Annexes to COM(2007)185 - Green Paper - Public access to documents held by institutions of the EC - A review - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2007)185 - Green Paper - Public access to documents held by institutions of the EC - A review. |
|---|---|
| document | COM(2007)185  |
| date | April 18, 2007 |
2.3.4. The relation between the Regulation and specific rules on confidentiality
In two judgments the Court of First Instance has ruled that the secrecy of the proceedings of selection boards, set out in Article 6 of Annex III to the Staff Regulations, is to be considered as a lex specialis derogating from the general rules on access to documents[22]. So far, this reasoning has not been extended to other areas, where specific rules on confidentiality exist. Furthermore, the secrecy of proceedings of a body does not mean that the documents established or considered by this body are covered by the same secrecy. However, there is a need for clarification of the relationship between the general regime for public access to documents and specific rules set out by the Community legislator in order to ensure the operational effectiveness of certain information gathering powers which are essential to the proceedings at issue.
2.3.5. Transparency and the obligation of professional secrecy
The principle of transparency established by Article 255 of the EC Treaty is balanced by the obligation of professional secrecy laid down in Article 287, which is explicitly mentioned in various acts of secondary legislation. It is of particular importance in competition policy, where the Commission holds information supplied by or obtained from undertakings, but also in trade defence cases[23] and in public procurement. Article 28 of Regulation (EC) No 1/2003 stipulates that information collected through inspections and investigations or received further to a request for information must be used only for the purpose for which it was acquired and that no information of the kind covered by the obligation of professional secrecy should be disclosed. Whilst neither Article 287 EC Treaty nor Article 28 of Regulation (EC) No 1/2003 explicitly indicates what type of information is covered by this obligation, the Court of First Instance has already clarified the concept of ‘business secrets’, stating that this concerns information of which not only disclosure to the public but also mere transmission to a person other than the one who provided the information may seriously harm the latter’s interests[24]. However, the obligation of professional secrecy may prevent disclosure to the public of information which does not require the special protection afforded to business secrets. These issues might merit further clarification.
3. FURTHER DEVELOPMENTS
3.1. Application of the Århus Convention to Community institutions and bodies
On 6 September 2006, Parliament and the Council adopted Regulation (EC) No 1367/2006 on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies[25]. The Regulation will apply from 28 June 2007.
This new Regulation covers various aspects of citizens' involvement in environmental policy:
- access to information on request
- active dissemination of information
- consultation on plans and programmes
- the right to request an administrative review of a decision or of a failure to decide.
In the context of this Paper, only the provisions regarding access to information on request must be considered.
Regulation (EC) No 1049/2001 lays down a general regime for access to documents. Due to the legal base being Article 255 EC Treaty, Regulation (EC) No 1049/2001 applies only to Parliament, the Council and the Commission and, by extension, to the Community Agencies. On the other hand, the provisions of Regulation (EC) No 1367/2006 regarding access to environmental information apply to all Community institutions and bodies. There will be a certain degree of overlap between Regulation (EC) No 1049/2001, the new Regulation (EC) No 1367/2006 and voluntary rules on access adopted by other institutions and bodies. It should also be noted that the exceptions to the right of access laid down in both Regulations do not completely coincide.
As regards the scope and beneficiaries, the situation may be represented as follows:
Scope and beneficiaries |
Legal framework | Institutions and bodies covered | EU citizens and residents | Any natural or legal person |
Regulations (EC) No 1049/2001 + (EC) No 1367/2006 | Parliament Council Commission Agencies | Any document |
Voluntary rules + Regulation (EC) No 1367/2006 | Court of Auditors European Central Bank European Investment Bank European Economic and Social Committee Committee of the Regions European Ombudsman | Any document | Only environmental information |
Regulation (EC) No 1367/2006 | European Data Protection Supervisor Court of Justice (except when acting in a judicial capacity) | Only environmental information |
3.2. Transparency of Council meetings
The European Council, at its meeting on 15 and 16 June 2006, underlined the importance of enabling citizens to get first-hand insight into EU activities, notably through further increasing transparency. On 15 September 2006, the Council amended its rules of procedure in order to implement this new policy. Under the new measures, the Council's public deliberations and debates will be broadcast on the Internet in all the official EU languages. Openness of Council meetings goes beyond the scope of Article 255 EC Treaty and Regulation (EC) No 1049/2001. However, the fact that meetings are held in public will have an impact on disclosure of documents being considered at such meetings.
PART TWO : OPTIONS FOR IMPROVING THE ACCESS RULES |
4. OVERALL ASSESSMENT
Taking into account the experience gained with the implementation of Regulation (EC) No 1049/2001, the case law of the Court of First Instance and of the Court of Justice and also the recent developments with regard to transparency in the European institutions, it is appropriate to consider amendments to the regime for public access to documents, with a view to:
- improving access to registers and direct access to documents;
- better informing the public at large on the activities of the European institutions;
- clarifying the legal framework;
- striking the right balance between the public’s right to know and the protection of legitimate public and private interests.
5. A MORE ACTIVE DISSEMINATION POLICY
5.1. Transparency in the legislative process
The main purpose of laws on freedom of information is to enable citizens to participate more closely in democratic decision-making. Therefore, the first priority with regard to the implementation of Regulation (EC) No 1049/2001 has been to make the legislative process of the EU institutions more transparent and more easily accessible to the general public. The public registers of the three institutions contain mainly references to documents established and exchanged between institutions in the framework of EU lawmaking. Many of these documents are accessible with their full text. This practice is consistent with Article 12 of Regulation (EC) No 1049/2001, which stipulates that the institutions “shall, as far as possible, make documents directly accessible to the public”, in particular “legislative documents”.
Since the definition of "legislative documents" in Article 12 of the Regulation lacks precision, the Regulation could be amended in order to define which types of documents are part of the legislative process and should in principle be directly accessible in full and at which stage of the procedure. It is already foreseen that the EUR-LEX site will cover more preparatory legislative documents.
On the other hand, the information which is available is not always easily accessible to citizens. Parliament, the Council and the Commission are currently looking at ways of providing easier access to legislative documents.
5.2. Active dissemination in other areas
The institutions disseminate large amounts of information on their websites. Press releases, which explain complex or technical issues in plain language, are valuable sources of information for the general public.
This dissemination is largely voluntary. However, the new Regulation applying the Århus Convention to the EC institutions and bodies contains provisions regarding active dissemination of environmental information[26].
The institutions could develop a more systematic policy of making documents directly accessible to the public in the most user-friendly way. This would require additional human and financial resources as regards the management of the workflow and of databases and websites. On the other hand, as the experience of the Council suggests, it could reduce the number of access requests or, at least, make the handling of requests less burdensome.
The main websites operated by the institutions are:
EUR-LEX (EU Law):http://eur-lex.europa.eu/en/index.htm
Legislation in preparation:http://ec.europa.eu/prelex/apcnet.cfm?CL=en
EP legislative Observatory:http://www.europarl.europa.eu/oeil/
Register of European Parliament documents:http://www.europarl.europa.eu/registre/recherche/RechercheSimplifiee.cfm?langue=EN
Register of Council documents:http://www.consilium.europa.eu/cms3_applications/showPage.asp?lang=en&id=549&mode=g&name=
Register of Commission documents:http://ec.europa.eu/transparency/regdoc/registre.cfm?CL=en&testjs=1
Register on comitology:http://ec.europa.eu/transparency/regcomitology/registre.cfm?CL=en
Question 1: Would you qualify the information provided through registers and on the websites of the institutions as |
A | comprehensive and easy to access? |
B | comprehensive but difficult to find? |
C | easy to access but insufficient as regards their coverage? |
D | insufficient and difficult to access? |
Other comments regarding registers and websites: |
Question 2: Should more emphasis be put on promoting active dissemination of information, possibly focussed on specific areas of particular interest? |
YES | NO | No opinion |
Explanation and comments: |
6. INTEGRATING THE RULES ON ACCESS TO ENVIRONMENTAL INFORMATION INTO THE GENERAL SYSTEM OF ACCESS TO DOCUMENTS
As mentioned in Section 3.1, there are some differences between the Regulation and the Århus Convention. As regards access to information, the Convention contains specific provisions on active dissemination of environmental information, which go beyond the obligation to provide information on demand. The co-existence of Regulation (EC) No 1049/2001 and Regulation (EC) No 1367/2006 results in two largely convergent and coherent regimes, even if some differences remain which could lead to divergent interpretations.
These differences could be addressed, either by operating a specific regime governing the right of access to environmental information or by amending the provisions of Regulation (EC) No 1049/2001 in order to clarify their full compatibility with those of Regulation (EC) No 1367/2006, thus maintaining a single regime for access to environmental and other information held by Parliament, the Council and the Commission. The second option would create more legal clarity for the citizen, although different regimes will exist for other Community institutions and bodies.
In order to set up a single access regime, the system of exceptions to the right of access laid down in Regulation (EC) No 1049/2001 should be revised. The following points should be considered.
- The public interest in disclosure and, in particular, the fact that the information requested relates to emissions into the environment should be taken into account when applying the exceptions.
- Where documents are covered by the exception aimed at protecting the financial, monetary or economic policy of the Community or of a Member State [Article 4(1) a, fourth indent of Regulation(EC) No 1049/2001], the environmental information contained in such documents would nevertheless be disclosed.
- A specific exception would be added in order to protect the environment to which the requested information relates (such as breeding places of rare species).
- Since Member States are bound by the Århus Convention and by the Directive on access to environmental information[27], it would be contrary to these provisions if they were to oppose disclosure of documents which they would have to disclose under national law. On the other hand, the Regulation must take into account Declaration No 35 to the Treaty of Amsterdam. Member States opposing disclosure by an institution of documents originating from them could be asked to give reasons for their position, based on exceptions, either under Regulation (EC) No 1049/2001 or on the basis of their national legislation.
Question 3: Would a single set of rules for access to documents, including environmental information provide more clarity for citizens? |
YES | NO | No opinion |
Explanation and comments: |
7. BALANCING INTERESTS
7.1. Public access and the protection of personal data
It is advisable to await case law regarding the collision of these two rights[28] before outlining practical rules on the handling of requests for access to personal data. However, within the existing legal framework, the institutions could define criteria for the disclosure of personal data, based on the following principles:
- there is a public interest in disclosure of the personal data; this could be the case where persons are public office holders acting in an official capacity and the information to be disclosed relates only to the exercise of their official duties, unless there are specific reasons to protect their identity (e.g. investigators);
- it is obvious that the disclosure does not affect the person’s privacy or integrity.
Question 4: How should the exception laid down in Article 4(1)(b) of Regulation (EC) No 1049/2001 be clarified in order to ensure adequate protection of personal data? |
A | Granting partial access to documents, expunged for personal data, is a satisfactory way of balancing transparency and the protection of personal data. |
B | The disclosure of personal data should always be assessed under the criteria set by the Regulation on the protection of individuals with regard to the processing of personal data (Regulation (EC) No 45/2001). |
C | There should be criteria for the disclosure of certain types of personal data in Regulation (EC) No 1049/2001, where the lawfulness of disclosure does not have to be assessed on a case-by-case basis under Regulation (EC) No 45/2001. |
Explanation and comments: |
7.2. Public access and commercial or economic interests
The EC Treaty strikes a balance between the principle of transparency established by Article 255 and the obligation of professional secrecy laid down in Article 287, which concerns in particular information about undertakings, their business relations or cost components.
This balance between transparency and professional secrecy is especially relevant with regard to the Commission, which holds information provided by or obtained from private parties in the framework of investigations in State aid, anti-trust, merger, trade defence or anti-fraud cases, as well as in public procurement and grant award procedures. Appropriate protection of this information is crucial to the cooperation of the parties in these procedures, and hence the effectiveness of implementation of the Community policies concerned. Therefore the Community legislators have determined specific access rules in relation to such information. These rules need to be applied simultaneously with the Regulation and coherence between the two should be ensured.
In a judgment of 30 May 2006[29], the Court of First Instance established criteria for defining the kind of information falling within the ambit of the obligation of professional secrecy. In accordance with this case law, the Regulation could 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. These criteria deserve to be clarified in operational terms, bearing in mind the potential burden on the legal or natural person providing the information, whose views will need to be obtained prior to any disclosure, as well as the inherent risk that the potential serious harm to legitimate interests will be more difficult to assess after a certain period of time.
On the other hand, under Regulation (EC) No 1367/2006 applying the provisions of the Århus Convention, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment and the exception concerns the protection of commercial interests.
A particular case is the protection of intellectual property, where international agreements apply.
Question 5: How should the exception laid down in Article 4(2), 1st indent of Regulation (EC) No 1049/2001 be clarified in order to ensure adequate protection of commercial and economic interests of third parties? |
A | The current system where the protection of commercial interests is balanced against the public interest in disclosure strikes the right balance. |
B | More weight should be given to the interest in disclosure. |
C | The current rules do not sufficiently protect commercial and economic interests. |
Explanation and comments: |
7.3. Public access and good administration
Experience has shown that the handling of requests can be burdensome. The purpose of Regulation (EC) No 1049/2001 being to disclose information in the public interest, the institutions have to balance the interest in disclosure against the workload entailed by the handling of a request. A situation where important resources are devoted to a limited number of voluminous, complex or otherwise burdensome requests would not be in the public interest. Therefore, it might be useful to define criteria with regard to the proportionality of access requests. In order to reconcile transparency with the principle of good administration, the following parameters could be taken into account:
- the volume of the requested documentation
- the definition of documents held by the institutions
- the effect of time frames on the relevance of exceptions.
7.3.1. Excessive requests
Unlike many national regimes governing access to documents or information, Regulation (EC) No 1049/2001 has no provisions regarding excessive or improper requests. In practice, a concrete examination of the documents of an entire file for the purpose of public access proves excessively burdensome when compared to the usefulness of the documents or parts of them that can be disclosed.
When handling a particularly voluminous or complex request, the institutions may only extend the time limit for a reply by 15 working days or may confer informally with the applicant in order to find a fair solution[30]. The latter provision could be clarified in order to enable the institutions to ask applicants either to specify or narrow down their request or to accept a realistic time frame for handling it.
Furthermore, requests which are clearly intended to block a service in its normal operations could be considered as improper and be rejected on that basis. Such considerations might be particularly pertinent as concerns the effectiveness of the exercise of the Commission's enforcement powers.
Question 6: In the light of experiences made so far, is there a case for specific provisions for handling requests, which are clearly excessive or improper, in particular with regard to time frames ? |
YES | NO | No opinion |
Explanation and comments: |
7.3.2. Concept of “document held by the institution”
The current definition of a "document held by the institution" results from the combination of the definition of "document" in Article 3(a) of the Regulation and the scope as defined in Article 2(3)[31]. Merging both definitions could clarify the concept of a "document held by the institution".
Two aspects need to be clarified in particular:
- the relationship between the definition of a "document held by the institution" and the document management rules of that institution, more specifically the rules on registration;
- the status of information held in databases; since an increasing amount of information is held in electronic databases, the Regulation could define how the content of databases fits into the concept of "a document"; databases could be considered as an electronic library; specific and limited sets of information that can be extracted from a database through a normal operating process using the existing search tools would be considered as "documents" within the meaning of the Regulation.
Question 7: With regard to the content of databases, should the concept of "document" cover sets of information that can be extracted using the existing search tools? |
YES | NO | No opinion |
Explanation and comments: |
7.3.3. Accessibility of documents and the passing of time
There is no indication in the Regulation of the effect of passing of time on the application of the exceptions. A clear indication of the effect of passing of time, particularly in relation to certain exceptions (e.g. inspections, investigations and audits, court proceedings, pending decisions on non-legislative areas) would make it possible to reconcile the interests of transparency with those of good administration by avoiding placing an unnecessary burden on the institutions. The Regulation could indicate events:
- before which specific categories of documents are manifestly covered by exceptions, making operational under the Regulation the means to ensure consistency with principles which the Community legislator has set down in specific access rules elsewhere, always subject to the test of overriding public interest under the Regulation;
- after which documents become public.
Question 8: Should the Regulation indicate events before and after which exceptions would or would not apply? |
YES | NO | No opinion |
Explanation and comments: |
8. FINAL COMMENTS
Please indicate any other comments you would like to make with regard to the rules on public access to documents held by the European Parliament, the Council and the Commission |
ANNEX
Statistics on the access requests handled by the institutions
| |2002 |2003 |2004 |2005 |2006 (2) | | Initial requests |Parliament |637 (1) |165 |186 |298 | (3) | | |Council |2394 |2830 |2160 |2100 |2224 | | |Commission |991 |1523 |2600 |3173 |6712 | | Confirmatory requests |Parliament |1 |1 |1 |10 | (3) | | |Council |43 |45 |35 |51 |40 | | |Commission |96 |143 |162 |167 |112 | | Notes:
(1) This figure for initial requests handled by Parliament in 2002 includes requests for access to published documents.
(2) Figures for 2006 are estimates.
(3) Figures concerning the European Parliament are not available yet.
[1] OJ L 145, 31.5.2001, p. 43.
[2] These reports are available on the following websites:Parliament: http://www.europarl.europa.eu/register/pdf/FINAL_605496_1_EN.pdfCouncil: http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=305&lang=EN&mode=gCommission: http://ec.europa.eu/transparency/access_documents/index_en.htm
[3] COM(2004) 45: Report from the Commission on the implementation of the principles in Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.
[4] Convention on Access to Information, public Participation in Decision-making and Access to Justice in environmental Matters, done at Århus, Denmark, on 25 June 1998.Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Århus Convention to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13).
[5] Minutes of the Commission's meeting No 1721 of 9 November 2005, item 6; see also documents SEC(2005) 1300 and SEC(2005) 1301.
[6] P6_A(2006) 052.
[7] The number of confirmatory requests submitted to Parliament has risen from 1 to 10 between 2004 and 2005.
[8] 13% of requests handled by the Commission concern competition policy and relate mostly to state aid cases.
[9] Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001).
[10] “Public Access to Documents and Data Protection”, Background Paper Series, July 2005, No 1.
[11] Case T-194/04, The Bavarian Lager Company Ltd. v Commission ; Case T-170/03, BAT v Commission ; Case T-161/04, Valero Jordana v Commission .
[12] Cases T-121/05 and T-166/05, Borax Europe Ltd. v Commission .
[13] Judgment of the Court of First Instance of 26 April 2005, joined cases T-110/03, T-150/03 and T-405/03, J.M. Sisón v Council , confirmed by judgment of the Court of Justice of 1 February 2007, case C-266/05 P; Order of the Court of First Instance of 15 June 2005, case T-98/04, Società imballaggi metallici Salerno Srl (SIMSA) v Commission .
[14] Judgment of the Court of First Instance of 6 July 2006, joined cases T-391/03 and T-70/04, Franchet and Byk v Commission , at paragraph 82.
[15] Same judgment, at paragraphs 136-139.
[16] Judgment of the Court of First Instance of 13 April 2005, case T-2/03, Verein für Konsumenteninformation v Commission .
[17] idem
[18] Judgment of 23 November 2004, case T-84/03, Maurizio Turco v Council .
[19] Case T-191/99, David Petrie a.o. v Commission .
[20] Joined cases T-391/03 and T-70/04, Franchet and Byk v Commission .
[21] Judgment of the Court of First Instance of 30 November 2004, case T-168/02, Internationaler Tierschutz-Fonds GmbH v Commission ; see also judgments of the Court of First Instance in cases T-76/02, Mara Messina v Commission and T-87/03, Scippacercola v Commission .
[22] Judgments of 5 April 2005 in case T-376/03, Hendrickx v Council and of 14 July 2005 in case T-371/03, Le Voci v Council .
[23] See Article 19 of Regulation (EC) No 384/96, Article 29 of Regulation (EC) No 2026/97 and Article 9 of Regulation (EC) No 3285/94.
[24] Case T-353/94, Postbank v Commission , [1996] ECR II-921, paragraph 87.
[25] OJ L 264, 25.9.2006, p. 13.
[26] Regulation (EC) No 1367/2006, Article 4.
[27] Directive 2003/4/EC.
[28] See pending cases mentioned in footnotes 11 and 12.
[29] Case T-198/03, Bank Austria Creditanstalt AG v Commission, in particular paragraph 71.
[30] Article 6(3) of the Regulation.
[31] Article 2(3) : This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union. Article 3(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) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility .