Comments on the Commission's Proposal to Reform Regulation 10492001

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Comments on the Commission's Proposal to Reform
Regulation 1049/2001

• Fergal O Regan
• Head of Legal Unit
• European Ombudsman

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Why do we have access rules?

• Transparency Accountability Legitimacy
• Legitimacy is a key constituent of democracy
• As regards transparency in the legislative
  process, it is of paramount importance
• However, in a democratic system, the
  administrative process must also prove its
  legitimacy, which implies that it too must be
  accountable and transparent

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Some Positive Aspects

• First, all natural and legal persons should have
  the right of access, rather than only those
  persons who reside, or have a registered office
  in, a Member State.
• Second, the inclusion of a new exception for the
  protection of the environment, such as breeding
  sites of rare species is fully justified.
• Third, the Commission proposes a new obligation
  on the Institutions to define in their rules of
  procedure which categories of documents are
  directly accessible to the public. Documents that
  are directly accessible are made available to the
  public proactively, without the need to use the
  application procedure laid down in the
  Regulation. The new requirement could thus help
  to ensure more rapid public access to certain
  documents.

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Definition of document

• The proposal changes the definition of
  document. The proposed change would mean that
  no application for access to a document drawn up
  by an institution could be made unless that
  document had been formally transmitted to one or
  more recipients or otherwise registered.

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Limited Scope

• The proposal also provides that it should be
  modified to exclude from its scope documents
  gathered in the context of investigatory
  proceedings.

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Recent Case on Scope

• The fact that a sector specifc regulation exists
  does not exclude the application of 1049/2001
• the fact that an undertaking which is party to a
  concentration does not have the right of access
  to the internal documents in the administrative
  file by virtue of Article 17(3) of Regulation No
  802/2004 does not mean that it can be ruled out
  that any person, whoever it may be, may have a
  right of access to those documents on the basis
  of the principles laid down in Regulation No
  1049/2001 Mytravel (9 September 2008)

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View of the Ombudsman

• The European Ombudsman has stated that he does
  not agree with the Commission's view that the
  rules on access set out in the specific
  Regulation applying to such investigations would
  be undermined if the public were to be granted
  access subject to the exceptions set out in
  Regulation 1049/2001.

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View of the Ombudsman

• Under the current Regulation, most of the
  documents concerned would probably be covered by
  one or more of the existing exceptions. However,
  disclosure might still be required if there were
  an overriding public interest.
• The Commissions proposal would remove that
  possibility, as well as relieving it of the
  obligation to show concretely that harm to the
  protected interest would occur as a result of
  disclosure.

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Documents from Member States

• Regulation 1049/2001 extends to documents
  originating from Member States and held by the
  Council, Commission or Parliament.
• Article 4(5) of the Regulation states that a
  Member State may request the institution to which
  a request for access has been made not to
  disclose a document originating from that Member
  State without its prior agreement.
• Important in Article 226 cases and state aid
  cases.

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Documents from Member States

• The Court of Justice has confirmed that while a
  Member State is entitled to request that access
  to documents originating from it be refused, it
  must, when making such a request, give reasons
  for such access being refused.
• These reasons must be based on the exceptions
  referred to in Article 4 of Regulation 1049/2001.
  
• It follows that a Member State cannot rely on
  exceptions based solely on national law, nor can
  a Member State simply order the institution not
  to release the document without giving reasons

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Documents from Member States

• The proposal states that the institution holding
  the document shall disclose the document unless
  the Member State gives reasons for withholding
  it, based on the exceptions referred to in
  Article 4 or on specific provisions in its own
  legislation.
• The proposal goes on to state that the
  institution shall appreciate the adequacy of
  reasons given by the Member State insofar as they
  are based on exceptions laid down in this
  Regulation.

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Right of access and rights to privacy

• This issue has arisen as regards blanking out of
  the names of persons attending meetings with the
  Commission (Bavarain Lager).
• Article 4(1)(b) of Regulation 1049/2001 provides
  for an exception where disclosure would undermine
  the protection of the privacy and the integrity
  of the individual" .

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Right of access and rights to privacy

• The Commission proposal of April 2008 states
  that, if a document contains personal data,
  Regulation 1049/2001 should cease to apply and
  Regulation 45/2001 should apply instead.
• That is the opposite of what the Court of First
  Instance decided in the Bavarian Lager case.

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Conclusions