Public access to EU documents

1
Public access to EU documents

• Review of Regulation 1049/2001
• 3rd ARMA International Roundtable on Information
  Governance and Records Management
• 7 November 2008

2
Historical Overview

• Treaty of Maastricht
• Treaty of Amsterdam
• Regulation 1049/2001

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Treaty of Maastricht (1992)

• Declaration No 17 on the right of access to
  information
• Code of conduct on access to Council and
  Commission documents (1993)
• Parliament Decision on public access (1997)

4
Treaty of Amsterdam (1996)

• New Article 255 EC Treaty
• Public a right of access to European Parliament,
  Council and Commission documents
• Regulation 1049/2001
• Defines the principles and limits of the right of
  access(applicable from 3.12.2001)

5
Current Rules on Access

• Beneficiaries and Scope
• Limits
• Procedures

6
Beneficiaries and Scope

• Beneficiaries
• citizens and residents of the EU (natural or
  legal persons)
• no need to justify request
• Scope
• all documents drawn up or received
• in all areas of activity of the EU
•  document  is any content whatever its medium

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Limits

• Principle of harm
• documents are accessible unless disclosure would
  undermine a public or private interest
• no categories exempted
• exceptions apply as long as protection is
  required (maximum 30 years)

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Absolute Exceptions

• Protection of
• the public interest
• public security
• defence and military matters
• international relations
• financial, monetary or economic policy
• personal data

9
Relative Exceptions

• Protection of
• commercial interests
• court proceedings and legal advice
• the purpose of inspections, investigations and
  audits
• the decision-making process
• unless there is an overriding public interest

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Third-party documents

• Author consulted unless it is clear whether
  document should be released or not
• Institution decides on the basis of exceptions
• Other institutions consulted under  Memorandum
  of Understanding 

11
Member State documents

• Member States may request not to disclose
• They must motivate their opposition
• Institution cannot overrule motivated refusal
  from Member State
• If Member State fails to give reasons,
  institution decides

12
Handling of Requests

• Two-stage procedure initial and confirmatory
  applications
• Time limit 15 15 working days
• Means of redress
• Court of First Instance
• European Ombudsman

13
Active information

• Public registers of documents
• Direct access to documents, in particular
  legislative documents

14
The Review Process

• European Transparency Initiative
• EP Resolution of 4 April 2006
• Green Paper of 18 April 2007
• Proposal adopted on 30 April 2008

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Purpose of the Review

• More transparency on legislation
• Alignment with Århus Convention
• Clarification of scope, access to personal data
  and Member State documents

16
Transparency on Legislation

• Documents in the legislative process
• Published on the website
• unless an exception applies
• Article 12(1)

17
Alignment with Århus

• Beneficiaries any natural or legal person
• Article 2(1)
• Exception protection of the environment
• Article 4(1)(e)
• Overriding public interest information on
  emissions outweighs commercial interests
• Article 4(4)

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Clarifications

• Definition of a  document 
• Limitations to the scope
• Disclosure of personal data
• Access to Member State documents

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Definition of a document

• All documents received by an institution
• Documents drawn up once finished (sent to
  recipients or put on the file)
• Data stored in electronic databases extracted
  using existing tools
• Article 3 (a)

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Limitations to the Scope

• Written submissions to Courts from parties other
  than the institutions
• Article 2(5)
• Administrative documents during investigations
• Information obtained from third parties in
  investigations
• Article 2(6)

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Disclosure of personal data

• CFI judgment, Bavarian Lager/Commission case
  T-194/04 (under appeal)
• Only Regulation 1049/2001 applies
• Applicant does not have to prove necessity
  (obligation under Regulation 45/2001)
• Exception applies only if privacy or integrity
  affected

22
Disclosure of personal data

• Proposed amendment
• Disclosure of names, titles and functions is in
  the public interest, thus lawful under data
  protection rules
• All other cases check under data protection
  rules
• Article 4(5)

23
Member State Documents

• ECJ judgment, Sweden v Commission
• case C-64/05 P (setting aside a CFI judgment)
• MS must motivate refusal on exceptions
• No veto but assent
• Rules under national law may be interest worthy
  of protection

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Member State Documents

• Proposed amendments
• Member States may oppose disclosure
• Reasons based on exceptions of Regulation or on
  specific national provisions
• This provision does not apply to documents
  submitted in legislative process
• Article 5(2)

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Extension to all institutions

• Regulation 1049/2001 has been made applicable to
  the agencies
• Lisbon Treaty
• right of access to documents of all institutions,
  bodies and agencies
• Court of Justice, European Central Bank and
  European Investment Bank only administrative
  functions

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Number of access requests
27
Profile of applicants
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Useful websites

• Commission http//ec.europa.eu/dgs/secretariat_ge
  neral/index_en.htm
• Council http//www.consilium.europa.eu
• Parliament http//www.europarl.europa.eu/registre
  
• Court http//curia.europa.eu/en/index.htm