Public access to documents held by the Institutions

This Green Paper launches a public consultation on access to documents held by the Institutions. The Commission takes stock of the implementation of the legislation on this subject. It proposes that the current rules should be revised to include a more active dissemination policy for documents. They should incorporate developments in the area of the environment into the regime for obtaining access to documents and strike a fair balance between the rights of the public and the protection of public and private interests.

ACT

Commission Green Paper of 18 April 2007, "Public Access to Documents held by Institutions of the European Community - A review", [COM(2007) 185 final - Not published in the Official Journal]

SUMMARY

This Green Paper is intended to amend the Regulation on public access to European Parliament, Council and Commission documents (Regulation (EC) No 1049/2001). This Regulation has made available to the public a considerable number of previously unpublished documents. However, judgments from the Court of First Instance, complaints settled by the European Ombudsman, and other legal developments have made it necessary to review this Regulation.

The Commission launched a broad consultation on this subject which ran from mid-April to mid-July 2007. It will publish a report on the results of the consultation in September 2007 and submit its proposals for amending the Regulation on access to documents held by the Institutions in October of the same year.

In this Green Paper, the Commission first takes stock of the rules on access to the documents. It then suggests improvements to these rules and asks participants in the consultation to evaluate its proposals.

Taking stock of the rules on public access to documents

Experience confirms that the Regulation's functioning has been more than satisfactory, as demonstrated by the fact that the Commission grants two out of three requests for access. There has been a steady increase in the number of initial access requests submitted to it, while the number of confirmatory requests (i.e. applications asking the Commission to reconsider a refusal to grant access) remains stable. Appeals have been submitted to the Court of Justice, as have complaints to the European Ombudsman, but these account for only a very small proportion of the total number of requests handled.

Although the implementation is satisfactory, it is nonetheless necessary to re-examine the Regulation in order to clarify certain provisions, to incorporate the case-law of the Court of First Instance in this area, and lastly, to take account of the latest developments regarding access and transparency.

Firstly, certain points need to be clarified. For example, the right of access to documents is sometimes in opposition to the right to protection of personal data. For this reason, the relationship between public access and a privileged right of access to relevant documents which cannot be disclosed to the public must be clarified. Secondly, improvements could be made to the dissemination of information that can be made accessible to the public, for example, with regard to the scope of the registers, the number of documents directly accessible to the public and the user-friendliness of the electronic information systems.

Furthermore, the Commission would like to point out that the Court of First Instance has already clarified many of the Regulation's provisions, concerning its general characteristics, procedural issues or exceptions to access to documents. It would be wise for the Commission to include this case-law in new Community legislation.

Finally, other developments make it necessary to re-examine the regulation, such as:

The application of the Århus Convention to Community Institutions and bodies (Regulation (EC) No 1367/2006 ): this agreement applies to environmental information. It guarantees the public the right of access to environmental information held by the Community Institutions and bodies. These must also make environmental information available to the public in easily accessible electronic databases. The Commission points out that certain provisions of Regulation (EC) No 1049/2001 and Regulation (EC) No 1367/2006 partly overlap, such as their scope and their beneficiaries. Regulation (EC) No 1049/2001 lays down a general regime for access to documents while Regulation (EC) No 1367/2006 concerns only access to environmental information . Similarly, Regulation (EC) No 1049/2001 applies only to the Parliament, the Council, the Commission and the Community agencies, while Regulation (EC) No 1367/2006 applies to all of the Institutions and Community bodies. Lastly, certain exceptions to the right of access laid down in the two Regulations do not completely correspond. Although the two regimes are largely convergent, some differences could lead to differing interpretations and make it necessary to re-examine the Regulation;
The transparency of Council meetings: the Council recently amended its rules of procedure in order to make its decisions more transparent. Its public deliberations and debates are now published on the Internet in all the official EU languages, which goes beyond the scope of Regulation (EC) No 1049/2001.

Proposed improvements to rules on access to documents

In light of this, the Commission has concluded that the current rules need to be amended to:

improve direct access to documents;
better inform the public on the activities of the European Institutions;
clarify the legal framework;
strike the right balance between the public's right to know and the protection of legitimate public and private interests.

In order to fulfil these objectives, the Commission is launching a consultation on various proposed measures. It suggests, for example, improving the rules on access to documents by adopting a more active dissemination policy, by integrating the rules on access to environmental information into the general system of access to documents, and, lastly, by clarifying the provisions of the Regulation which are likely to create conflicts of interest.

The Commission proposes making the legislative process of the EU Institutions more transparent and more easily accessible to the general public. To achieve this, it suggests clarifying the concept of "legislative documents", which should in principle be directly accessible in full to the public. The stage of the procedure at which they should be published should also be specified and they should be made easier to access.

Subsequently, it asks participants in the consultation to evaluate several proposals, including:

More systematic dissemination to the public of documents held by the Institutions. The Institutions already publish large amounts of information on their web sites such as EUR-Lex, Prelex, the European Parliament 's Legislative Observatory, and the Parliament's, Commission's and Council's document registers, and the Register on comitology. However, the Commission queries whether the information provided through document registers and on the websites of the Institutions are sufficiently comprehensive and easy to access. It also wonders whether active dissemination of information should perhaps focus on certain specific fields.
Integrating the rules on access to environmental information into the general system of access to documents. As mentioned above, Regulation (EC) No 1049/2001 and the rules on access to environmental information diverge on several points and may give rise to different interpretations. The Commission therefore proposes to amend Regulation (EC) No 1049/2001 to incorporate the rules on access to environmental information. Such an amendment would maintain a single regime for access to documents held by the Parliament, the Council and the Commission, providing greater consistency and legal clarity for citizens. In order to put into place a single regime, the system of exceptions to the right of access would then have to be revised, for example, by adding exceptions intended to protect the environment.

And lastly, the Commission presents concrete solutions intended to strike the right balance between certain interests which sometimes come into conflict, such as:

Public access and the protection of personal data: In order to balance these two sometimes contradictory rights, the Commission proposes that, in the new Regulation, the Institutions define a series of criteria for the disclosure of personal data. These criteria would be based on two principles. Firstly, the disclosure of the data must be justified in the public interest. Secondly, it must not affect the person's privacy or integrity;
Public access and commercial or economic interests: There are specific rules on access to information obtained in the framework of investigations on state aid, anti-trust, merger, trade defence or anti-fraud cases, as well as in public procurement and grant award procedures. The Commission is of the opinion that the specific rules and the Regulation need to be made consistent. It therefore proposes that the new Regulation provide that no access can be granted to documents containing information known to a limited number of persons, the disclosure of which is liable to cause serious harm to legitimate interests of the person who has provided it or to third parties.
Public access and good administration: Certain requests for documents entail a heavy workload. In order to reconcile transparency with the principle of good administration, the Commission proposes that three parameters be taken into account: the amount of documentation requested, the definition of documents held by the Institutions, and lastly, the effect of the passing of time on the application of the exceptions on access to documents. The Commission therefore suggests that specific provisions should be laid down for handling requests which are clearly excessive or improper, in particular with regard to time frames. In the case of particularly voluminous or complex requests, the Institutions may only extend the time limit for a reply by 15 working days. Nor, on this basis, can they reject requests which are clearly intended to block a service's normal operations. The Commission also suggests that the concept of a "document held by the Institutions" be clarified and should cover information held in electronic databases that can be extracted using the existing search tools. Lastly, the Commission proposes that the events before and after which exceptions would or would not apply be specified.

See also