Access to Documents

The Amsterdam Treaty introduced Article 255,
which gives citizens a right of access to European Parliament,
Council and Commission documents. Under this article, in May
2001, the EU adopted a regulation on public access to European
Parliament, Council and Commission documents.

Background

 

The 1992 Maastricht Treaty contained a
(non-binding) declaration on access to documents. In
accordance with the objectives expressed at the European
Council meetings that followed, the Commission adopted a
decision on public access to Commission documents in
February, 1994. This implemented a joint code of conduct
between the Commission and Council and established the
general principle that public should have the widest
possible access to documents held by the two institutions,
subject to the private and public interests being
protected. The 1995 Amsterdam Treaty introduced a new
Article 255, then giving citizens an explicit right of
access to European Parliament, Council and Commission
documents.

In 2000, under pressure from NATO, the
High Representative for Common Foreign and Security Policy
(CFSP) and Secretary-General of the Council, Javier Solana,
prevailed upon the Council to unilaterally adopt new
security regulations regarding access to documents and to
introduce new, restrictive classifications for confidential
documents.

This so-called 'Solana decision' created
considerable controversy in EU circles and was labeled a
"summertime coup" by journalists and NGOs. Objections to
the action led to several legal challenges being launched
at the Court of the First Instance, including one by the
Parliament.

By end 2000, legislative proposal were
made to replace 'Solana decision'. The Swedish Presidency
was able to secure a compromise agreement for the adoption
of a regulation between the European Parliament, Council of
Ministers and the Commission after a gruelling set of
three-way negotiations.

Issues

The new regulation regarding public
access to European Parliament, Council and Commission
documents was formally adopted on 30 May 2001 and came
into effect on 3 December 2001. The regulation grants a
right of access to documents of the three institutions to
any Union citizen and to any natural or legal person
residing, or having its registered office, in a Member
State. The definition of a "document" is a broad one and
no category of document is excluded a priori from the
right of access, including classified documents.

Refusal to grant access must be based
on one of the exceptions provided for in the regulation
and must be justified on the grounds that disclosure of
the document would be harmful. A complaint against a
refusal can be made with the European Ombudsman or an
appeal can be brought before the Court of First
Instance.

The new regulation introduces a number
of innovations designed to increase transparency and
improve public access to the institutions' documents:

  • access is extended to documents originating with
    third parties (for example, the Member States, third
    countries, the other institutions, the public);
  • a document protected by an exception (other than
    the protection of public interest or of privacy) can
    still be released where serving the public interest is
    more important than protecting the document;
  • time limits for replies are reduced to 15 working
    days.

The openness of the institutions' work
has undergone much improvement since the adoption of the
regulation:

  • the EUR-Lex portal on the EUROPA server became
    available in June 2001 for access to the Official
    Journal;
  • the minutes of Commission meetings have been
    available on the Internet since January 2002;
  • a public register of Commission documents has been
    available on-line since June 2002;
  • the Parliament has adopted a number of internal
    measures and made available to the general public its
    official register since 2002;
  • the Council register, available on-line, contains
    references to documents produced from 1999 onwards;
    some documents can be displayed directly, while others
    must be request from the Council's document access
    service.

The draft text of the Constitution
includes a new article on the right of access to
documents (Articles III-301) which extends the obligation
to transparency to all institutions, agencies and bodies.
It further opens the legislative process to the public,
sating that "the European Parliament and the Council
shall not only meet in public but also ensure publication
of the relevant documents. Moreover, the inclusion of the
Charter on Fundamental Rights in the Constitution will
make its article 42 on right of access to documents
legally binding.

Positions

<strong>Michael Cashman,

(PES-UK), draftsman of an own-initiative report on the
implementation of the regulation on access to documents
(1049/2001/EC), acknowledges that progress has been made
as regards the number of accessible documents but
considers that suitable tools must be set up to ensure a
targeted response to requests on access to documents. He
criticised the European Convention for not applying the
principles set in the regulation, qualifying this
behaviour as deplorable. He makes the following
suggestions for improvement of the regulation on access
to documents: 

  • European Council documents should also be covered
    by the regulation;
  • documents under comitology proceedings should be
    directly accessible;
  • the Council should permit the identification of the
    positions of the various national de legations at the
    time of the decision-making process;
  • the Council should provide access to legal
    opinions;
  • the Council should stop using the classification
    "limited", "restricted" documents and should make these
    documents directly accessible;
  • one interinstitutional register should be set
    up;
  • the Commission should set up one single electronic
    register;
  • reasons for refusal to access documents should be
    precise.

Tony Venables from European citizens action
service (ECAS)

, said: "When we look at the reports of the Institutions
on the first year of operation of the regulation on
access to documents, it is difficult to see any decisive
improvement in the extent of transarency and access to
confidential documents. Certainly more information is
publicly available in the first place, but the rate of
refusals has also increased which is a sign that the
Institutions are cautiously hiding behind the exceptions
rather than applying the public interest test in favour
of disclosure".

London-based NGO, 
Statewatch

, regularly challenges the public access to EU documents
and has lodged eight successful complaints in recent
years with the European Ombudsman against the Council
over access to documents. Statewatch argues that while
much more EU information is now available, especially
from the EU Council, thousands of documents do not appear
on the required registers. It notes that NATO continues
to pressure the EU to comply with NATO secrecy. It also
warns that the areas of law enforcement and immigration
are particularly susceptible to increased secrecy in an
official climate dominated by counter-terrorism.

Further Reading

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