PART 4: OPINION, SUMMARY OF RECOMMENDATIONS
AND CONCLUSION
The importance of access to documents in the Union
order
172. There would seem to be little room for argument
as to the political importance of the right of access to documents
at Union level. Article 1 of the Treaty on European Union (the
Maastricht Treaty) identifies the constitutional significance
of openness in the Union. The European Council has called on the
Council and Commission on a number of occasions to give effect
to that principle, in particular by giving citizens the right
of access to documents. The rationale behind the recognition of
the importance of public access was most clearly stated in Declaration
17 of the Maastricht Treaty, which emphasised that "transparency
of the decision-making process strengthens the democratic nature
of the institutions and the public's confidence in the administration".
That is developed in recital 2 of the draft Regulation, which
provides:
"Openness enables citizens to participate more
closely in the decision-making process and guarantees that the
administration enjoys greater legitimacy and is more effective
and more accountable vis-à-vis the citizen in a democratic
system."
The point is developed further in recital 7.[51]
The wider context of fundamental rights
173. The Amsterdam Treaty has entrenched the concept
of fundamental rights as the basic building block of the European
Union. Article 6 (1) declares that the Union "is founded
on the principles of liberty, democracy, respect for human rights
and fundamental freedoms, and the rule of law, principles which
are common to the Member States." In that context, as our
work on the draft EU Charter of Fundamental Rights emphasised,
the European Convention for the Protection of Human Rights and
Fundamental Freedoms (the ECHR), has a special role to play. Its
potential significance for the proposed Regulation on access to
documents should not be overlooked.
174. The ECHR provides relevant legal criteria against
which to evaluate the draft Regulation. Article 10 of the ECHR
guarantees the right to freedom of expression. This right includes
the right to receive and impart information and ideas through
any medium of communication, without unnecessary interference
by public authority and regardless of frontiers. It is not confined
to citizens but protects the rights of everyone within the jurisdiction
of the State concerned. Article 10 does not as such guarantee
a general right of access to information. However, Article 8 guarantees
personal rights of access to information in particular circumstances,
for example, access to confidential records needed to enable the
individual to establish his identity as part of his private life,
and to information about health risks from illegal toxic industrial
emissions.
A general principle of Community law
175. It may be going too far to say that the right
of public access to documents is a general principle of Community
law. The Court of Justice has noted that "the domestic legislation
of most Member States now enshrines in a general manner the public's
right of access to documents held by public authorities as a constitutional
or legislative principle".[52]
The Court of First Instance has spoken of "the general principle"
that the public have access to Council and Commission documents.[53]
The Court of Justice itself has not gone so far, though it has
described political and legislative developments at Union level
as conforming to a "trend, which discloses a progressive
affirmation of individuals' rights of access to documents held
by public authorities".[54]
176. Such statements, we suggest, have now to be
read in the context of Article 1 of the Treaty on European Union
(as amended by the Treaty of Amsterdam): "This Treaty marks
a new stage in the process of creating an ever closer union among
the peoples of Europe, in which decisions are taken as openly
as possible…". This clearly demonstrates the fundamental
nature of the principle of transparency and openness in the constitutional
order of the Union. The potential recognition, in turn, of the
right of access to documents as a general principle of Community
law has conditioned our approach to the draft Regulation. The
"general principles and limits" that might, pursuant
to Article 255(2) EC, be placed on access to EU information under
the Regulation should also take account of the principles of legal
certainty and proportionality. Above all, the Regulation should
recognise explicitly the concept of a fair balance between competing
or conflicting interests: on the one hand, the individual's right
to the widest possible access to documents and, on the other,
the public or private interests which may be harmed by disclosure.
Where the right of access is limited to protect such interests,
the extent of that limitation should be clearly delineated so
as to ensure that the limitation goes no further than is necessary
to meet pressing needs.
Summary of detailed recommendations
177. The following is a summary of the Recommendations
made in Part 3 of the Report.
The principle of openness
The purpose of the draft Regulation is "to widen
access to documents as far as possible, in line with the principle
of openness". Simple consolidation of the current Code of
Practice is not enough. Improvements are needed (para 43).
Consultation
The Commission's failure to consult prior to the
adoption of the draft Regulation was a missed opportunity and
has done little to demonstrate a commitment to openness. The Commission
should learn from this experience. The negotiation of the draft
Regulation and its implementation, including amendment of each
institution's Rules of Procedure, should be conducted openly with
meaningful consultation of interested parties (para 46).
Relationship with national law
Member States are already bound by a "duty of
loyal co-operation" under Article 10 of the EC Treaty. We
see no need for recital 12 and recommend its deletion. As under
the present Code, some modus vivendi will be necessary
to prevent leakage by national administrations of documents that
would undermine the EU system. This does not have to be determined
in the Regulation but should be left to be developed by the Community
Courts (para 53).
Article 1 - General principle of access and beneficiaries
The present wording gives citizens "the right
to the widest possible access" to documents "without
having to cite reasons for their interest". We doubt whether
anything more positive or purposive needs to be said. The strength
of Article 1 has, however, to be measured against other Articles,
such as Articles 2, 3 and 4 (para 56).
Article 1, while fully respecting the wording of
the Treaty (in Article 255), only confers rights of access on
citizens and residents of the EU. This limitation appears to be
discriminatory and seemingly neglects others outside the Union
who have legitimate interests in, and may be affected by, EU activities.
The practical significance of the limitation on access may be
minimal - applicants do not have to give reasons when applying
for a document. But it should not be necessary to resort to fictions
in order to obtain access. We see no reason in principle why the
Regulation should not match the Code and give rights to all. We
recommend the use of Article 308 EC to "top up" Article
255 (para 60).
Article 2 - Scope of the draft Regulation
The removal of the "authorship" rule (so
that applicants no longer have to apply to the author of a document
for its disclosure) is a step forward. The extent of the benefit
for applicants will be dependent on the extent of the exceptions,
especially that for confidentiality, in Article 4 (para 62).
We accept that the essential purpose of access to
documents is satisfied if documents are already freely (ie
generally) available, for example, by reason of their publication
in the Official Journal (para 64). There may be a case
for retaining prior document identification references in the
final published version (para 65).
The "specific rules" clause in the final
sentence of Article 2 (2) may operate as an unchecked, and potentially
uncheckable, blanket exception from the Regulation (para 71).
Its purpose and scope needs to be clarified. Where two regimes
(the Regulation and "specific rules") are applicable,
the citizen should have the benefit of both and the freedom to
elect which procedural route to follow in the particular circumstances.
The Regulation should make clear that it establishes a common
minimum standard of access to all EU documents. It should include
a "standstill" clause to ensure that access under other
more favourable regimes cannot be reduced (para 72).
Article 3 - Definitions
"Documents" should be given a wide meaning
to ensure that it is not limited to pieces of paper but includes
other mediums for recording and storing information, including
e-mail. We oppose blanket exclusions for particular classes of
documents (para 77). The definition of "documents"
proposed in Article 3 would exclude far too much (para 85).
Preparatory papers, documents including opinions or advice, and
e-mails should not automatically escape the disclosure rules (paras
85 and 88). We accept that some definition or classification
of documents might be necessary for determining what to list on
the register under Article 9 (para 77).
Notwithstanding that Article 255 EC only gives a
right of access to European Parliament, Council and Commission
documents, we consider that the principle of openness and the
rights of access should apply to all EU institutions and bodies.
We recommend widening the scope of the Regulation so as to include
the other institutions and bodies by adding Article 308 EC to
the legal base (para 94).
Article 4 - Exceptions
We recommend that all exceptions should be discretionary.
The Regulation should specify that the institution concerned may
refuse access to documents whose disclosure would be likely
to be harmful (para 101). In exercising its discretion,
the institution should be expressly required to undertake a balancing
exercise. The principle of proportionality requires that any exceptions
to the right 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 (para 102).
The list of exceptions appears to go further than
the Code of Conduct. Some exceptions are potentially very wide.
This is a matter of fundamental concern. The importance of public
access for good government and healthy democratic processes should
be a paramount consideration when assessing the scope of the exceptions
in Article 4. A convincing justification for restricting the exercise
of the right of public access must be shown (para 108).
The Regulation should be measured against the standards set by
the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) when defining and limiting the legitimate
aims and pressing social needs which may be pursued by public
authorities in restricting freedom of information provides helpful
guidance. In the absence of cogent and convincing justification,
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 10(2) of the ECHR (para 109).
The overall impression given by the long list of
exceptions in Article 4 is that secrecy and not openness best
serves the public interest, even if this was not the Commission's
intention. Article 4 lacks coherence (para 129). Each of
the heads of exception needs to be examined critically. As regards
the public interest exceptions in paragraph (a), some are unsatisfactory
because they are unclear or excessively wide or controversial
(para 130). The exception for "requested" confidentiality
in paragraph (d) could eliminate any gain from the removal of
the authorship rule (by Article 2). The Commission considers that
its hands have been tied by Declaration 35 to the Amsterdam Treaty.
We consider the Declaration to be contrary to the spirit of openness
so frequently invoked by Member States and we see no reason for
it to be extended to third parties. We accept the need for an
exception for confidentiality but this should be available only
where it is objectively justifiable (para 131).
Article 5 - Processing of initial applications
The Regulation should expressly permit applications
by electronic means. Decisions (and documents if available in
electronic form) could, at the applicant's request, also be communicated
by such means. The documents requested should, wherever possible,
be enclosed with the decision granting access. A requirement to
acknowledge receipt of the request should be considered further
(para 136). As regards "repetitive applications",
if the applicant is prepared to pay the costs, then the requests
should not be automatically rejected. The institutions should
be entitled to reject applications which, objectively judged,
are an abuse of the system (para 139). The Regulation should
require the institutions to process requests as quickly as possible.
As an incentive to do so, there should be an obligation on the
institutions to produce performance statistics indicating the
time taken to process applications (para 143).
An applicant should not be required to make a confirmatory
application by reason of the default of the institution concerned
in failing to respond to the application within the specified
time limits. The sanction for such failure may need to be strengthened.
There should be a consistent approach in Articles 5 and 6. In
both cases, a failure to reply at all within the set time limits
would have the same consequences. Such an approach would remove
any incentive to delay at the initial application stage (para
145).
Article 6 - Confirmatory applications and remedies
There is much force in the suggestion that some sort
of intermediate dispute resolution procedure to resolve disputes
over access at an early stage should be established. This would
be in addition to the applicant's right to appeal to the Court
or to the Ombudsman. One possibility meriting further examination
is to designate the proposed European Data Protection Supervisor
as the Access to Documents Supervisor (para 148) We see
difficulties in deeming a failure to reply to a confirmatory application
a positive decision to grant access but there remains a need for
a prompt and effective sanction to ensure full compliance with
the procedures and time limits (para 149).
Article 7 - Exercising the right of access
The applicant should have 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 (para
151). 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. But the institution should be
allowed to waive fees in particular cases. It is doubtful whether
the details need to be set out in the Regulation itself (para
153). The express reference to providing partial access to
documents is to be welcomed (para 155).
Article 8 - Reproduction of documents
There is a need to clarify the essential purpose
of Article 8, ie to prohibit reproduction and resale of
documents for gain without authorisation. It should be made clear
that the provision is not intended to fetter the media or the
use of material for academic purposes (para 157).
Article 9 - Information and registers
Registers need to be (a) compulsory (b) readily accessible
and (c) workable and user-friendly. The Commission should consult
interested parties on the detail (para 163) All "documents"
should, in principle, be listed on the register even though some
may not be accessible. For practical reasons, a specific definition
of "documents" for the purpose of inclusion on the register
may have to be added to Article 9 (para 164). The new access
regime will need to be publicised. A new edition of the Citizen's
Guide should be prepared and widely distributed (para 168).
Article 10 - Rules of Procedure
The detailed implementation of the Regulation in
the respective Rules of Procedure of the three institutions will
be important. The preparation of amendments to the Rules should
itself be an open exercise and, notwithstanding the tight timetable,
interested parties might be given the opportunity to comment.
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 (para 171).
Conclusion
178. We recognise that the Regulation would bring
some benefits. The removal of the authorship rule, the acknowledgement
of the right to partial access to documents, and the duty to maintain
registers are all positive steps forward. The shift towards a
Treaty-based rights approach to access to documents is also noteworthy.
But limiting that right to EU citizens and residents and imposing
duties on only three institutions, though consistent with Article
255 EC, is in principle undesirable and may give rise to artificial
distinctions, if not unfair discrimination, in practice. The opportunity
should be taken, in so far as the Treaty permits, to extend the
scope of the Regulation. Similarly, though Article 255 contemplates
limits on the exercise of the right of access, any exclusion or
exception must be consistent with the nature of the right, justifiable
and explicable in practical terms and, not least, manifestly proportionate.
179. As can be seen from the detailed commentary
made above there are a number of areas where the Regulation is
far from satisfactory. Some of the comments we have made, for
example on the definition of documents (Article 3) and the exceptions
(Article 4) indicate our belief that there is a need for radical
amendment if the objective of increased openness is to be achieved.
Above all, the Regulation should recognise explicitly the concept
of a fair balance between competing or conflicting interests:
on the one hand, the individual's right to the widest possible
access to documents and, on the other, the public or private interests
which may be harmed by disclosure.
Recommendation
180. The Committee considers that the proposal for
a Regulation of the European Parliament and of the Council regarding
public access to European Parliament, Council and Commission documents
raises important questions to which the attention of the House
should be drawn and makes this Report to the House for debate.
51 Recital 7 provides: "In order to bring about
greater openness in the work of the institutions and in line with
current national legislation in most of the Member States, access
to documents should be extended to include all documents held
by the European Parliament, the Council and the Commission". Back
52
Case C-58/94 Kingdom of the Netherlands v. Council [1996]
ECR I-2169, at para 34. Back
53
In the context of Council Decision 93/73, Case T-14/98
Heidi Hautala v. Council Judgment of 19 July 1999,
at para 67. In the context of Commission Decision 94/90,
Case T-309/97 The Bavarian Lager Company Ltd v Commission
Judgment of 14 October 1999, at para 38. Back
54
Case C-58/94 Kingdom of the Netherlands v. Council [1996]
ECR I-2169, at para 36. Back
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