The European Parliament adopted by 394 votes to 197 with 35 abstentions, a legislative resolution on the proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast).

Parliament’s position adopted in first reading amended the Commission proposal as follows:

Purpose: the regulation must, amongst other things, aim to promote transparent and good administrative practice in order to improve access to documents, and in particular the overall goals of greater transparency, accountability, and democracy.

Beneficiaries: any natural or legal person or any association of legal or natural persons shall have a right of access to documents of the institutions, bodies, offices and agencies, subject to the principles, conditions and limits defined in the Regulation.

Scope: the Regulation shall apply to all documents held by a Union institution, body, office and agency, that is to say documents drawn up or received by it and in its possession, in all areas of activity of the Union. This Regulation shall apply to the Court of Justice of the European Union, the European Central Bank and the European Investment Bank, only in the course of the performance of their administrative tasks.

Definition of document : Members specify that ‘document’ shall mean any data content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter falling within the sphere of responsibility of a Union institution, body, office or agency.

The content of a document shall be available without discrimination on the grounds of visual impairment, working language or operating system platform. Institutions shall provide for actual access by an applicant to the content of documents without technical discrimination.

Access to documents : Members consider that full, direct and timely public access should be granted in principle to documents relating to legislative acts as well as delegated and implementing acts of general scope, as the legislative procedure has to be open and visible as much as possible.

· Preparatory legislative documents and all related information on the different stages of the interinstitutional procedure, such as Council working group documents, names and positions of Member States delegations acting as Members of the Council and first-reading trilogue documents, should in principle be made immediately and directly accessible to the public on the Internet.

· Documents relating to non-legislative procedures, such as binding measures or measures dealing with internal organisation, administrative or budgetary acts, or of a political nature (such as conclusions, recommendations or resolutions) should be easily and as far as possible directly accessible in compliance with the principle of good administration.

· For each category of document, the institution, body, office or agency responsible should make accessible to citizens the workflow of the internal procedures to be followed, which organisational units would be in charge, as well their remit, the deadlines set and the office to be contacted. The institutions, bodies, offices and agencies should duly take into account the recommendations of the European Ombudsman.

· Documents relating to the European Union budget, its implementation and beneficiaries of Union funds and grants shall be public and accessible to citizens.

Classified documents : Parliament proposes new rules for the procedure to be followed for the classification (EU top secret, EU secret, EU confidential and EU restricted), and declassification of documents. An institution shall classify a document where its disclosure would undermine the protection of the essential interests of the Union or of one or more of the Member States, notably in public security, defence and military matters.

Exceptions : all documents of the institutions should be accessible to the public. Exceptions to this principle should be made to protect certain public and private interests, but such exceptions should be governed by a transparent system of rules and procedures, and the overall goal should be the implementation of citizens' fundamental right of access.

Access to documents drawn up by an institution for internal use or received by an institution relating to a matter where the decision has not yet been taken by that institution shall be refused only if their disclosure would, due to their content and the objective circumstances of the situation, manifestly and seriously undermine the decision-making process.

Overriding public interest : the exceptions listed in the text do not apply when an overriding public interest justifies disclosure of the document. When balancing the public interest in disclosure, an overriding public interest in disclosure shall be deemed to exist where the document requested relates to the protection of fundamental rights and the rule of law, sound management of public funds, or the right to live in a healthy environment, including emissions into the environment.

Personal data shall not be disclosed if such disclosure would harm the privacy or the integrity of the person concerned. Personal data shall nevertheless be disclosed if an overriding public interest requires disclosure.

Documents originating from Member States : Member States should not have a veto right regarding documents originating from them as the final decision lies with the Institutions.

Where an application concerns a document originating from a Member State, other than documents transmitted in the framework of procedures leading to a legislative act or a delegated or implementing act of general application, the authorities of that Member State shall be consulted where there is any doubt as to whether the document is covered by one of the exceptions

Privileged access : an institution, body, office or agency may grant privileged access to documents for the purpose of research. If privileged access is granted, the information shall only be released subject to appropriate restrictions regarding its use. The idea is to give primarily academics an opportunity to have access to information which would otherwise be inaccessible.

Information Officer : each general administrative unit within each institution, body, office and agency shall appoint an Information Officer who shall be responsible for ensuring compliance with this Regulation and good administrative practice within that administrative unit. The Information Officer shall determine which information it is expedient to give the public and shall assess whether the services within his or her general administrative unit follow good practice.

Principle of good and open administration : in the transitional period before the adoption of the rules as envisaged by Article 298 TFEU and based on the requirements of Article 41 of the Charter, the institutions, bodies, offices and agencies shall adopt and publish general guidelines on the scope of the obligations of confidentiality and professional secrecy, the obligations arising from sound and transparent administration and the protection of personal data in accordance with Regulation (EC) No 45/2001.

The institutions, bodies, offices and agencies shall inform citizens, in a fair and transparent way, about their organisational chart by indicating the remit of their internal units, the internal workflow and indicative deadlines of the procedures falling within their remit, and the services to which citizens may refer to obtain support, information or administrative redress.

Report: 2 years at the latest after entry into force of the Regulation, the Commission shall publish a report on the implementation of this Regulation and shall make recommendations, including, if appropriate, proposals for the revision of this Regulation.

T7-0580/2011

Debate in Parliament

The Committee on Civil Liberties, Justice and Home Affairs adopted the report drafted by Michael CASHMAN (S&D, UK) on the proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast).

The committee recommends that the European Parliament’s position adopted at first reading under the ordinary legislative procedure should be to amend the Commission proposal.

Beneficiaries : any natural or legal person or any association of legal or natural persons shall have a right of access to documents of the institutions, bodies, offices and agencies, subject to the principles, conditions and limits defined in this Regulation.

Scope : this Regulation shall apply to all documents held by a Union institution, body, office and agency, that is to say documents drawn up or received by it and in its possession, in all areas of activity of the Union. This Regulation shall apply to the Court of Justice of the European Union, the European Central Bank and the European Investment Bank, only in the course of the performance of their administrative tasks.

Access to documents : Members consider that full, direct and timely public access should be granted in principle to documents relating to legislative acts as well as delegated and implementing acts of general scope, as the legislative procedure has to be open and visible as much as possible.

Preparatory legislative documents and all related information on the different stages of the interinstitutional procedure, such as Council working group documents, names and positions of Member States delegations acting as Members of the Council and first-reading trilogue documents, should in principle be made immediately and directly accessible to the public on the Internet. Documents relating to non-legislative procedures , such as binding measures or measures dealing with internal organisation, administrative or budgetary acts, or of a political nature (such as conclusions, recommendations or resolutions) should be easily and as far as possible directly accessible in compliance with the principle of good administration. For each category of document , the institution, body, office or agency responsible should make accessible to citizens the workflow of the internal procedures to be followed, which organisational units would be in charge, as well their remit, the deadlines set and the office to be contacted. The institutions, bodies, offices and agencies should duly take into account the recommendations of the European Ombudsman.

Exceptions : all documents of the institutions should be accessible to the public. Exceptions to this principle should be made to protect certain public and private interests, but such exceptions should be governed by a transparent system of rules and procedures, and the overall goal should be the implementation of citizens' fundamental right of access.

Access to documents drawn up by an institution for internal use or received by an institution relating to a matter where the decision has not yet been taken by that institution shall be refused only if their disclosure would, due to their content and the objective circumstances of the situation, manifestly and seriously undermine the decision-making process.

Member States should not have a veto right regarding documents originating from them as the final decision lies with the Institutions.

Confirmatory application : a confirmatory application shall be handled promptly. Within a maximum of 15 working days (as opposed to 30) from registration of such an application, the institution, body, office or agency shall either grant access to the document requested and provide within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution, body, office or agency shall inform the applicant of the remedies open to him or her.

Privileged access : an institution, body, office or agency may grant privileged access to documents for the purpose of research. If privileged access is granted, the information shall only be released subject to appropriate restrictions regarding its use. The idea is to give primarily academics an opportunity to have access to information which would otherwise be inaccessible, but that they must accept appropriate restrictions as to how the information can be used.

Better law-making practices , drafting models and techniques shared by the institutions, bodies, offices and agencies should be agreed by the European Parliament, the Council and the Commission in accordance with Article 295 TFEU and with this Regulation and published in the Official Journal of the European Union in order to improve the principle of transparency by design and that of legal clarity of EU documents.

Classified documents : this Regulation should provide a framework procedure for the registration, classification, access and archiving of classified documents.

Register : in order to improve openness and transparency in the legislative process, an interinstitutional register of lobbyists and other interested parties should be agreed by the institutions, bodies, offices and agencies.

Charter of Fundamental Rights : due to the fact that this Regulation directly implements Article 15 TFEU as well as Article 42 of the Charter, the defined principles and limits for access to documents should prevail over any rules, measures or practices adopted under a different legal basis by an institution, body, office or agency and introducing additional or stricter exceptions than the ones provided in this Regulation.

A7-0426/2011

PE473.900

PE439.989

PE441.376

PE441.265

The vote on amendments to the Commission proposal had been held on 11 March 2009 but the final vote on the legislative resolution had been postponed, at the rapporteur's request, under Rule 53(2) of the Rules of Procedure.

The rapporteur again requested a postponement of the vote at the sitting of 5 May 2009, saying that the decision on this important dossier should be referred to the next parliamentary term. The report was therefore referred back to committee under Rule 168(2) of the Rules of Procedure.

Results of vote in Parliament

The European Parliament adopted by 439 votes to 200, with 57 abstentions. under the first reading of the codecision procedure, amendments to the proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast).

However, at the request of the rapporteur (Michael CASHMAN, PES, UK), the vote on the draft legislative resolution was postponed and the matter was referred back to the Civil Liberties Committee. The rapporteur requested the President to ask the current and subsequent Council Presidencies to open a formal dialogue with Parliament.

The main amendments to the proposal were as follows:

Purpose: the institutions covered by the legislation will include the European Parliament, Council and Commission as well as of all the Agencies and bodies created by those institutions. Members add that the purpose is to promote transparent as well as good administrative practice in the institutions in order to improve access to their documents

Scope: Parliament added separate clauses for scope and beneficiaries. These had previously been merged under the Commission proposal. The Regulation will 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 EU. Documents shall be made accessible to the public either in electronic form, in the OJ, or in an official institution's register, or following a written application. The documents drawn up or received in the course of a legislative procedure shall be made directly accessible. The Regulation shall be without prejudice to enhanced rights of public access to documents held by the institutions which might follow from instruments of international law or acts of the institutions implementing them or by the Member States' legislation.

Beneficiaries : Members added that beneficiaries are any association of legal or natural persons as well as any natural or legal person. This Regulation shall not apply to documents covered by Article 4 of the Statute for Members of the European Parliament. In order to ensure that the principle of institutional transparency is fully applied, free public access to documents concerning infringement mechanisms and proceedings should be guaranteed.

Definitions : Parliament broadened the definition of “document” from that proposed by the Commission. It also inserted definitions for “classified document”, “legislative documents”, non-legislative documents”, and “administrative document”, “archive” and “historical archive”. A detailed list of all the categories of the acts covered by these definitions will be published in the OJ and on the Internet sites of the institutions. The institutions shall also agree and publish their common criteria for archiving.

Classified documents : Parliament inserted a new article on classified documents, stating that an institution shall classify a document where its disclosure would undermine the protection of the essential interests of the EU or of one or more of its Member States. Information will be classified as follows: “EU top secret”, “EU secret”, “EU confidential” and “EU restricted.” Guidelines on definitions of these terms are inserted, and the new article describes responsibility for classification, etc. Documents relating to legislative procedures shall not be classified; implementing measures shall be classified before their adoption insofar as the classification is necessary and aimed at preventing an adverse effect on the measure itself. International agreements dealing with the sharing of confidential information concluded on behalf of the EU or of the Community cannot give any right to a third country or international organisation to prevent the European Parliament from having access to confidential information.

The European Parliament shall have access to classified documents through a special oversight committee composed of members appointed by its Conference of Presidents. These Members shall comply with a specific clearance procedure and solemnly swear not to reveal in any way the content of the information accessed.

The Article on treatment on sensitive documents is deleted.

General exceptions to the right of access : Parliament modified this article, differentiating between protection of public and private interests. It also excluded from the exceptions: legal advice in connection with procedures leading to a legislative act or a non-legislative act of general application; and the objectivity and impartiality of public procurement procedures until a decision has been taken. The exceptions apply unless there is an overriding public interest in disclosure. The amended provisions give guidelines on the interpretation of public interest, and add that the definition of an overriding public interest in disclosure shall take due account of: the protection of the political activity and independence of Members of the European Parliament. Documents the disclosure of which would pose a risk to environmental protection values, such as the breeding sites of rare species, shall only be disclosed in conformity with Regulation (EC) No 1367/2006 on the Aarhus Convention. Personal data shall not be disclosed if such disclosure would harm the privacy or the integrity of the person concerned. Such harm shall not be deemed to be caused under certain specificed circumstances.

Consultation of third parties : Parliament stated that third-party documents shall be disclosed by the institutions without consulting the originator if it is clear that none of the exceptions in the Regulation are applicable. A third party shall be consulted if that party has requested, when handing in the document, that it be treated in a specific way, with a view to assessing whether an exception provided for in this Regulation is applicable. Documents provided to the institutions for the purpose of influencing policy-making should be made public.

Where an application concerns a document originating from a Member State which has not been transmitted by that Member State in its capacity as a member of the Council, or which does not concern information submitted to the Commission concerning the implementation of EC policies and legislation, the authorities of that Member State shall be consulted.

Principle of good administration : a new provision is inserted, and states that the institutions shall on the basis of the code of good administrative behaviour publish general guidelines on the scope of the obligations of confidentiality and professional secrecy set out in Article 287 of the EC Treaty, the obligations arising from sound and transparent administration and the protection of personal data in accordance with Regulation (EC) 45/2001. These guidelines shall also define the sanctions applicable in the event of failure to comply with the Regulation in accordance with the Staff Regulations and in the institutions' internal rules

Legislative transparency : a further new article details the principles of legislative transparency and states, inter alia, that documents relating to their legislative programmes, preliminary civil society consultations, impact assessments and any other preparatory documents linked to a legislative procedure shall be accessible on a user-friendly inter-institutional site and published in a special series of the Official Journal.

Administrative transparency practice in the institutions : this clause is substantially amended and states, inter alia, that in order to ensure that the principles of transparency and good administration are effectively applied, the institutions concerned shall agree on common implementing rules and procedures for the presentation, classification, declassification, registration and dissemination of documents. The institutions shall establish an interinstitutional Article 255 committee to exchange best practice, identify access and usability barriers and unpublished data sources, address possible conflicts, promote interoperability, re-use and merger of registers, standardise document coding through a European standards organisation, create a single EU portal to ensure access to all EU documents and discuss future developments on public access to documents. In addition, a new provision on financial transparency provides that information relating to the EU budget, its implementation and beneficiaries of EU funds and grants shall be public to citizens.

Direct access to documents: the institutions shall establish a common interface for their registers of documents, and ensure a single point of access for direct access to documents drawn up or received in the course of procedures for the adoption of legislative acts or non-legislative acts of general application.

Processing of initial applications : this article is amended to state that in the event of a refusal, where the applicant calls into question whether any actual harm will be caused to the relevant interests and/or argues that there is an overriding interest in disclosure, the applicant may request the European Ombudsman to give an independent and objective view on the question of harm and/or overriding public interest. While waiting for the delivery of the European Ombudsman' opinion, the time-limit for making a decision (15 working days) shall be suspended for a maximum of 30 working days.

Information officer : a new clause is inserted providing that each directorate-general within each institution shall appoint an Information Officer who shall be responsible for ensuring compliance with the provisions of the Regulation and good administrative practice within that directorate-general.

Report: at the latest by 6 months after entry into force of the Regulation, the Commission shall publish a report and make recommendations including proposals for the revision of the Regulation which are necessitated by changes in the current situation and an action programme of measures to be taken by the institutions.

T6-0114/2009

Debate in Parliament

A6-0077/2009

A6-0077/2009

OPINION OF THE EUROPEAN DATA PROTECTION SUPERVISOR on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents .

The aforementioned proposal was sent by the Commission to the EDPS for consultation and was received by the EDPS on 15 May 2008. The aim of the proposal is to make a number of substantive changes to Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

The attention of the EDPS has in particular been triggered by the fact that the proposal contains a provision dealing with the delicate relation between access to documents and the rights to privacy and to the protection of personal data, the proposed Article 4(5). This opinion supports the reasons behind replacing the present Article 4(1)(b) by a new provision to some extent, but does not support the provision itself.

This provision is criticised for the following reasons:

the EDPS is not convinced that this is the appropriate moment for change, while an appeal is pending before the Court of Justice; the proposal does not provide the appropriate solution. It consists of a general rule that: (i) does not reflect the judgement of the Court of First Instance in Bavarian Lager; (ii) does not do justice to the need for a right balance between the fundamental rights at stake; (iii) is not viable since it refers to EC legislation on data protection that does not provide a clear answer when a decision on public access must be made; it consists of a specific rule that is in principle well defined, but with a scope that is far too limited.

The EDPS proposes an exception to public access to personal data. In this regard, personal data shall not be disclosed, if such disclosure would harm the privacy or the integrity of the person concerned. The EDPS also outlines situations in which such harm does not arise. Nevertheless, personal data shall be disclosed if an overriding public interest requires disclosure. In those cases, the institution or body shall have to specify the public interest. It shall give reasons why in the specific case the public interest outweighs the interests of the person concerned. Moreover, where an institution or body refuses access to a document, it shall consider whether partial access to this document is possible.

The opinion identifies several other points where clarifications are needed of the public access regulation. These clarifications can be given by introducing recitals or possibly legislative provisions on the following subjects:

the concept of a document so as to ensure the widest possible application of the public access regulation; the interpretation of Article 8(b) of Regulation (EC) No 45/2001 in the context of public access so as to ensure that the applicant for public access does not need to prove the necessity of disclosure; the relation between the right of access to public documents and the right of access to own personal data under Regulation (EC) No 45/2001 so as to ensure that the right of access to public documents is without prejudice to the right of access to own personal data; the obligation of an institution to examine on its own initiative whether that person is entitled to access under Regulation (EC) No 45/2001, when a person requests access to data concerning him or her under the public access regulation; the further use of personal data contained in public documents, in order to ensure that this further use is subject to the applicable rules on the protection of personal data.

52009XX0107(02)
OJ C 002 07.01.2009, p. 0007

PURPOSE: to amend provisions relating to access to documents.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: the right of access to European Parliament, Council and Commission documents is enshrined in Article 255 of the Treaty, as amended by the Treaty of Amsterdam. Provisions for this right have been set out in Regulation (EC) No 1049/2001. In 2004, following an in-depth review of the Regulation, the Commission concluded that it was working well and as result considered it inappropriate to amend the Regulation in the short term. A number of recent initiatives have, however, required the Commission to reassess its position. Firstly, the “European Transparency Initiative” (a review of the Regulation), secondly the adoption of a Parliamentary Resolution in April 2006 which asked the Commission to come forward with proposals for amending the Regulation; and thirdly the adoption of the Arhus Convention concerning access to documents containing environmental information and its interaction with Regulation (EC) No 1049.

CONTENT: the purpose of this proposal is to amend Regulation (EC) No 1049/2001 on the basis of the review process. In short, the Commission proposes the following:

Purpose and beneficiaries: the wording in Article 1 (a) has been slightly modified to clarify the purpose of the Regulation and to grant public access to documents. The right of access will be granted to any natural or legal person, regardless of nationality or State of residence – this approach is consistent with the Arhus Regulation.

Scope and definitions: the proposal specifies that the Regulation will apply to all documents held by an institution concerning a matter relating to the policies, activities and decisions falling within its sphere of responsibility. In addition a new paragraph has been added clarifying that documents submitted to Courts by parties other than the institutions do not fall within the scope of the Regulation (the recall, the TEU excludes the Court of Justice from the right of access to documents). Access to documents relating to the exercise of investigative powers will also be excluded until the relevant decision can no longer be challenged by an action for annulment or the investigation is closed. During this investigation phase, only the specific rules relating to this field will apply. Thus, information obtained from natural or legal persons in the course of such investigations should continue to be protected after the relevant decision has become definitive. The wide definition of a “document” is maintained.

Exceptions: in order to align the proposed amendments with the Arhus Regulation, the Commission proposes that the exception seeking to protect the environment (Article 6(2) of the Arhus Regulation) is added to the Regulation on public access to documents. The proposal also states that the exception seeking to protect commercial interests will not apply to information on emissions. A separate mention is, therefore, made on intellectual property rights. At the same time the Commission has decided to include a new exception aimed at protecting procedures leading to the selection of staff or of contracting parties.

Consultation with Third Parties: a new Article has been introduced that lays down the procedure to be followed where access is requested for documents originating from a Member State. The Member State must be consulted unless it is clear that the documents shall or shall not be disclosed. In cases where the Member State gives reasons for not disclosing the requested documents – or on relevant similar and specific rules in its national legislation, the institution will deny access to these documents.

Procedural rules: the Commission proposes to extend the time limit for handling a confirmatory application to thirty working days, with a possibility for a further extension by 15 working days. Experience shows that it is almost impossible to handle a confirmatory application within 15 working days. A new paragraph has been added to Article 10 clarifying that, where specific modalities for access are laid in EU or national law, these must be respected.

Active Dissemination : provisions relating to active dissemination have been redrafted in order to grant direct access to documents, which are part of procedures leading to the adoption of EU legislative acts or non-legislative acts of general application. Such documents should be made accessible by the institutions from the outset, unless an exception to the public right access clearly applies.

COM(2008)0229
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