two access to document regimes, one for environmental subjects (and the definition in Aarhus on the environment was very wide), and one for the rest. There would be problems in defining what was environment and what was not but the Commission could live with that. Ms Preston concluded; "Basically we are going to wait and see what the political decision is at the time when the ratification comes a bit closer" (Q 246, 261).

71. We are concerned that the final sentence of Article 2 (2) may operate as an unchecked, and potentially uncheckable, blanket exception from the Regulation. The Commission provided a note giving examples of relevant "specific rules". But it does not explain what criteria have been applied in determining the disclosure/confidentiality provisions in those rules, what has been done to ensure that they reflect a correct balance between the competing public interests, or how those provisions compare to the standard to be set in the Regulation. Moreover, the Commission's note is quick to say that it provides "une liste purement indicative et non-exhaustive". Further, Article 2 (2) contains no mechanism or standard by which such rules can be measured to justify the disapplication of the Regulation. This position is most unsatisfactory.

72. The purpose and scope of the "specific rules" clause needs to be clarified. We agree with the Government that it should not permit any levelling down or any new exception. The Regulation should only bow to better rules (possibly, for example, in environmental matters, to the Aarhus Convention). Where two regimes (the Regulation and "specific rules") are applicable, the citizen should have the benefit of both (and therefore the better) and be able to elect which procedural route to follow in the particular circumstances. We recommend that the Regulation should include, first, a minimum standard clause so as to make clear that the Regulation establishes a common minimum standard of access to all EU documents. Second, there should be a "standstill" clause so that access under other more favourable regimes cannot be reduced.

Article 3


For the purposes of this Regulation:

(a) "document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); only administrative documents shall be covered, namely documents concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, excluding texts for internal use such as discussion documents, opinions of departments, and excluding informal messages;

(b) "institutions" shall mean the European Parliament, the Council and the Commission;

(c) "European Parliament" shall mean Parliament bodies (and in particular the Bureau and the Conference of Presidents), Parliamentary Committees, the political groups and departments;

(d) "Council" shall mean the various configurations and bodies of the Council (and in particular the Permanent Representatives Committee and the working parties), the departments and the committees set up by the Treaty or by the legislator to assist the Council;

(e) "Commission" shall mean the Members of the Commission as a body, the individual Members and their private offices, the Directorates-General and departments, the representations and delegations, committees set up by the Commission and committees set up to help it exercise its executive powers;

(f) "third party" shall mean any natural or legal person, or any entity outside the institution, including the Member States, other Community and non-Community institutions and bodies and non-member countries.

A list of the committees referred to in points (d) and (e) of the first paragraph shall be drawn up as part of the rules giving effect to this Regulation, as provided for in Article 10.


73. The definition of "documents" was criticised by a number of witnesses. Since 1993 citizens have been entitled to apply for any document subject only to certain exceptions. In ECAS' view, it was "a strong feature" of the Code of Conduct that all types of document were in principle accessible. There was no evidence that access to preparatory documents under the Code had denied officials "a space to think" or caused harm to the decision-making capacity or collective responsibility of the Commission or the other Institutions. Euro Citizen Action Service (ECAS) saw no reason to go back on the Code (p 149). Both Statewatch and the Bar European Group (BEG) also contrasted the approach of the Code. No documents had been permanently excluded. Mr Peers considered the new definition to be the most important change. He said: "What that does in effect is say that a large number of what would currently be defined as documents would no longer be defined as documents and so would fall completely outside the scope of the new Regulation as compared to the existing decisions … Probably on balance, because it is so important, it means, despite some other positive changes being proposed, that the Regulation as a whole is a step backwards, because of this point alone" (p 17, Q 46). BEG said that the proposed definition did not improve on the Code: "There seems to be no good reason for the proposed change save to make less transparent that which falls within the ambit of the proposed Regulation" (p 50). ECAS considered that exempting working papers in the preparation of legislation or policy would undermine years of tentative steps towards greater transparency (p 149).

74. Professor Curtin explained the background. Under the current regime, the discretionary exception enabled an institution to deny applicants documents where access would interfere with the confidentiality of its proceedings. The Court had, from the early days, insisted that a balancing of interests must take place by the institution in question, that the institution's interest in confidentiality must be balanced against the citizen's interest in obtaining access to information. It had emerged in the run-up to the proposed Regulation that this had been very troublesome to the institutions and, in particular, to the Commission who had in recent cases sought to deny access on the basis of the mandatory public interest exception rather than have to apply the discretionary exception (QQ 9, 19). Ms Durand, for the Commission, confirmed that justifying the refusal to hand over a document in such circumstances was "difficult". The Commission had therefore abandoned the exception of secrecy of deliberation in favour of the notion of "internal document" (Q 254). Mr Bunyan, for Statewatch, described the Commission as "lazy". Under the current regime a request had to be considered and reasons for refusal given. "Here they are saying, "We do not want that nonsense. Let us get all the categories of documents outside the definition"" (Q 57).

75. Restricting "documents" to "administrative documents" and then excluding internal documents and informal messages (including e-mails) would have the effect of removing a large number of documents from public access. On the basis of his experience, Lord Williamson of Horton estimated that it would exclude "an enormous amount … certainly a large percentage". Moreover "you are excluding things which could be very interesting for the citizen". He drew attention to the exception being proposed for the "effective functioning of the institutions" and added: "This document, the new proposal, is a belt and braces document. It excludes all these administrative documents, which is a lot, and it still retains the exception "effective functioning of the institutions". It has a restriction twice … I think you need to ask whether you need both those ways of doing it" (Q 191). Amos and Baxter said: "Officials wishing to maintain a culture of secrecy could refuse most reasonable requests for information using these loopholes. Secrecy should not be encouraged through refusing rights of access to broad classes of information held by institutions: statutory exemptions exist for this purpose". In Amos and Baxter's view, the Regulation should not qualify the type of documents covered: "exclusions are the responsibility of "exceptions"" (p 135).

76. Ms Preston, for the Commission, said that the intention was not to change the system. "You asked why do we think we need space to think now all of a sudden. I think it is because there is more and more transparency. Maybe we feel the tide coming closer and we need to try and keep a little island, with a dyke round it. All national legislations have a way of keeping some internal documents confidential. The question is how to define them. We have left this rather wide definition to see what is the reaction of the Council and the Parliament". The Commission was not, however, seeking "wholesale protection". On the question of the overlap with the exception for the "effective functioning of the institutions, Ms Preston doubted whether there would, at the end of the negotiation of the Regulation be any "double protection" for the Commission. The Council had already proposed limiting the exception to "the effectiveness of the decision making procedure" (Q 253, 259).

77. Article 3 (a) seeks to perform two distinct functions. First, it defines what type of information containing medium constitutes a document. Second, it excludes all documents except "administrative" documents, which term does not include "texts for internal use" and "informal messages". While it is helpful to make clear, as the Code does, that "documents" is to be given a wide meaning so as to ensure that is not limited to pieces of paper, the second function is, in the present context, wholly inappropriate. The definition Article should not be used to exclude any particular class of documents or content of information. These are matters which should be dealt with in, and be subject to the examination required by, Article 4 dealing with exceptions. Moreover such use of the definition Article as is being proposed appears not to be were permissible under the Treaty. In this context we note that Article 255 EC does not qualify the term "document" except by reference to the institutions and any "limits" which might be imposed must be justified on "grounds of public or private interest". In principle, therefore, all documents should be accessible. We accept, however, that for practical reasons some definition or classification of documents might be necessary for determining what to list on the register under Article 9. We consider this further in paragraph 164.


78. Of greatest concern was the exclusion of internal documents ("texts for internal use such as discussion documents, opinions of departments"). Professor Curtin described this as "a considerable step back compared to the status quo". Under the current regime texts for internal use, such as discussion documents and opinions of departments, fell within the scope of access though subject to whatever exemptions might apply. Under the Regulation such documents would be exempt from any consideration whatsoever. There would be no question of the balancing of interests and exceptions (QQ 16-7). Professor Birkinshaw queried whether it was necessary to exclude all internal documents. He noted that "the domestic FOI Bill seeks to give a very wide protection in this area, wider than is common in other access regimes. The Regulation can be criticised for a similar excessive defensiveness" (p 141).

79. Statewatch said that the effect would be that most documents would be permanently excluded from public access. That "would not only exclude civil society from any role in policymaking but would fatally undermine democratic standards in the EU" (p 14). The European Environmental Bureau (EEB) argued that each and every action of a public authority was, or should be, taken on behalf of the public interest and should be open to public control and scrutiny. Mr Hontolez said: "They are responsible in everything they do towards the public that has given them a mandate". The whole purpose of access to documents was to serve this paramount interest in transparency (p 54, Q 101). The EEB considered the definition of documents was "a major step backward from the existing Code of Conduct … This provision is so breathtakingly broad that it seems designed to erect an insurmountable barrier to public understanding and scrutiny of decision-making within the institutions" (p 154). Taken with Article 9 (duty to provide access to a register of documents) "an unstated motivation for its placement in the definition becomes apparent. If 'texts for internal use' are not considered to be documents, they will not need to be identified or placed on the registers" (p 54).

80. The Commission's argument that the institutions must be able to 'think in private' was criticised by a number of witnesses. Mr Green, for the Bar European Group (BEG), said: "I simply do not know what is meant by a document giving an institution space to think. It would seem to cover all consultative documents or all internal documents where ideas are mooted and analysed. A very large number of those documents may be extremely important in informing the public, enabling them to make comments on legislation as it is passed or decisions as they are made. A large category of those documents would be precisely the sort of documents which consumer groups and interested parties would need to have access to to be informed, in order to participate in the process" (Q 100). Mr Hontelez, for the EEB, emphasised that what was important for environmental organisations was access to documents and information relating to the steps preparatory to the taking of decisions (Q 69). Mr Popham said that the World Wide Fund for Nature (WWF) was very often concerned "at the correspondence stage" of the decision making process (Q 69).

81. Euro Citizen Action Service (ECAS) took the view that discussion documents and opinions of departments should not be exempt from access. They were often impossible to distinguish from the first stage in drafting official documents, and might well be the precursors to legislation or official policy. ECAS knew of no case where access to preparatory working papers under the Code had caused resentment or damage or amounted to unacceptable interference in the Union's activities (p 149). In EEB's view, precluding all access to the documents charting the course of public decision-making was inconsistent with the notion of transparency. Mr Hontelez said: " I do not think you want to know every personal opinion of an official but inside the Commission and the Council different institutions are discussing with each other, DG Environment with DG Enterprise, or a unit with another unit. Those are not personal observations; they are institutional observations" (p 54, Q 104).

82. Mr Harden, for the European Ombudsman, accepted that the institutions needed "space to think", but considered that the relevant results of their thinking should be publicly available when a final decision has been made. For example, when a legal service produced an opinion for its institution on a matter, that opinion might go through several drafts. Nobody would want to see published the early drafts that were consigned to the wastepaper basket. But it was far less clear to Mr Harden that the final opinion, which was presented to the institution as the opinion of its legal service, was an internal document (p 78, Q 144). The EEB believed that "the scope of this limitation should extend only to identifiable individual opinion of officials, legal advice, and draft materials in the course of completion, unless they have formed part of the basis of a decision or other action and not once the decision has been taken. These limitations give the institutions sufficient "space to think" without eliminating all opportunity for public access during and after the decision-making process" (p 54). The Newspaper Society adopted the approach of the European Parliament's Committee on Institutional Affairs[32]: "formally adopted minutes, certain working documents and certain other important and widely distributed preparatory material should be generally made available" (p 151).

83. The Swedish Government believed the exclusion of internal and non-administrative documents was much too wide but could in principle accept the exclusion of preparatory documents (though a preparatory document should never be withheld once it has been sent out from an institution). This would be in line with Swedish national legislation. A document received by a Swedish authority was always an official document, as was a document sent out. Documents produced but not sent out were official when the document itself reached some degree of finality. Officials' notes and advice on, for example, Ministers' briefs were not. Notes of meetings with third parties, where information and views were shared, would be accessible (QQ 210-2, 217-8).

84. The UK Government accepted that the definition of documents needed to be tightened up. The Minister referred to a Portuguese Presidency proposal:

"A document shall mean any content, whatever its medium, written on paper or stored in electronic form or as a sound, visual or audio-visual recording, concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, excluding informal messages, contents which express opinions or reflect discussions and the provision of advice as part of preliminary consultations and deliberations within the institutions".

Even this could be improved. The Minister accepted that while the institutions needed space to think the references to "opinions" and to "preliminary consultations" might be abused and exclude from disclosure documents, such as Council working group documents, that should be accessible. A balance had to be struck. The institutions should be able to continue to work effectively and this might require candid advice to be given without fear of its disclosure (QQ 167, 169, 172-4).

85. Even if the present approach is retained it is clear that the definition would exclude far too much. The present text of Article 4 (on which we comment in more detail below) contains a specific exemption for the "effective functioning of the institutions". That is capable of rendering inaccessible, for some considerable time, any politically sensitive document, such as briefings or at least parts of briefings for Commissioners. Potentially a properly drawn exception in Article 4 should suffice - there is no need for "belt and braces". Overlapping exclusions and exceptions give out a totally wrong signal in an instrument designed to improve openness. We note that already the negotiations have produced at least one possible revision of the definition of "documents" which would exclude documents containing preliminary opinions or advice. We do not agree there should be any broad exclusion of preparatory papers or documents which include opinions or advice.


86. Witnesses were also critical of the exclusion of e-mails from the scope of the Regulation on the grounds, as stated in the Commission's Explanatory Memorandum, that they were all 'informal' or 'equivalent to telephone conversations'. The Newspaper Society disputed that assumption (p 152). Mr Bunyan, for Statewatch, said: "e-mails may indeed be part of policy development. They may be informal contact perhaps between people on the Council and the Commission. A large amount of negotiation now takes place by e-mail: "Here is a draft here", "here is a re-draft there". In other words, it is the same as a document" (Q 57). The European Environmental Bureau (EEB) considered that the exclusion of e-mail "flies in the face of reality". An e-mail message was a communication and, properly viewed, a document. The EEB believed that access to such a document should depend on its content and be tested by the same standards as apply to any other document, namely to see whether an exception applies (p 54).

87. In the view of Euro Citizen Action Service (ECAS), there had to be a way of taking care of the objection that a wide definition could discourage the use of informal internal communication and e-mail. In certain instances, disclosure of such information might be in the public interest, but in the vast majority of cases it was not. ECAS believed that the dividing line would normally be established between documents, which should be filed as archived and those that are not (p 145). Amos and Baxter also queried why institutions should be able to withhold "informal messages" - especially if they exposed malpractice (p 135). Statewatch proposed that the Regulation would only apply to documents sent or received by the officials of the institutions in their official capacity. Such a formula appeared in the protocol on privileges and immunities that always existed for the officials of the European Community. It had a legal meaning and had been shown to be justiciable (Q 59). Lord Williamson of Horton commented: "If you are looking to control the volume I think, with care, you could perhaps exclude these informal exchange of messages but it would be quite difficult to define" (Q 192).

88. E-mails should not be excluded from the scope of the Regulation. "Documents" is defined so as to catch information captured whatever the medium ("written on paper or stored in electronic form or as sound, visual or audiovisual recording"). This would clearly include e-mails and, as many witnesses pointed out, much information is created, transferred and stored in this format. There seems to be some concern that if e-mails were included then personal/private e-mail communications would have to be made accessible and listed on a public register. But personal messages are not "Commission documents" within the meaning of Article 255 merely because they were conveyed/recorded on Commission hardware any more than a shopping list written on Commission stationery or personal letter delivered at an official address. The matter ought readily to be determined by reference to the content. Information contained in e-mail should therefore be accessible to the same extent as other documents of the institutions. We discuss the implications of this for the maintenance of registers when considering Article 9, below.


89. The Regulation would apply to disclosure by the European Parliament, the Council and the Commission. The definitions in Article 3 (c), (d) and (e) make clear that the Regulation extends to all the constituent parts of the three institutions, including Parliamentary Committees, COREPER and comitology committees. Witnesses welcomed the requirement that lists of committees should be drawn up. Euro Citizen Action Service (ECAS) described it as a step forward (p 145). Statewatch also considered it an improvement on the prior rules, although the obligation to draw up lists applied to Commission comitology committees pursuant to Council Decision 468/1999 (p 32). The European Environmental Bureau (EEB) said that the Regulation should also require the list to be published and maintained up-to-date (p 54).

90. CA believed that the Regulation, in only applying to the Parliament, the Council and the Commission (para (b)), was too restrictive. It should apply to all EU institutions and bodies (p 144). Other witnesses agreed. In ECAS' view, there did not appear to be any valid reasons to go back on current practice encouraged by the European Ombudsman to spread codes to all Community bodies and agencies. A number of them, like the European Central Bank and those in the areas of health and safety, food inspection, environment and medicines held information just as important as the institutions. ECAS contended that, despite the wording of Article 255, it was not the deliberate intention of the Amsterdam Treaty to reduce the number of European public authorities applying access to documents regimes (p 145). Lord Williamson of Horton believed that in principle the regime should be extended to other EU institutions and bodies, including the Court of Auditors, the Committee of the Regions and the Economic and Social Committee. But, he added, "it is not going to be such an easy business to operate and manage as it may at first appear". He envisaged particular difficulties with the Court of Auditors, where the exception for "inspections, investigations and audits" (Article 4 (a)) would apply (QQ 186-8).

91. Mr Peers, for Statewatch, accepted that it would be difficult to define "institutions" more broadly in a regulation adopted within the scope of Article 255. But in Statewatch's view "it would be possible to adopt a regulation under Article 308 of the Treaty which would apply essentially the same principles or very similar principles, perhaps with certain exceptions, to the other institutions established by the European Community, and then similarly a measure within the scope of the EU Treaty applying to any institutions or bodies within the scope of the second or third pillar of the European Union" (Q 53). But Ms Durand, for the Commission, had doubts whether Article 308 could be used. A Community "objective" would have to be identified. The very existence and content of Article 255 might also exclude the use of Article 308 (Q 239).

92. The fact that the Regulation did not apply directly to the other EU institutions and bodies did not mean that it was irrelevant to them. As mentioned above, almost all the institutions and bodies have adopted and published their own rules on public access. Mr Green, for the Bar European Group (BEG), suggested that the Court of Justice might begin to treat the principle referred to in Article 1.2 TEU, that decisions are taken as openly as possible, as a general principle of Community law. If that were the case, the Regulation would simply be a single implementation of a broader principle and the broader principle would apply to all other bodies within Community law, including Member States. (Q 86). Mr Harden, for the European Ombudsman, said that the existence of a Regulation under Article 255, applicable only to the three named institutions, did not remove the requirement for other institutions and bodies to continue to have rules to deal with requests for access to documents as a matter of good administration. One would expect that the other institutions and bodies would review their own rules in order to ensure that they were applying the same principles (Q 141).

93. The Government thought that, in the light of Article 255, it was "appropriate" to limit the right of access to the European Parliament, Council and Commission. But the Minister added: "we will also press for a declaration calling for the other institutions to implement similar rules in respect of the release of their own documents" (Q 159). Ms Durand, for the Commission, contrasted the law (ie the restrictions within Article 255) with "the practice". "The practice has always been that when third nationals asked for a document, and when no exception applied, the document was given". She believed that the practice would continue. Ms Preston expected the other EU institutions and bodies to adopt the standards set by the Regulation. Ms Durand said that in the past it had been the Legal Service's consistent advice that they follow the same rules as the Code of Conduct (QQ 238, 244-5).

94. Article 255 EC gives a right of access only to European Parliament, Council and Commission documents. The scope of a Regulation made under that Article is therefore necessarily limited to those institutions. But in principle openness, and the rights of access, should apply to all EU institutions and bodies. We would expect, for the reasons given by the Ombudsman, that other EU institutions and bodies will in due course adopt access to documents regimes in line with the Regulation. But consideration should be given to widening the scope of the Regulation so as to include the other institutions and bodies by adding Article 308 EC to the legal base. For the reasons given in paragraph 60 above we believe that is legally possible. It is also politically desirable to unite the right of access in one instrument and to present it as a system generally and widely applicable in the Union and of which all may have the benefit.

Article 4


The institutions shall refuse access to documents where disclosure could significantly undermine the protection of:

(a) the public interest …

(b) privacy and the individual …

(c) commercial and industrial secrecy or the economic interests of a specific natural or legal person …

(d) confidentiality as requested by the third party having supplied the document or the information, or as required by the legislation of the Member State.

NB For ease of reference, the full texts of indents (a), (b) and (c) are set out before paragraphs 110, 121 and 122 respectively.


95. Amos and Baxter noted that all FOI statutes have exceptions to the general right of access to information. These tended to vary in extent and degree. Typically, they covered types or classes of information that must or can be withheld, requirements to separate out and release the non-sensitive information, and overriding reasons for disclosing the sensitive information. How these were presented in any FOI legislation was critical to their interpretation. Amos and Baxter described the proposed Regulation as "atypically structured and worded in this respect". According to Article 4, an institution "... shall refuse access to documents whose disclosure could significantly undermine the protection of ..." the public interest etc. Further, the list of exceptions was large (and certainly larger than in the Aarhus Convention), no distinction was made between mandatory and discretionary exceptions and no override was provided (p 135).

96. A number of witnesses contrasted the approach taken by the Code. The Code distinguished between those exceptions that obliged the institutions to refuse access and those that merely permitted the institutions to deny access. (The relevant parts of the Code are set out at paragraph 15 above). The latter applied to the exception for the protection of the institutions' interests in the confidentiality in their proceedings. And as the Bar European Group (BEG) pointed out, the Court of First Instance had held that when seeking to rely on that exception, the institution concerned had to balance in a genuine fashion the interests of citizens in gaining access to its documents against any interest of its own in maintaining the confidentiality of its proceedings[33] (p 50).

97. In its Explanatory Memorandum the Commission states that rights of access will be granted unless disclosure "could significantly undermine" certain specific interests. Ms Durand, for the Commission, said: "each time access to documents is not given, for example, demonstration has to be made that disclosure of the document would cause real harm to this or that particular interest"(Q 263). But witnesses questioned whether this so-called 'harm test' would be of any great value. The European Environmental Bureau (EEB) considered that since the exceptions were so many and so broad, the 'harm test' offered little hope to potential requesters. It was "little better than a rubber stamp for refusal" (p 56). Both the Swedish Government and Statewatch welcomed the use of the adverb "significantly" (Q 224). But BEG doubted its strength. Mr Green said: "If the burden is on the institution to show a risk of serious undermining of the defined interest, that is a higher hurdle to overcome than simply showing a significant undermining". BEG understood the use of the word "could". "You have to have something which permits the stable door to be closed before the horse has bolted. You have to make an assessment before disclosure. It is always going to be an ex ante analysis of risk and I suppose "could" reflects that. What is missing is a reflection of the fact that you should balance the public interest and the other interests against the private interest in disclosure". According to BEG the formulation used in Article 4 increased the scope for the institutions to refuse disclosure (QQ 108-9).

98. The EEB said that the mandatory refusal requirement ('the institutions shall refuse access') was more restrictive than many national freedom of information regimes. The proposed Regulation would require the institutions to refuse access to documents 'where disclosure could significantly undermine the protection of' one of the many interests referred to in the list of exceptions. The use of the word 'could' established too low a threshold for mandatory refusal. The EEB believed the proposal would be more consistent with good practice if it authorised, but did not require, refusal where disclosure would significantly harm one of the protected interests. This would give the institutions discretion to balance the public interest in disclosure against the particular harm that would result from disclosure. The EEB noted that the mandatory refusal requirement was also in conflict with the Aarhus Convention which states that a 'request for environmental information may be refused if the disclosure would adversely affect' an interest protected by one of a specified set of exceptions[34] (p 55). Mr Popham said that the World Wide Fund for Nature (WWF) took the view that the refusal of information should be discretionary. The Regulation should also make it clear that, in arriving at a decision, the institution should undertake a genuine balancing exercise, between the need for the public to have access to the documents and the interest of the institution in protecting the confidentiality of its deliberations. That would follow what the European Court had decided in the WWF case (Q 111). What, in the opinion of the Newspaper Society, the Regulation lacked was a "public interest override, which would enable the public interest in disclosure to be weighed against the possible harm of releasing exempt material" (p 152).

99. The Government did not favour exceptions being discretionary. Mr Vaz said: " Where an exemption is justified in our view it should be mandatory, for example, if it is a defence or security document. Where it is not justified we do not favour discretionary refusal by the institutions … Clarity is extremely important in this whole area … We are also keen to avoid any overlap and therefore potential conflict between the proposed regulation and domestic legislation. For this reason we are strongly in favour of exceptions of a mandatory nature. The draft Regulation would take precedence over domestic legislation and the Freedom of Information Bill has accommodated this through general exemption from the duty to disclose when to do so would be contrary to EC legislation" (Q 176).

100. The Swedish Government was not opposed in principle to a mandatory rule but did not consider it was suitable for every exception. The proposed exception relating to the "effective functioning of the institutions" was, for example, "more problematic". Even a mandatory exemption had to be balanced against a public interest test. An identification of some kind of harm was needed before a document was withheld, though there might be circumstances when another overriding interest demanded the release of the document (p 105).

101. The Code provides a good example of the undesirability of mixing mandatory and discretionary tests. The temptation is always there for officials to seek to shield the non-disclosure of a document under a mandatory exception. As the proposal stands all exceptions would be mandatory, though we accept that an element of judgement is introduced by the words "could significantly undermine" the protection of the interests listed in Article 4 as justifying non-disclosure. In principle we believe all exceptions should be discretionary - adapting the existing wording, the institution may refuse access to documents whose disclosure would be likely to be harmful.

102. It is not, in our view, simply a question of changing "shall" to "may". "Could" sets too low a threshold and we believe that "would be likely to" is more appropriate. The principle of proportionality requires that any exceptions to the general principle of access as stated in Article 1 of the draft Regulation must be used only to the extent that is objectively necessary and proportionate in a democratic society. In the exercise of the discretion the institution should be expressly required to undertake a balancing exercise. As the Court of First Instance said in the Carvel case when considering the discretionary exception in the current Code, the institution " must, when exercising its discretion …, genuinely balance the interest of citizens in gaining access to its documents against any interest of its own in maintaining the confidentiality of its deliberations".[35] And, as that Court pointed out in the Hautala case, the institution should also apply the principle of proportionality so as to ensure that exceptions remain within the limits of what is appropriate and necessary for achieving the aim in view.[36] A revised Article 4 should therefore make it clear that the principle of proportionality requires that exceptions to Article 1 can be used only to the extent that is objectively necessary and proportionate in a democratic society.


103. The European Ombudsman, Jacob Söderman, was highly critical of the proposed Regulation claiming that it contained a list of exemptions "... without precedent in the modern world".[37] But Ms Durand, for the Commission, said: "In practice the exceptions are public interest, privacy, commercial secrets and confidentiality where entrusted by a third party. Those are the four exceptions, which I am quite sure you find in absolutely every law on information". In order to help the citizen the Commission had sought to define what fell within the term "public interest" (Q 264). Professor Curtin believed that the wording of the exceptions compared very poorly with more sophisticated freedom of information legislation in Member States, including the recent Irish legislation (Q 23). The Commission had conducted a survey of national freedom of information laws but Mr Bunyan (Statewatch) said: "That is different from saying that they have actually gathered best practice and come to the evaluation of best practice. They have not done that" (Q 62). Ms Preston, for the Commission, queried what best practice was and doubted whether national laws produced an appropriate solution for the Community. The Commission's "point of departure was the Code, because that has worked well and it has worked well for the Council and it has worked well for the Parliament" (Q 262).

104. As a number of witnesses pointed out, the list of protected interests (or exceptions) is long and apparently more extensive than under the present Code of Practice operating in the Council and Commission. The Commission claimed that the wording of the exceptions had been spelled out more clearly. But, according to Amos and Baxter, "This assertion is questionable" (p 133). Mr Popham, for the World Wide Fund for Nature (WWF), said: "That is a euphemism for "any discretion has been removed and the exceptions have been made as comprehensive as possible" (Q 112). Professor Curtin said: "the only thing that the Commission has done is to put a lot more under the heading "public interest" than it previously did and to add a few categories that have come up in the context of certain court proceedings before the Court" (Q 21). The Bar European Group (BEG) said: "The problem with the long enumeration of specific categories of excluded areas is that it weakens the powers of the Community courts to oversee the Regulation and in particular the Community institutions' exercise of discretionary powers thereunder to exclude or restrict access to Community documents. This is an unwelcome development which should be fought against" (p 51).

105. In Lord Williamson of Horton's view the list of exceptions was "substantially wider" than the current one: "it simply is not true that we are just producing the same exceptions" (Q 194). For the Government, Mr Vaz said: "Article 4 appears longer but this is due largely to the Commission's attempt to define the list more clearly. Some of the additions to the list of exemptions are sensible and necessary if we are to achieve other objectives in the European Union, for example, an effective EU military capability which will require some confidentiality. That said, we agree that the list should not get out of hand. We need a general level of protection for sensitive texts but the key is to make exemptions as precise as possible and to minimise the possibility of the catch-all exemptions" (Q 176). The Swedish Government took the view that Articles 1 and 4 did not fulfil the demand for a presumption of openness and for clear and precise restrictions. The scope of restrictions must under no circumstances be made wider than under existing rules. The Swedish Government advocated that a more detailed list of restrictions and more varied harm-tests should be elaborated (p 105, Q 224).

106. The Consumers' Association (CA) called for Article 4 to be redrafted considerably. The exceptions were too broad and vague, and the tone of the Article seemed designed to allow officials to find excuses not to release information, rather than encourage disclosure in the public interest. It seemed to imply that the protection of the public interest lay in refusing access to information. CA believed that the public interest would be better served by an Article that stated that information should be disclosed unless it caused substantial harm or prejudice to certain interests. CA said: "We have serious reservations that the exceptions as currently phrased in Article 4 could be used to withhold almost any information relating to regulatory affairs, EC policy formulation, or commercial interests" (p 144). Mr Popham said: "as drafted WWF can think of no document it could request which could not be made to fit one of the categories if the institution from which the document had been requested did not want to provide it" (Q 112). Ms Preston, for the Commission, responded: "But … that assumes that every document he asks for significantly undermines one of those interests" (Q 265). Mr Green, for BEG, believed that much would depend on the approach taken by the Court of Justice. "If the Court makes very clear that the basic right contained in the Regulation is to be given the widest possible application and that the derogations contained in Article 4 are to be given the narrowest reasonable scope, it is possible that the institutions will take heed of that and adopt a more open, transparent procedure". The Court had always construed exceptions and derogations narrowly and the extent to which the Court imposed on the institutions proper duties to explain their reasons for refusing documents would be critical (Q 72).

107. Mr Harden, for the European Ombudsman, expressed concern about the implications of the length of the list of exceptions and the looseness of the drafting for the practical application of the Regulation. "The ideal situation is one in which most requests for documents could be dealt with straightforwardly by relatively low level staff, so that a secretary can know that this is the class of document which is always given out and therefore if we get a request, it is given out, or, this is the class of document which is always secret and therefore it is not given out. The difficulty I see in applying the provisions in the draft Regulation is that they require really quite high level judgment. The danger is that most decisions will be fed upwards to higher authority within the Commission for decision" (QQ 135,137). Mr Hontelez, for the European Environmental Bureau (EEB), feared that "Words like "shall refuse access to documents" mean that even parts of the Commission who would like to have a more open relationship could be prevented from that by other parts of the Commission who feel that that should not be the case" (Q 111). Lord Williamson of Horton also thought that there would be difficulty in officials operating with this wider range of exceptions. "They have got used to the slightly lesser range and now they have got more things to examine and think about when they get a request for a document. I think they will find it a bit more difficult actually and in particular they will find it very difficult to deal with the one on "relations and/or with the Member States or Community or non-Community institutions". There are an awful lot of documents that could fall into that domain" (Q 197).

108. The list of exceptions appears to go further than those in the Code of Conduct. Notwithstanding that the general approach of the Community Courts is to construe exceptions narrowly, some individual exceptions could remain potentially very wide. This is a matter of fundamental concern. Given the importance of public access in permitting democratic participation and transparent government, restrictions on the right of citizens to freedom of information should be subject to particularly strict scrutiny. In assessing the scope of the exceptions contained in Article 4 of the draft Regulation, the importance of public access for good government and healthy democratic processes should be a paramount consideration. Accordingly a convincing justification for restricting the exercise of the right of public access must be shown.

109. Having regard to the nature of the right concerned and the importance attributed to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by Article 6(2) TEU, the Regulation should be measured against the standards set by the ECHR when defining limitations that may be legitimately claimed by EU institutions to restrict access to information. In the absence of a cogent and convincing justification, the exceptions to the right of public access to EU information should be no wider under the draft Regulation than the exceptions to Articles 8 (2) and Article 10 (2) of the ECHR.[38]
Article 4

Paragraph (a)

(a) the public interest and in particular:

 —public security,

 —defence and international relations,

 —relations between and/or with the Member States or Community or non-Community institutions,

 —financial or economic interests,

 —monetary stability,

 —the stability of the Community's legal order,

 —court proceedings,

 —inspections, investigations and audits,

 —infringement proceedings, including the preparatory stages thereof,

 —the effective functioning of the institutions;


110. Ms Durand, for the Commission, said that in order to help the citizen the Commission had sought to define what fell within the term "public interest" (Q 264). But the European Environmental Bureau (EEB) said: "This catalogue of exceptions, undeservedly masquerading under the collective notion of 'the public interest', establishes a set of loopholes large enough to permit the entire Community decision-making process to disappear from sight" (p 56). Mr Keith Vaz MP, Minister for Europe, believed that "the only exception" would be where there were important security issues as we developed the defence and security policy (Q 152).

111. Amos and Baxter noted that Article 4(a) was the only category of exception that made specific reference to the "public interest" and, as drafted, it appeared that "the public interest is only served through non-disclosure!". In their view the introductory reference to "public interest" should be deleted and Article 4 should merely list the given exceptions (p 136). In Statewatch's view, an important point was that the Regulation should say the list of exceptions was exhaustive. Mr Peers said that the use of the term "in particular" at the end of sub-paragraph 8 suggested that they are non-exhaustive. "That would mean that the Community officials can make up new exceptions whenever they feel like it". Any addition to the exceptions should be subject to the Community's legislative procedure (Q 60).


112. Witnesses were critical of the apparent width of the exception for "relations between and/or with the Member States or Community and non-Community institutions". In the EEB's view this seemed to be "all encompassing and capable of covering virtually every communication between the institutions and others" (p 56). Mr Harden, for the European Ombudsman, described this exception as "potentially very wide. Given the structure of the European Union, most of the interesting things that the institutions and bodies do involve relations with the Member States, with other Community institutions or with non-Community institutions. It seems likely that most of the documents which anyone might want to see could fall within this category" (p 78). Lord Williamson of Horton agreed: "The Member States love that in there … because it deals with all the sorts of things that the Member States are much concerned about in Council discussions". He thought that the phrase would also encompass practically everything that went on in COREPER and in Council Committees (Q 194).


113. The Code of Conduct protects "the Community's financial interests" but the proposed Regulation refers to "financial or economic interests". The EEB asked whose 'financial or economic interests' would be relevant. It would appear not to be just the Community's. The need for a wider exception had not been explained (p 56).


114. An exception for "the stability of the Community legal order" is also new. Professor Curtin believed this exception to be based on "questionable interpretations" of the language used in certain decisions of the Court of First Instance,[39] where protection had been given to opinions of the Legal Service of the Council and communications between the Commission and national courts (Q 21). The EEB asked: "What document request does the Commission think could overthrow the Community legal order, whatever that is understood to be?" (p 56). Ms Jäderblom, Swedish Ministry of Justice, said: "We accept the protection of equality of arms during court proceedings etc but this interest is strange to us" (Q 224). Mr Peers, for Statewatch, acknowledged that the exception had some basis in law but appeared to go further than the existing case law of the Community courts. The stability of the Community legal order could go well beyond access to documents of the institutions' legal services. Statewatch saw no convincing reason for the exception to go further than such documents and had doubts even as to whether they should be excluded, except in cases relating to pending proceedings before the Court of Justice (QQ 46,60).


115. Also new is an exception for the protection of "infringement proceedings, including the preparatory stages thereof". Professor Birkinshaw noted that this provision would exempt an important area where the practices of the Commission have been criticised by the European Ombudsman (p 141). Lord Williamson of Horton drew attention to the implications of the reference to "preparatory stages" - in practice they might go on for a very long time (Q 194). Mr Peers, for Statewatch, said: "It is not quite clear how far the case law allows infringement proceedings documents to be excluded but the way the Regulation is worded would settle this point. Even reasoned opinions issued during the infringement proceedings would definitely be excluded and it is not yet clear from the case law that they are excluded". Mr Peers drew attention to the concern that had been expressed by the European Ombudsman about the lack of public information and complainants' information on infringement proceedings. Statewatch believed that there should be more information available about why the Commission terminated infringement proceedings. The public should be in a position to judge whether the Commission acted appropriately in deciding to close the proceedings (QQ 46, 60).

116. According to Mr Harden (European Ombudsman) this proposed exception indicated that the Commission intended to keep secret everything to do with its role of enforcing Community law, including the lobbying that goes on. The secretiveness of the Commission's procedures had been criticised by many citizens, especially those who have complained to the Commission about infringements of Community law by a Member State. These procedures should be made more transparent, not less. In Mr Harden's view this category of "public interest" should be deleted (pp 78, 81).

117. The EEB explained that infringement proceedings often originated with a complaint from a citizen or company and complainants had experienced difficulty in learning what has happened with their complaints. By specifically mentioning the preparatory stages of infringement proceedings, which might include the investigation of a citizen's complaint, the new exception threatened to preclude access for the very citizens or organisations responsible for starting the process leading to an infringement proceeding. No justification for this exception had been given. The EEB contended that even if there was one, the exception should be narrowed so that the complainant's right of access to documents was protected (p 56).


118. The Code of Conduct currently protects "the institutions' interest in the confidentiality of its proceedings". The proposed Regulation provides an exception for "the effective functioning of the institutions". Lord Williamson of Horton explained the significance of the change. "I can absolutely assure you that those who operate these systems would treat those as quite different proposals. "Confidentiality of the proceedings" is seen to cover such issues as where there is a confidential minute recording the views specifically by name, for example, of Commissioners or representatives of Member States in the Council and so on and they might not wish to be quoted like that word for word. That would be seen as "confidentiality of its proceedings". Everybody would understand that. If they were told now that it is the "effective functioning of the institutions" it would have to be treated much more widely. I think there are quite big differences" (Q 194).

119. In the view of Euro Citizen Action Service (ECAS) turning the present discretionary exception into a mandatory one was a major step backwards: "The European Parliament must insist on removing this clause, which is in contradiction to the right of access established by Article 255" (p 148). The EEB asked: "Does this extraordinarily vague and broad exception mean that EU law and policy must be made in secret if the institutions are to be effective? How much trust should a citizen have in an institution that dares not function in openness?" (p 56). Mr Harden, for the European Ombudsman, said that the inclusion of this exception as a new category of public interest seemed to be intended to abolish the rule, established by the Courts, that an institution must strike a balance between its interest in the confidentiality of its proceedings and the applicant's interest in disclosure of the document. The exception seemed unnecessary and could be deleted (p 81). BEG said: "This vaguely-worded exception may well be used by the institutions to restrict access, in circumstances where it might otherwise be available, and given the mandatory nature of the provision, the institutions do not need to demonstrate that they have carried out any balancing exercise" (p 50).

120. The Swedish Government said that this exception was not acceptable: "It is a firm Swedish belief, through centuries of national experience, that access to documents will make the institutions more efficient in the long run" (p 105). Ms Preston, for the Commission, believed that scope of the exception would be narrowed. The Council had already proposed limiting the exception to "the effectiveness of the decision making procedure … " (Q 259).
Article 4

Paragraph (b)

(b) privacy and the individual, and in particular:

 —personnel files,

 —information, opinions and assessments given in confidence with a view to recruitments or appointments,

 —an individual's personal details or documents containing information such as medical secrets which, if disclosed, might constitute an infringement of privacy or facilitate such an infringement;


121. Witnesses appeared to be generally content with this provision. Amos and Baxter presumed that the list was not exhaustive and that any information about a named individual must be withheld. The current drafting was somewhat ambiguous in this respect. They also noted that many FOI statutes allowed the release of information after names have been suppressed or the owners have given their permission. This was a sensible condition. For consistency and clarity, consideration should be given to amending this exception to read simply as "personal privacy, unless authorised by the named person" (p 136). ECAS had no doubt that there should be a clear mandatory exemption for privacy and said that further measures to protect privacy should be included in the Regulation (p 147). Amos and Baxter and also Professor Birkinshaw observed that the institutions should handle personal information with due regard to the 1995 Data Protection Directive (pp 136, 141). ECAS emphasised the importance of the right of individuals to inspect their own files. ECAS argued that the Regulation should contain a commitment to implement Article 286 of the EC Treaty. Community measures on the protection of personal data (the Data Protection Directive no. 95/46/CE) should also apply to the EU institutions (p 147).
Article 4

Paragraph (c)

(c) commercial and industrial secrecy or the economic interests of a specific natural or legal person and in particular:

 —business and commercial secrets,

 —intellectual and industrial property,

 —industrial, financial, banking and commercial information, including information relating to business relations or contracts,

 —information on costs and tenders in connection with award procedures;


122. Amos and Baxter set out the reasons why, in the current social climate, it was not unreasonable that citizens should have rights of access to commercial and industrial information held by EU institutions. The disclosure of such information might:

contribute to the administration of justice and enforcement of the law;

reveal and avoid serious malpractice, impropriety, fraud or breach of public law;

ensure effective oversight of expenditure of public funds;

keep the public adequately informed of any danger to public health or safety or to the environment;

ensure that any public authority with regulatory responsibilities is adequately discharging its functions;

ensure the public obtains value for money; and

avoid waste or misuse of public funds.

But they noted the diversity of approach in Member States to the question of disclosure of information of commercial value. They believed that it would be better to simplify the wording in Article 4 so that this exception read simply as "commercial interests of any person". In addition comprehensive guidance (to be included in the Rules of Procedure of all EU institutions) should be prepared on the interpretation of "commercial interests" and how these might be "significantly harmed" by the disclosure of information (p 137).

123. The EEB doubted whether a more sweeping exception for business information could be formulated. The Regulation needed a more precise exception which goes no further than is necessary to protect legitimate trade secrets the confidentiality of which has been expressly requested and the disclosure of which would harm a commercial or industrial interest by helping a competitor (p 56). ECAS also thought that any exemption on the grounds of commercial and industrial secrecy should be narrowly defined (p 147). Both the EEB and ECAS considered that Article 4 (4) of the Aarhus Convention, referring to areas where confidentiality is protected by law, provided an appropriate precedent. ECAS added: "a clear distinction has to be made between documents commenting on the market situation in general, and the information which should not be released since disclosure would have a direct impact on the competitive position and market share of the organisation or company concerned, and/or result in financial loss. In other words, it has to be shown that disclosure would cause harm" (p 147).

Article 4

Paragraph (d)

(d) confidentiality as requested by the third party having supplied the document or the information, or as required by the legislation of the Member State.


124. Ms Preston, for the Commission, explained that Declaration 35[40] to the Amsterdam Treaty required the Regulation to give Member States the right to say whether they want a document to be handed over or not. "What we have done is that we have extended this right to all authors of incoming documents" (Q 273). Witnesses expressed concern that this exception might be abused. Professor Birkinshaw feared that "confidential" could become a routine designation. Under the domestic FOI Bill, for items to be exempt on grounds of confidentiality, confidentiality would have to amount to that which can be protected by the law of confidentiality, not simply that stamped 'confidential'. Professor Birkinshaw's view considered that test to be much more appropriate (p 141). CA also thought that the provision needed to be reformulated: "As currently drafted, this would have the effect of acting as a pre-emptive gagging clause on the release of critical information" (p 144). As regards the confidentiality of Member State documents Article 4 (d) would, Mr Harden, for the European Ombudsman, said, provide two possibilities; first if such confidentiality is required by the legislation of the Member State and, second, if it was not so required but was requested by the authorities of the Member State (Q 133). BEG said that Article 4 (d) "effectively confers on Member States the right once again to legislate themselves out of the protection of the Regulation, because it simply says "or as required by the legislation of the Member State". It does not impose any limits upon the discretion of the Member State as to how they legislate" (Q 115).

125. The Newspaper Society recognised that the position of third parties was a sensitive issue but the Society did not accept that access should be refused if the material was not of a confidential nature (p 152). The EEB considered that confidentiality should not automatically attach upon request. The institution should weigh a request for confidentiality against the public interest in disclosure (p 57). Mr Harden, for the European Ombudsman, contended that the Regulation should limit the right of third parties to submit documents in confidence to cases which fall under grounds set out in law, such as commercial confidentiality. Otherwise all the third party documents which a citizen was likely to want to read might be excluded in practice (p 80). Statewatch argued that Article 4(d) should be tightened up. If the third party or Member State that supplied a document wants to restrict access to the document, it should have to show that there was a specific exception that applied. It should not have carte blanche to insist that the document was not released. If, for example, Member States provided information on their food safety inspections to the Commission or the Commission somehow had information directly from private parties on food safety, the Member States or the private party concerned should not be able to insist without more that the information should remain secret. One of the specific interests set out in the rest of the Regulation would have to be shown to be applicable (Q 60).

126. Amos and Baxter pointed out that confidential information was invariably exempted from automatic disclosure under FOI legislation. But the definition of what constituted "confidential" information varied between countries.[41] In Amos and Baxter's view, it should not be solely up to the supplier of information to claim confidentiality (and thus prevent its subsequent disclosure). The recipient should decide whether to accept and hold the information in confidence. The EU should consider amending the exception to read simply as "the protection of information supplied, received and held in confidence" (p 138).

127. The Swedish Government was equally concerned about this exception. The "originator control" set out in the last paragraph of Article 4 was not acceptable; Declaration no 35 to the Amsterdam Treaty was not a good enough basis for extending the protection to other third parties. There was just as much public interest, in understanding decision making process, in having access to submissions made to the institutions as to documents produced by the institutions. Any restriction pertaining to incoming documents as such must be limited to protecting only the most sensitive types of information given in confidence (p 105). Ms Preston, for the Commission, expected the principle of "originator control" to be diluted but not totally removed. The Council had expressed concern about defence documents, such as those emanating from NATO. She thought that there might be a need for other specific cases (Q 273).


128. The EEB said that the Regulation should also include a separate provision to protect the identity of "whistleblowers" (p 57). The Bar European Group (BEG) referred to the Stanley Adams case.[42] Mr Adams had given information on his Swiss employer to the Commission. His identity was disclosed and Mr Green said: "he was then subject to some fairly draconian consequences under Swiss law. He sued the Community for damages and succeeded upon the basis that there is a general principle of confidentiality in Community law. I imagine that would have to have been built into the Regulation, come what may, as a derogation from the right of access to documents" (Q 114). ECAS referred to the case of Mr van Buitenen and commented that the Regulation should provide for protection to support the priority to combat fraud (p 146).

129. Before we comment on particular exceptions we should make two general points. First, though the Commission intended to be helpful in its structuring of Article 4 it has produced a long, non-exhaustive, list of exceptions. The overall impression that the list gives is that secrecy and not openness best serves the public interest. Second, there is a certain lack of coherence in the Article. For example paragraph (a) identifies interests to be protected while (b) lists types of document. We recognise, however, that this may be unavoidable.

130. Turning to paragraph (a) some exceptions are unsatisfactory because they are unclear (eg "stability of the Community's legal order") or excessively wide (eg "financial and economic interests"; and "relations between and/or with the Member States or Community or non-Community institutions", which would potentially exclude all discussion in the Council and its committees and working groups) or controversial (eg "infringement proceedings", where disappointed complainants may suspect a secretive political compromise between the Commission and the Member State concerned).[43] We acknowledge that in the light of what we have said above (in the context of Article 3 and the definition of "documents") the inclusion of a head to protect the interests of the decision making process is needed. However, the scope of "the effective functioning of the institutions" is clearly too wide. We were told that amendments have been made to the text in order to limit the scope of this exception. A narrower yet workable text must be found. Each of the other heads needs to be examined critically to ensure that it is not excessively wide.

131. The other exception that attracted substantial criticism was that for "requested" confidentiality in paragraph (d). While, as mentioned above, the removal of the authorship rule has been welcomed as a step forward from the Code, the potential effect of Article 4 (d) could be to eliminate this gain. We note the explanation given by the Commission by reference to Declaration 35 to the Amsterdam Treaty. We question whether this is compatible with the spirit of openness so frequently invoked by Member States and we see no reason for the Declaration to be extended to third parties. There should be an exception for confidentiality but this should be available only where it is objectively justifiable.

Article 5

Processing of initial applications

1. All applications for access to a document shall be made in writing in a sufficiently precise manner to enable the institution to identify the document. The institution concerned may ask the applicant for further details regarding the application.

 In the event of repetitive applications and/or applications relating to very large documents, the institution concerned shall confer with the applicant informally, with a view to finding a fair solution.

2. Within one month of registration of the application, the institution shall inform the applicant, in a written and reasoned reply, of the outcome of the application.

3. Where the institution gives a negative reply to the applicant, it shall inform him that, within one month of receiving the reply, he is entitled to make a confirmatory application asking the institution to reconsider its position, failing which he shall be deemed to have withdrawn the original application.

4. In exceptional cases, the one-month time-limit provided for in paragraph 2 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.

 Failure to reply within the prescribed time-limit shall be treated as a negative response.


132. As Lord Williamson of Horton explained, though the Commission was claiming some credit for some minor changes, the basic scheme for handling requests for documents remained unchanged. The applicant has to state clearly what he or she wants. Then there is one month for the institution to reply. If the application is refused there is one month in which the applicant can make a so-called confirmatory request and then there is a further month for the institution to reply (Q 183).

133. Requests must be made in writing. In Amos and Baxter's view, the Regulation should be amended to allow the request to be transmitted by electronic means (p 139). The Government saw potential for the application process itself becoming more transparent, in particular by modernising the process and making it more user friendly. For example, an institution might be obliged to acknowledge receipt of a request for access in the form of a standard response that could include an outline of the application process (Q 181).

134. Requests would also have to be made "in a sufficiently precise manner to enable the institution to identify the document". Both the Newspaper Society and Euro Citizen Action Service (ECAS) advocated that there should be a duty on the administration to give reasonable assistance to a person seeking a document (p 150). The Society also suggested the establishment of European metadata[44] (p 152).

135. The European Environmental Bureau (EEB) wanted the Regulation to be more precise as to what the applicant would receive. A response was not the same thing as supply of the document requested. The difference could be abused. The documents should be delivered within the time limits, not simply a positive decision (Q 76). Ms Preston, for the Commission, said that as a general rule the Commission sent out the document with the letter giving the reply. But she agreed that the Regulation might make clearer "that the reply equals a document" (Q 274).

136. We agree that applications made by electronic means should be expressly permitted. Decisions and documents if available in electronic form could, at the applicant's request, also be communicated to him or her by such means. Article 5 should also stipulate that, wherever possible, the documents requested are to be enclosed with the decision granting access. Further consideration should be given to the Minister's suggestion for an acknowledgement of receipt of the request. If not in the Regulation, there should be such a requirement in the institutions' Rules of Procedure. We can see this as having advantages in encouraging prompt compliance with other procedural rules and the timetables specified in the Regulation.


137. The Code of Conduct has a paragraph dealing with "repeat applications": "In consultation with the applicants, the institution concerned will find a fair solution to comply with repeat applications and/or those which relate to very large documents". There had been difficulties in determining what fell within this provision. Mr Peers, for Statewatch, who with Mr Bunyan has accounted for a substantial percentage of requests for documents relating to justice and home affairs, described his attempts to obtain copies of Council Working Group agendas. "Even though I was only applying once for those agendas, they said, "That is a repeat application because it is for a number of documents which are within the same field". That counts as a repeat application". That interpretation had, Statewatch said, been overturned by the Ombudsman.[45] But the Commission had not explained why it had changed the word 'repeat' to 'repetitive'. Statewatch said it was a "thinly disguised attempt to by-pass the European Ombudsman's ruling in the Statewatch complaint". In Mr Peers' view, it as "an attempt to prevent diligent researchers, such as myself and organisations such as Statewatch, from making more than a handful of applications a year" (pp 18, 30, 33, QQ 37, 38, 46,58). The Newspaper Society, on the other hand, accepted that the institutions should be able to refuse unreasonably large requests. But where a request was refused on the grounds of repetitiveness or the quantity of material requested there should be a requirement to indicate the cost or time involved in providing the information so that its decision could be reviewed. In the Society's view the Regulation should not simply leave the matter to informal discussions "with a view to finding a fair solution" (p 152).

138. Witnesses noted that while the institution must confer with the applicant if requests are repetitive or relate to very large documents with a view to finding a fair solution the Regulation failed to say what might be done if a fair solution could not be found or agreed (p 139). Though consultation with the applicant is possible under the current Code, in Mr Bunyan's experience any discussion had been rare in practice (Q 38).

139. Article 5 does not make clear that a distinction can be drawn between repeat requests or requests for large documents which are genuine and for legitimate reasons and applications which are vexatious or otherwise an abuse of the procedure. If the applicant is prepared to pay the costs, repetitive requests should not be automatically rejected. The Regulation might also make clear that the same time limits apply as regards attempts to find a fair solution. A failure to find a solution upon expiry of the time limit should be treated as a negative decision, thus enabling the applicant to move on to the next stage in the procedure (the confirmatory application). The Regulation should also expressly provide that the institutions are entitled to reject applications which, objectively judged, are abuses of the system.


140. Euro Citizen Action Service (ECAS) believed that the one month time limit for dealing with requests was a deterrent to use of the access to documents system (p 150). The European Environmental Bureau (EEB) said that one month was excessive in comparison with certain Member State regimes. The Regulation should specify a shorter time limit for response as well as a time limit for supply of the documents requested. The EEB also contended that the proposal was not in conformity with the Aarhus Convention[46] (Q 76). Statewatch thought that the period should be two weeks. They criticised the present delays, especially those caused by the summer and other holidays (p 15, Q 63). ECAS queried why the EU Institutions should not be capable of adopting the best practice, where access was immediate. Desk officers responsible for particular legislation or policies could normally locate such material easily (p 150). The Newspaper Society emphasised the importance of swift responses for the media. A mechanism might usefully be introduced whereby certain requests could be expedited (p 152).

141. The Swedish Government, commenting on the one month period specified in Articles 5 and 6, said that the Regulation should place an express duty on the institutions to handle applications rapidly. The long maximum time limits ought to be "extreme exceptions" (p 105). Amos and Baxter thought that in general the arrangements set out in Articles 5 and 6 were satisfactory but problems might arise over persistent delays by institutions in responding to information requests or confirmatory applications. They suggested that these might be overcome if institutions were required to publish performance statistics (p 139).

142. Ms Preston, for the Commission, did not believe the time periods could be reduced. The Commission's resources were limited. The one month and the extra month were maximum periods but necessary ones. Where documents could be provided faster they were. But where documents had to be dug out of the archives then it could take up to a month or longer (p 57).

143. The Regulation should adopt the approach taken in Article 4(2) of the Aarhus Convention. There should be an obligation on the institutions to process requests as quickly as possible. The Regulation should make clear that the one month period is to be regarded as the maximum time available, not the norm. We also support the idea that the institutions should be required to produce performance statistics which show the time taken in processing applications.


144. Under the proposed Regulation, a failure to reply is treated as a negative response. The European Environmental Bureau (EEB) said that if failure to reply were to be considered to be a positive response, the incentive on the institutions to meet the time limits would increase. Moreover, a failure to respond was equivalent to a failure to give a reason for the refusal. This, again, in EEB's view, conflicted with the Aarhus Convention.[47] A failure to give a reason for the refusal prejudiced the confirmatory application since the applicant could only guess what reason, if any, the institution had for not responding (Art 5 para 4).

145. It is unacceptable for an applicant to be required to make a confirmatory application by reason of the default of the institution concerned in failing to respond. We find it difficult to see what excuse there can be for a failure to respond at all within the initial one-month period, especially as there is provision for a further one month extension. The sanction for failure should be strengthened and there should be consistency of approach in Articles 5 and 6. In both cases, a refusal to reply at all within the time limit should have the same consequences. A consistent approach would remove any incentive to delay at the initial application stage.

Article 6

Processing of confirmatory applications; remedies

1. Where the applicant submits a confirmatory application, the institution shall reply to him in writing within one month of registration of the application. If the institution decides to maintain its refusal to grant access to the document requested, it shall state the grounds for its refusal and inform the applicant of the remedies open to him, namely court proceedings and a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively.

2. In exceptional cases, the time-limit provided for in paragraph 1 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.

 Failure to reply within the prescribed time-limit shall be treated as a positive decision.


146. Under the proposal a failure to reply to a confirmatory application is deemed an acceptance, not a refusal as at present under the Code of Conduct. Statewatch acknowledged that this was an improvement. Mr Peers welcomed the obligation to hand out a document if the institution did not reply to the confirmatory application in time (p 30, Q 46). Lord Williamson of Horton commented: "That is perfectly reasonable. If the Secretary General is so idle that he cannot send it out in one month he should be penalised to the extent of it being a positive response. I was very, very careful when I was there, I respected this religiously" (Q 195). Euro Citizen Action Service (ECAS) believed that Article 6 strengthened the citizens' chances of obtaining access, and put pressure on the Institutions to justify in time any negative response (p 150). Ms Preston, for the Commission, indicated that the presumption in favour of a positive decision would remain in the proposal (Q 277).

147. Mr Popham said that the World Wide Fund for Nature (WWF) regretted the absence from the procedure of an intermediate process between the present method of applying for documents and the remedies provided. Resort to the Community Courts was a "very heavy sledge hammer" where for example the request was for sight of only one letter (QQ 70, 117). The Bar European Group (BEG) agreed. Mr Green said: "there should be an intermediate decision maker who can force an institution to produce a document long before the courts have to intervene, because the relevance of documents is often transient. By the time you get to the Court, you probably have no remaining interest in the document at all" (QQ 72, 116).

148. The suggestion made by the WWF that some sort of intermediate dispute resolution procedure should be established merits examination. Its purpose would be to enable disputes over access to be resolved quickly at an early (pre confirmatory application) stage so that the purpose for which a document is being sought is not frustrated by the time taken up in exhausting the procedure in Articles 5 and 6 and in an appeal to the Court or the Ombudsman. It is possible that an independent person might be given the task of dealing, on a written arguments only basis and within an expedited time-frame, with cases of refusal. It would have to be clear that the intermediate procedure would be without prejudice to the right of recourse to the Ombudsman or the CFI. We anticipate that one objection might be that a new office would have to be created and this would involve resources. In the United Kingdom it is proposed that the Data Protection Commissioner should also be the Information Commissioner. In the Community context, we see no immediate reason why, similarly, the proposed European Data Protection Supervisor should not also be the Access to Documents Supervisor.

149. We note that the Commission's proposal to reverse the rule in the Code so that a failure to reply to a confirmatory application would be deemed a positive decision to grant access may not be accepted by the Council and the Parliament. A deemed refusal avoids the problem of a document which on any test would not, because, for example, of its strategic importance for the security of the Union and its Member States, be disclosed, falling by default into the public domain. But not every case of default may involve a consideration and balancing of conflicting public interests and there remains a need for a prompt and effective sanction for a failure to reply to a confirmatory application.

Article 7

Exercise of the right to access

1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy.

 The costs of his doing so may be charged to the applicant.

2. Documents shall be supplied in an existing language version, regard being had to the preference expressed by the applicant.

 An edited version of the requested document shall be provided if part of the document is covered by any of the exceptions provided for in Article 4.


150. The European Environmental Bureau (EEB) noted that the proposed Regulation did not say who would make the choice between consulting the document and receiving a copy. The Regulation should clarify that the choice should be the applicant's. The EEB said that the Regulation should make explicit provision that a document should be supplied in the form requested, if it was possible to do so. The EEB drew attention to the requirement of the Aarhus Convention that documents be supplied in the form requested, subject to certain conditions[48] (p 58).

151. The Regulation should give the applicant an express right to choose the means of access and, if he or she elects to receive a copy, to specify its form, for example by electronic means


152. A number of witnesses were critical of the lack of detail in the costs provision. As regards the current practice, Mr Bunyan, for Statewatch, said that the Council's charges were quite reasonable[49] and had recently been waived (Q 43). CA noted that unreasonable charges were a barrier to access. The Regulation should specify a limit to the costs that could be charged to applicants (p 144). In the view of the European Environmental Bureau (EEB), the Regulation should state that costs should not exceed a reasonable amount. Furthermore, a schedule of costs should be published. The schedule of costs should also inform the potential applicant under what circumstances costs may be waived, for example for a small number of copies or if the request is for documents for educational or non-commercial use (p 58). The Newspaper Society suggested that a differential charging scheme should be considered. Fees might be charged for commercial users but not individuals, non-profit organisations and the media. The Society proposed that, in line with the American approach, fees should be waived for requests that were in the public interest (p 152). Amos and Baxter observed that while the applicant "may" be charged for copies the Regulation apparently allowed no other charging (eg for information recovery or processing). This policy was laudable but dangerous. Individuals or pressure groups can make excessive demands, strain institutional resources, and undermine the service to others. They suggested that the Regulation should be amended to allow "reasonable costs to be recovered" (p 139). But the EEB thought that the Regulation should specify that inspection was free and that search time was not to be charged (p 58).

153. We accept that exercise of the right of access may be made conditional on the payment of a fee, the level of which may in turn be dependent on such factors as the manner in which access is given and the volume of the material requested. It is also important that, as under the Code, the institution should be allowed to waive fees in particular cases. Institutions should be able to measure and determine their costs accurately and should set fees in a transparent and accountable way. The point is well made that "unreasonable fees" act as a disincentive. We doubt whether the details need to be set out in the Regulation itself.


154. Mr Peers, for Statewatch, welcomed the provision which confirmed the case law of the Court of First Instance that documents would have to be released in part (Q 46). Professor Curtin explained that in the Hautala case the Court had held that the institutions were under an obligation to grant partial access to their documents. If there was confidential information contained in certain documents, then they had to blank out that information and grant access to the rest. She added that the Council had been very opposed to this development because it felt that it would amount to giving a right to information, as such, and not just simply to a document as it existed. Moreover it would involve a considerable amount of extra work. The Hautala case had been appealed by the Council to the Court of Justice. But the Commission, in putting forward the present draft, appeared to be taking a different view (QQ 9, 22). The Swedish Government supported the inclusion of a rule on partial access. But the present text needed to be clarified, in particular so as not to give the impression that deleting sensitive information did not amount to distorting documents (p 105). Ms Preston, for the Commission, described the difficulties which the Hautala decision was causing. "Briefings, for instance, are a case where, whereas previously they would have been excluded as something which was internal and rather sensitive, with the Hautala decision most briefings, at least in the Commission (at least when I do them), are 90 per cent factual with maybe just a sentence at the end saying "Watch out for Mr So-and-so because he can be difficult" (Q 253).

155. We welcome the principle of partial access being enshrined in the Regulation. This is a significant step forward from the existing regime.

Article 8

Reproduction for commercial purposes or other forms of economic exploitation

An applicant who has obtained a document may not reproduce it for commercial purposes or exploit it for any other economic purposes without the prior authorisation of the right-holder.


156. The existing rules prohibit the reproduction of documents for commercial purposes. In Statewatch's view, that ban did not apply to charities selling compilations of documents "and many other situations". The proposed ban on circulating a document for 'economic purposes' would be wider than the existing rules, and might arguably be used to restrict publication of documents by non-profit NGOs. Statewatch believed that institutional documents, once released, should be in the public domain except where they are clearly used for "commercial gain". The formulation "exploit it for any other economic purposes" would give unacceptable discretion to the institutions (pp 18, 33). The European Environmental Bureau (EEB) believed Article 8 to be unnecessarily broad and restrictive (p 58). Professor Curtin thought that Article 8 would forbid a newspaper from publishing information for any economic purpose and thus the media could not take advantage of the Regulation (Q 31). Mr Green, for the Bar European Group (BEG) said: "One asks oneself what is the purpose of allowing someone to have access to a document when you then take every step possible under Article 8 to suppress the use of the document … "any other economic purpose" presumably includes things like journalism, academic publications for which one is paid a miserly fee and preparing a legal case even" (Q 118). Ms Preston, for the Commission, accepted that the phrase "commercial purposes" might be clarified. What the Commission was concerned about was resale of the documents without authorisation. It was not intended to cover journalism (Q 278)

157. Article 8 as presently drafted is unclear as to its essential purpose which, as we understand it, is to prohibit reproduction and resale of documents for gain without authorisation. It should be made clear that the Article is not intended to fetter the media when drawing attention to and commenting on EU government and business or the use of the material for academic purposes.


Article 9

Information and registers

Each institution shall take the requisite measures to inform the public of the rights they enjoy as a result of this Regulation. Furthermore, to make it easier for citizens to exercise their rights arising from this Regulation, each institution shall provide access to a register of documents.


158. The Code of Conduct contains no obligation to keep a public register or index of documents held by the institution. The Council has, however, established one. The Commission's website includes an item called the President's Mail but as explained in paragraph 26 above it does not contain a list of documents.

159. Professor Birkinshaw thought that the reference to a register was welcome, although the provision was very vague. He noted that the UK legislation would not impose a duty to maintain a register or index of documents and commented that the Government had steadfastly denied the need for one in spite of the experience of their value in overseas regimes. If they were to exist in domestic arrangements, this would only be on a voluntary basis which, Professor Birkinshaw commented, too often produced inertia (p 140). Mr Vaz, however, said that the Government was strongly in favour of registers to facilitate the exercise of the right of access. It also saw a need to make people more aware of their rights (Q 181). The Swedish Government welcomed the duty to set up registers. But the numbers of registers should be limited. The Regulation should make clear that each institution should have a central register and that the register should contain information on all documents falling within the scope of the access regime. The Regulation should also prescribe what information should be included in the register (p 105).

160. Mr Harden, for the European Ombudsman, identified the absence of registers as one of the shortcomings of the current regime.[50] It presented a practical obstacle to the effective exercise of the right of access since, without a register, it may not be possible to know what documents to ask for. The proposal required each institution to provide "access to a register of documents". A large measure of discretion would be left to the institution to determine what is a register for the purposes of the Regulation. There was no definition of the term register, nor any indication of what it should contain. In particular, there was no obligation for each institution to maintain and publish a central register that included all incoming and outgoing documents. Mr Harden suggested that it should be made clear that the register must also include confidential documents, in a form that did not disclose confidential information (pp 77, 81, QQ 129, 132). Professor Curtin, referring to earlier work on this subject by the Meijers Committee in the Netherlands, emphasised the need for central responsibility within institutions and detailed binding measures on the organisation of registers (Q 27).

161. Other witnesses expressed similar concerns over the content and accessibility of registers. Statewatch drew attention to the importance of registers containing references to all documents held by the institutions - the granting of access was a separate issue governed by the use of the exceptions. This was a fundamental safeguard against abuse, corruption and undemocratic practices (p 18). The Newspaper Society took a similar line. Registers should include classified documents, with an indication that they were considered as confidential (p 152). Euro Citizen Action Service (ECAS) contended that all institutions, agencies and committees should have such a register on their websites. There should be guidance for applicants through registers with an indication of the origin of the document, its status (ie whether or not it is confidential) and what is the next stage in the decision-making process (p 150). The European Environmental Bureau (EEB) said that Article 9 should also require that access to the registers is free (p 59, Q 118).

162. Lord Williamson of Horton thought that in principle it was a good idea to have a register but, speaking as a former Secretary General, he foresaw substantial practical difficulties for the Commission. He doubted, moreover, whether the register would be used very much or would do an enormous amount of good in practice. Apart perhaps from some initial interest in testing the new system, he thought that the volume of requests for documents would stay at the current level. The potential volume of documents was huge, on top of which there was the language problem. "In the last resort I think we could work it. It is going to be a very heavy system. I think it is what the French call a bad good idea, that is it is a very good idea but in reality it is going to give rise to quite a lot of difficulties, operating responsibilities, operating requirements for staff and so on and so forth" (QQ 195-6). Ms Preston, for the Commission confirmed this. There were "hundreds of registers" in the Commission. Since March the Commission had been preparing a register of the main categories of internal documents asked for. She envisaged a decentralised system under the Regulation, spread through the Commission (QQ 281-6)).

163. Registers are an important, if not essential, feature of an access to documents regime. They provide a tangible means of providing information on documents of which applicants might otherwise not be aware. In our view, any register needs to be (a) compulsory (b) readily accessible and (c) workable and user-friendly. There must be clarity, both for applicants and officials, as to the documents to be included in the registers and the descriptive information to be applied to documents so that they are readily identifiable. Therefore some detail of regulation or independent supervision is required. These are matters on which we expect the Commission to consult interested parties.

164. In principle all "documents" should be listed on the register. Because of the application of legitimate public interest exceptions under Article 4, not all documents would be accessible. But we acknowledge that if, as we have recommended above, the present limitations in the definition in Article 3 are removed then potentially a vast number of documents would have to be included on the register. While there may be little difficulty in listing incoming and outgoing documents (including e-mail) we accept that there may be problems in determining exactly when an "internal" document comes into existence (the civil servant's preliminary scribbling or the first "official" version). We envisage, therefore, that, if only for such practical considerations, a separate definition of documents may have to be included in Article 9. In preparing this Commission should build upon the experience of those Member States, such as Sweden, which have operated public registers of documents for many years.


165. The institutions are required to inform the public of the "rights they enjoy" under the Regulation. Amos and Baxter commented that it would be interesting to see how positively they do this (p 139). In the view of the Swedish Government, any access regime needed to be supported by a number of measures in order to become effective. Public registers of documents formed one of the most important parts of such a "support system" and ought to be regulated in the context of Article 255 of the EC Treaty. Other relevant and important issues, which needed to be discussed but not necessarily included in the Regulation, included a duty to record information and the maintenance of a document retention/archives regime (p 105).

166. Statewatch praised the Council for establishing a central unit to handle applications for documents. The position as regards the Commission was less satisfactory. The applicant had to go to the particular Directorate General. There was no central point to receive applications or to chase up delays. A small unit of 8-10 persons would, in Mr Bunyan's view, suffice and would be " a small cost for an informed democracy" (Q 64).

167. Euro Citizen Action Service (ECAS) said that there should be more publicity for access to documents schemes (p 150). Lord Williamson of Horton said that there was a Citizen's Guide, which explained the position under the Code of Conduct and told the citizen where to write to and so on. But it needed bringing right up to date and to be available in all the offices of the Union (Q 195).

168. The new regime will need to be publicised. A new edition of the Citizen's Guide should be prepared and widely distributed.

Article 10


 Each institution shall adopt in its rules of procedure the

 provisions required to give effect to this Regulation. Those

 provisions shall take effect on ... [three months after the adoption

 of this Regulation].


169. Article 255(3) EC requires each institution to elaborate in its own Rules of Procedure specific provisions regarding access to documents. The Bar European Group (BEG) referred to recital 13 of the proposal which provides that the proposed Regulation cannot be applicable without specific provisions being laid down by the institutions and queried its compatibility with Article 255(3) EC. In BEG's view, Article 255(3) did not restrict the right of access provided for in Article 255(1) by stating that implementing internal provisions must be taken first. The proposed Regulation provided all the details required for the Treaty right to be fully and properly described. Given that, the so-called internal implementing measures might well simply reiterate what was in the proposed Regulation. Not only did this appear wasteful but it also gave control to the Community institutions as to when the Treaty rights would become applicable (p 49).

170. But the practical details of the new regime will have to be worked out in Rules of Procedure. The Commission also suggested that the implementing rules might be used to clarify a number of matters left uncertain in the text of the Regulation, such as the "specific rules" mentioned in Article 2 (2), definition of internal documents (Article 3), application of the exceptions in Article 4 (QQ 251, 253-4, 270). Amos and Baxter proposed that Model Rules of Procedure for institutions and associated guidance for officials be produced with the Regulation. Further, "to ease suspicion" the arrangements for incorporating the new regime into the Rules of Procedure of each of the institutions should be open to public consultation and scrutiny (pp 134, 139). Ms Preston, for the Commission, reacted: "In principle, why not? However, we have to produce the rules of procedure within three months of adoption of the Regulation. So the deadline would be very tight for a consultation procedure" (Q 251).

171. The Commission's evidence reveals the potential importance of the detailed implementation of the Regulation in the respective Rules of Procedure of the three institutions. We doubt, however whether the Rules are the proper place to resolve any remaining uncertainties in the text relating to such matters as the scope of any exclusion for "specific rules" or the scope and application of the exceptions in Article 4. In any event, the preparation of amendments to the Rules should itself be an open exercise and interested parties (and especially the Ombudsman) might be given the opportunity to comment. The timetable may be tight. But some thought must already have been given to the changes necessary. There may also be some matters, such as fees structure and the detailed form and contents of registers, on whose development the conclusion of the negotiations and final adoption of the Regulation is not dependent. The errors of judgement made in deciding not to conduct a proper public consultation prior to the publication of the draft Regulation should not be repeated.

21   Professor Curtin accepted, however, that the European Convention on Human Rights (in particular Article 10) itself probably did not give a positive right of access (Q 3). Ms Durand, Commission Legal Service, expressed similar doubts (Q 240). Back

22   Public Hearing on the draft Charter of Fundamental Right of the European Union, 2 February 2000. The Ombudsman called for the Charter to include the right to an open, accountable and service-minded administrationBack

23   Speech to European Parliament. See fn 22 above. Back

24   Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. Aarhus (Denmark), 25 June 1998. The Convention makes provision, first, for the public to have access to environmental information. It requires Parties to ensure that public authorities make environmental information available on request to members of the public (subject to some exceptions) and sets out basic requirements relating to the collection and dissemination of such information. Second, it provides for the public to participate in decisions on whether to permit particular activities. Third, it provides for rights of access to justice in environmental matters. It requires Parties to allow members of the public who consider that they should have had access to information or the opportunity to participate in decision-making, to seek remedies before courts or other judicial bodies. Parties must also ensure that members of the public have, within certain parameters, access to administrative or judicial procedures to challenge breaches of national environmental law. The Convention is a UN/ECE Convention that has been signed by the Community and all the EU Member States, as well as by other states. Back

25   Mr Bunyan described the complaints that Statewatch had and was bringing before the Ombudsman. Statewatch had preferred to have recourse to the Ombudsman rather than to Community Courts because of the time allowed to make an application (two years as opposed to two months) and the absence of risk as to costs (QQ 40-1, 54). Back

26   24 February 2000. Back

27   Wall Street Journal, 9 March 2000. Back

28   Discussion paper on public access to Commission documents produced by the Secretariat-General of the European Commission, 23 April 1999, SH.C 2/VJ/CD D (99) 83. The document was published on the Statewatch website at Back

29   The subject of our Report, Reforming EC Competition Procedures, 4th Report, 1999-2000. Back

30   Case T-106/99 Karl L.Meyer v. Commission. Order of 27 October 1999, at para 39. Back

31   Case T-92/98 Interporc Im- und Export GmbH v. Commission. Judgment of CFI of 7 December 1999. Back

32   Report on Openness in the European Union. Doc. A4-0476/98. Back

33   Case T-194/94: Carvel v. EC Council [1995] ECR II-2765, at paragraphs 64 and 65. Back

34   Article 4(4) of the Aarhus Convention provides: "A request for environmental information may be refused if the disclosure would adversely affect:

(a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

(b) International relations, national defence or public security;

(c) The course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;

(d) The confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed;

(e) Intellectual property rights;

(f) The confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law;

(g) The interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so and where that party does not consent to the release of the material; or

(h) The environment to which the information relates, such as the breeding sites of rare species.

The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment." Back

35   Case T- 194/94 Carvel and Guardian Newspapers v. Council [1995] ECR II-2765, at para 65. Back

36   Case T-14/98 Heidi Hautala v. Council Judgment of 19 July 1999, at para 85 (adopting the test laid down by Court of Justice in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651). Back

37   Wall Street Journal, 7 January 2000. Back

38   Article 10 (2) of the ECHR contains exceptions to the right to the freedom of communication. It prescribes the aims and pressing social needs which may legitimately be pursued and met by public authorities in restricting the right to impart or receive information and ideas. These legitimate aims and needs are the protection of the interests of national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, or the reputation or rights of others, information received in confidence, and the authority and independence of the judiciary. Article 8 (2) also recognises as a further legitimate aim the protection of the economic well-being of the country. Back

39   Case T-610/97 Carlsen and others v Council [1998] ECR II-485, and Case T-83/96 Van der Val v. Commission [1998] ECR II-545. Back

40   Declaration 35 provides: "The Conference agrees that the principles and conditions referred to in Article [255 (1)] of the Treaty establishing the European Community will allow a Member States to request the Commission or the Council not to communicate to third parties a document originating from that State without its prior agreement".  Back

41   They referred to the definition adopted by the USA courts: "commercial or financial matter is confidential for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained ". National Parks & Conservation Association v Morton, 498 F.2nd 770 (DC. Cir 1974). The two tests, which apply disjunctively, are known as the "impairment prong" and the "competitive harm prong". To successfully invoke the impairment prong, authorities usually argue that the information was provided voluntarily and that third parties would not provide such information in the future if it were subject to public disclosure. Most other countries define confidential information in a way that is consistent with the USA interpretation (para 29). Back

42   Case 145/83 Adams v Commission [1985] ECR 3539. Back

43   In its work on the implementation of environmental law, the Select Committee has called for more information to be given to complainants and for documents to be made available. See Community Environmental Law: Making It Work. 2nd Report 1997-98, at paras 91-97. Back

44   Ie data about data. "Metadata is a description or profile of a document or other information object. The description may contain data about the context, form or content of the document. In an electronic environment metadata is attached to, or form an integral part of, each record. Such metadata may denote a classificatory category to which the record belongs, or may identify or describe the record according to other attributes". Records Management - a guide to corporate record keeping: Kennedy and Schauder (2nd ed., at p.297). Back

45   Case 1053/25.11.96/Statewatch/UK/IJH v. Council. Back

46   Article 4(2) of the Convention provides: "The environmental information referred to in paragraph 1 above shall be made available as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it". Back

47   The EEB referred to Article 4(7) of the Convention: "A refusal of a request shall be in writing if the request was in writing or the applicant so requests. A refusal shall state the reasons for the refusal and give information on access to the review procedure provided for in accordance with Article 9. The refusal shall be made as soon as possible and at the latest within one month, unless the complexity of the information justifies an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it". Back

48   Article 4(1): "Each Party shall ensure that, subject to the following paragraphs of this Article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information:

(a) Without an interest having to be stated;

(b) In the form requested unless:

(i) It is reasonable for the public authority to make it available in another form, in which case reasons shall be given for making it available in that form; or

(ii) The information is already publicly available in another form." Back

49   See Decision of 27 February 1996, OJ C 74/3. The fees for obtain copies of Commission documents are specified in Commission Decision of 19 September amending Decision 94/90/EEC. Documents of 30 pages or less are supplied free of charge. If more than 30 pages there may be a charge of Euro 10 plus Euro 0.036 per page. Where the information is stored in a computer, audio-tape etc, the fee is fixed on an ad hoc basis, subject to the principle that the charge must be a reasonable one. Back

50   Mr Peers, for Statewatch, reported the Ombudsman's finding (Case 633/97/PD) that there was a basic principle of good administration that institutions should have a register of documents (Leg An, Q 42). Back

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