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Europaudvalget 2006-07
EUU Alm.del EU-note E 57
Offentligt

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 18.4.2007

COM(2007) 185 final

GREEN PAPER

Public Access to Documents held by institutions of the European Community

A review

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GREEN PAPER

Public Access to Documents held by institutions of the European Community

A review

NTRODUCTION

During the last fifteen years, the institutions of the European Union have gradually

become more open to the public. The principle of openness was introduced by the

Treaty of Maastricht in 1991, with a view to strengthen the democratic nature of the

institutions. The Council and the Commission subsequently adopted a Code of

Conduct on public access to their documents as an additional and essential part of

their information and communication policy.. In 1996, the public right of access was

enshrined in Article 255 of the Treaty establishing the European Community, as

amended by the Treaty of Amsterdam. Regulation (EC) No 1049/2001

gives effect

to the right of citizens to obtain documents of the European Parliament, the Council

and the Commission.

The Regulation, which became applicable on 3 December 2001, has led to a steep

and sustained increase in requests for access to documents, as the annual reports

published by the three institutions show

. In January 2004 the Commission published

a report on the implementation of the Regulation, which provided a first overview of

how the EU’s regime for public access to documents works in practice

. It appeared

that the number of access requests was increasing with around 50% every year. Since

on average two thirds of requests were granted, the Regulation had opened to the

public a considerable amount of previously unpublished documents. On the other

hand, the exceptions set out in the Regulation provided adequate protection for

legitimate interests. Even if the implementation of the Regulation put a burden on the

institutions, the overall conclusion was that it had worked remarkably well.

Therefore, the Commission considered that there was no need to amend the

Regulation in the short term, but that improvements could be achieved without

changing the legislation.

Three years have passed since this first evaluation, during which more experience

has been gained, a body of case law has developed and a number of complaints have

been settled by the European Ombudsman. Furthermore, the European Parliament

and the Council have adopted a new Regulation applying the Convention of Århus

OJ L 145, 31.5.2001, p. 43.

These reports are available on the following websites:

Parliament: http://www.europarl.europa.eu/register/pdf/FINAL_605496_1_EN.pdf

Council: http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=305&lang=EN&mode=g

Commission: http://ec.europa.eu/transparency/access_documents/index_en.htm

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.

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.

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to the institutions and bodies of the European Community, which will have an impact

on access to documents containing environmental information.

For these reasons, the time seems right to assess whether the Regulation needs to be

amended. Therefore, when the Commission decided, on 9 November 2005, to launch

a “European Transparency Initiative”

, it included a review of Regulation (EC) No

1049/2001 as part of this drive to create more openness. In a Resolution adopted on 4

April 2006, the European Parliament called on the Commission to come forward

with proposals for amending the Regulation

The right of access to documents is one aspect of a policy on openness and the

Regulation must be seen against the background of the information and

communication policy of the institutions. In this context, the new policy of open

meetings in Council is of particular significance.

In the present consultation document, the Commission first takes stock of the

existing rules governing the public right of access to documents and their

implementation, then outlines some options for improving the legislation and

practical measures aimed at offering better access to documents of the institutions.

The public is invited to comment on the regime for obtaining access to documents of

the European institutions and also to react to the options set out in this Paper.

Through the questionnaire, the Commission is seeking the views of citizens,

including civil society organisations, economic operators, public authorities and

other organisations with an interest in European affairs.

The public consultation starts with the publication of this Green Paper and will last

for three months. The Commission intends to analyse carefully the responses

received, and will publish a report summarising the outcome of this public

consultation and outlining follow-up action. On the basis of this report, the

Commission will submit proposals for amending Regulation (EC) No 1049/2001.

The expected time schedule is as follows:

•

Public consultation:

•

Report on the outcome:

•

Proposals for amending the Regulation:

from mid April to mid July 2007

September 2007

October 2007.

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).

Minutes of the Commission's meeting No 1721 of 9 November 2005, item 6; see also documents

SEC(2005) 1300 and SEC(2005) 1301.

P6_A(2006) 052.

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ART ONE

: A

PPLICATION OF THE EXISTING

ULES ON

UBLIC

CCESS

MPLEMENTATION OF THE

EGULATION

Statistics show that, overall, the Council and the Commission grant two out of three

applications for access. Parliament grants more than 80% of the requests it receives,

largely on account of the public nature of its proceedings.

There has been a steady increase in the number of initial access requests submitted to

the Parliament and the Commission. The number of requests submitted to the

Council remains stable, largely due to the increasing number of documents made

directly available on the Council's register. On the other hand the number of

confirmatory requests (i.e. applications asking the institution to reconsider a refusal

to grant access) remains more or less stable

. Globally, only 4% of all initial requests

submitted to the three institutions lead to confirmatory requests. Applications to the

Court and complaints to the European Ombudsman represent only a very small

margin of the total number of requests handled.

Against this background, the report on the implementation of the Regulation,

published on 30 January 2004 concluded that the rules on public access had worked

in a very satisfactory way. Recent experience tends to confirm the findings of this

report, in particular as concerns access in relation to legislative procedures and the

expansion of proactive information provision by the institutions. However, there is

scope for greater clarity as concerns the application of the general right of access

when applied simultaneously with balancing interests arising in relation to case-

related work, such as data protection or specific rights of access.

1.1.

Beneficiaries and types of documents requested

•

Even if more and more citizens use their right of access, most requests are

submitted by specialists in EU affairs: economic operators, law firms, NGOs and

the academic world.

•

The main areas of interest are competition cases

, taxation, the internal market, the

environment, public procurement (Commission) and Justice and Security

(Council).

•

Applications submitted to the Commission often relate to complete specific files

or to "all documents" on a given subject, requiring the analysis of a large number

of documents.

•

Many access requests, in particular among those submitted to the Commission, are

related to litigation; some applicants request access to material that can be useful

for lodging complaints or bringing proceedings before a court of law.

The number of confirmatory requests submitted to Parliament has risen from 1 to 10 between 2004 and

2005.

13% of requests handled by the Commission concern competition policy and relate mostly to state aid

cases.

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1.2.

Limitations on the right of access

Some exceptions are invoked in a limited number of cases. The exceptions most

frequently relied on are:

the decision-making process

Council

Commission

inspections and investigations (e.g. infringements, cartels, merger controls, Commission

State aids, trade defence cases, investigation by the anti-fraud office

OLAF)

the interests of third parties involved in an administrative procedure Commission

(commercial interests, data protection)

Parliament

1.3.

Public access and data protection

The right of access to documents and the right of individuals with regard to

protection of their personal data are both rooted in the EC Treaty (Articles 255 and

286 respectively). They have been implemented through two Regulations: (EC) No

45/2001 on data protection

and (EC) No 1049/2001 on public access to documents.

However, the two rights may collide when access is requested specifically to

information relating to an individual. The European Data Protection Supervisor has

addressed this issue in a background paper, providing useful practical guidance for

handling such requests

. Three cases concerning refusal by the Commission to

disclose personal data are currently pending before the Court of First Instance

. Two

other pending cases address the data protection issue amongst others

1.4.

General and specific rights of access

The purpose of Regulation (EC) No 1049/2001 is to grant the public the widest

possible access to documents held by the Community institutions.

Specific rules grant parties involved in a particular procedure a privileged right of

access to relevant documents which cannot be disclosed to the public. Under these

rules, access is often subject to particular conditions and procedures, which together

deliver a delicate balance between the rights of the defence and the need to protect

the effectiveness of procedures.

The relation between public access and privileged access might need to be clarified

in order to avoid inconsistencies.

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).

“Public Access to Documents and Data Protection”, Background Paper Series, July 2005, No 1.

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.

Cases T-121/05 and T-166/05,

Borax Europe Ltd. v Commission.

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1.5.

Active provision of information

Public registers enable citizens to identify documents that might be of interest to

them and to effectively exercise their right of access. Where documents can be made

accessible to the public, the institutions make them directly available on the Internet.

There is room for improvement as regards:

– the scope of the registers, in particular those of the Commission;

– the number of documents or the amount of information made directly accessible

to the public;

– the user-friendliness of the electronic information systems.

Parliament, the Council and the Commission have already started looking at ways of

improving the dissemination of information through the Internet. Such improvements

can be achieved without amending the legislation.

HE CASE LAW ON

EGULATION

(EC) N

1049/2001

Even if the number of cases brought before the Court of First Instance is very limited

as compared to the number of access requests, the Court has, in a series of recent

judgments, clarified some provisions of the Regulation and in particular the scope of

some of the exceptions to the right of access. This has contributed significantly to

improve the implementation of the existing rules. Incorporating settled case law in a

new legal text would provide more legal clarity for citizens and better guidance for

the institutions when handling access requests.

2.1.

General characteristics of the Regulation

The Court of First Instance has clearly stated that the purpose of the Regulation is to

ensure that every person has access to public documents. The specific interest of a

person in obtaining access to a document, e.g. for the purpose of defending a position

in litigation, is not relevant with regard to the decision whether or not to disclose the

document when the institution applies the mandatory exceptions under Article 4(1)

(a) or when a Member State opposes disclosure in accordance with Article 4(5)

. In

a recent judgment, the Court of First Instance has ruled that it follows from Article

6(1) of the Regulation, whereby an applicant is not obliged to state reasons for the

application, that a request for access must be handled regardless of the person who

made the application

. In the same judgment, the Court has stated that an applicant’s

right of defence in a case is of a private nature. Therefore, it cannot constitute an

overriding public interest in disclosure of a document

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.

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.

Same judgment, at paragraphs 136-139.

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2.2.

2.2.1.

Procedural issues

The need to carry out a concrete analysis of the documents to which access is

requested

The refusal to grant access to documents must, in principle, be based on a concrete

analysis of their content in order to assess the extent to which an exception to the

right of access is applicable and the possibility of granting partial access. However,

such an examination may not be necessary where, due to the particular circumstances

of the individual case, it is obvious that access must be refused or, on the contrary,

granted

2.2.2.

The handling of voluminous requests

According to the case law mentioned in the previous paragraph, the mere fact that an

application for access concerns a large number of documents does not relieve the

institutions of the obligation to carry out a concrete examination of the documents. In

the same judgment, the Court indicated that in exceptional cases, where the

administrative burden entailed by a concrete and individual examination of the

documents would exceed what may reasonably be required, a derogation to the

obligation to examine the documents may be permissible. However, the institutions

must investigate all other conceivable options in order to limit their workload, while

granting at least part of the applicant's request

2.3.

2.3.1.

Clarification of exceptions

The protection of legal advice - Article 4(2) 2

indent

The Court of First Instance has established that the exception aimed at protecting

“legal advice”, set out in Article 4(2), second indent of the Regulation, applies to any

legal advice given by the Legal Service of the institutions and is not limited to advice

given in the course of litigation. However, as is the case with other documents

relating to interests protected, refusal to disclose a document containing a legal

opinion must be based on a concrete and individual examination

. An appeal to the

Court of Justice against this judgment is pending.

2.3.2.

The protection of investigations – Article 4(2) 3

indent

The Court of First Instance has clarified the fact that certain types of documents

relating to pending investigations are covered by the purpose of these investigations.

With regard to infringement proceedings, the Court held that Member States are

entitled to expect the Commission to guarantee confidentiality during investigations

which might lead to infringement proceedings. This requirement of confidentiality

remains even after the matter has been brought before the Court of justice

Judgment of the Court of First Instance of 13 April 2005, case T-2/03,

Verein für

Konsumenteninformation v Commission.

idem

Judgment of 23 November 2004, case T-84/03,

Maurizio Turco v Council.

Case T-191/99,

David Petrie a.o. v Commission.

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More recently, the Court of First Instance indicated that acts of investigation or

inspection may remain covered by the exception based on the protection of

inspections, investigations and audits as long as the investigations or inspections

continue, even if the particular investigation or inspection which gave rise to the

report to which access is sought is completed. However, the possibility to grant

access to such documents may not depend on an uncertain, future and possibly

distant event

. The concrete application of these principles might require

clarification.

2.3.3.

The ability of Member States to oppose disclosure of documents originating from

them - Article 4(5) of the Regulation

Declaration No 35 attached to the Final Act of the Treaty of Amsterdam provides

that a Member State may request the Commission or the Council not to communicate

to third parties a document originating from that State without its prior agreement.

This Declaration is reflected in Article 4(5) of the Regulation. The Court of First

Instance held that, where the originating Member State has requested that a

document not be disclosed, the application for access to that document is governed

by the relevant national provisions and not by the Regulation

. In accordance with

this case law, institutions will always consult the authorities of the Member State

when they receive a request for access to a document originating from that Member

State. It should be noted, however, that the judgment in case T-168/02,

Internationaler Tierschutz-Fonds GmbH v Commission, is under appeal to the Court

of Justice.

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

. 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

Joined cases T-391/03 and T-70/04,

Franchet and Byk v Commission.

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.

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.

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competition policy, where the Commission holds information supplied by or

obtained from undertakings, but also in trade defence cases

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

. 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.

3.1.

URTHER

EVELOPMENTS

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

. 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

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.

Case T-353/94,

Postbank v Commission,

[1996] ECR II-921, paragraph 87.

OJ L 264, 25.9.2006, p. 13.

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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

citizens

and

residents

Any natural or

legal person

Regulations

(EC) No

1049/2001 +

(EC) No

1367/2006

Voluntary

rules

Regulation

(EC) No

1367/2006

Regulation

(EC) No

1367/2006

Parliament

Council

Commission

Agencies

Any document

Any

Court of Auditors

document

European Central Bank

European Investment Bank

European Economic and Social Committee

Committee of the Regions

European Ombudsman

European Data Protection Supervisor

Court of Justice (except when acting in a

judicial capacity)

Only

environmental

information

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.

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ART

: O

PTIONS FOR IMPROVING THE

CCESS

ULES

VERALL

SSESSMENT

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.

5.1.

MORE ACTIVE

ISSEMINATION

OLICY

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.

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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

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/

http://www.europarl.europa.eu/registre/recherche/RechercheSimplifiee.cfm?langue=

http://www.consilium.europa.eu/cms3_applications/showPage.asp?lang=en&id=549

&mode=g&name=

http://ec.europa.eu/transparency/regdoc/registre.cfm?CL=en&testjs=1

http://ec.europa.eu/transparency/regcomitology/registre.cfm?CL=en

Regulation (EC) No 1367/2006, Article 4.

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Question 1: Would you qualify the information provided through registers

and on the websites of the institutions as

comprehensive and easy to access?

comprehensive but difficult to find?

easy to access but insufficient as regards their coverage?

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 opinion

Explanation and comments:

THE

ULES ON

CCESS TO ENVIRONMENTAL

THE GENERAL

YSTEM OF

CCESS TO

OCUMENTS

NTEGRATING

NFORMATION

INTO

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

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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

, 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 opinion

Explanation and comments:

Directive 2003/4/EC.

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7.1.

ALANCING INTERESTS

Public access and the protection of personal data

It is advisable to await case law regarding the collision of these two rights

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?

Granting partial access to documents, expunged for personal data, is a

satisfactory way of balancing transparency and the protection of personal data.

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).

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

See pending cases mentioned in footnotes 11 and 12.

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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

, 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), 1

indent of

Regulation

(EC) No

1049/2001 be clarified in order to ensure

adequate protection of commercial and economic interests of

third parties?

The current system where the protection of commercial interests is balanced

against the public interest in disclosure strikes the right balance.

More weight should be given to the interest in disclosure.

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

Case T-198/03,

Bank Austria Creditanstalt AG v Commission,

in particular paragraph 71.

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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

. 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 opinion

Explanation and comments:

Article 6(3) of the Regulation.

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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)

. 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 t

he concept of

"document" cover sets of information that can be extracted using the

existing search tools?

YES

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:

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.

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•

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 t

he Regulation indicate events before and after which

exceptions would or would not apply?

YES

No opinion

Explanation and comments:

INAL

OMMENTS

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

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NNEX

Statistics on the access requests handled by the institutions

2002

Parliament

Initial

requests

Council

Commission

Parliament

Confirmatory

Council

requests

Commission

Notes:

(1)

(2)

(3)

This figure for initial requests handled by Parliament in 2002 includes requests

for access to published documents.

Figures for 2006 are estimates.

Figures concerning the European Parliament are not available yet.

637

(1)

2394

991

2003

165

2830

1523

143

2004

186

2160

2600

162

2005

298

2100

3173

167

2006

(2)

(3)

2224

6712

(3)

112