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• Amendment to the 1993 Decision on public access to Council documents and to the decision, in December 1999 to include references to classified documents on the public register

Amendment to the 1993 Decision on public access to Council documents and to the decision, in December 1999 to include references to classified documents on the public register

Introduction

This amendments to the 1993 Decision on public access to Council documents was agreed at the meeting of COREPER on 26 July and adopted by "written procedure" on 14 August 2000. It not only changes the 1993 Decision but also overturns the Council Decision in December 1999 to include references to classified documents on the public register of documents. Below there is:

1. i) the full-text of the Decision is given below and
2. ii) the 1993 Decision as amended by this latter Decision

TEXT

COUNCIL OF THE EUROPEAN UNION

31 July 2000

10702/00

LIMITE

INF 93 JUR 268

LEGISLATIVE ACTS AND OTHER INSTRUMENTS

Subject: Council Decision amending Decision 93/731/EC on public access to Council documents and Decision 2000/23/EC on the improvement of information on the Council's legislative activities and the public register of Council documents

COUNCIL DECISION

of ……………..

amending Decision 93/731/EC on public access to Council documents and Council Decision 2000/23/EC on the improvement of information on the Council's legislative activities and the public register of Council documents

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Union, and in particular Article 207 thereof,

Having regard to its Rules of Procedure, and in particular Article 10 thereof,

Whereas:

(1) The European Council, meeting in Helsinki in December 1999, provided political impetus for the development of the European Union's means for military and non-military crisis management within the framework of a strengthened European security and defence policy.

(2) In this context, the Council must introduce rules guaranteeing effective protection of documents concerning these matters disclosure of which could harm the essential interests of the Union or of one or more of its Member States. For this reason, under the Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat of the Council, such documents must be classified as TRES SECRET/TOP SECRET or SECRET or CONFIDENTIEL.

(3) The seriousness of the consequences of disclosure of such documents, in particular with regard to the prospective development of the new strengthened European security and defence policy, and the necessary confidence which those involved must be able to have at a crucial moment in the development of this policy, justify the exclusion of such documents from the scope of the rules on public access to Council documents until such time as they are declassified, or declassified in accordance with the rules referred to in recital (2) concerning classification of documents.

(4) The exchange of information in the particularly sensitive areas referred to in recital (1), which is one of the features of the development of this new policy, will work only if the originator of such information can be confident that no information put out by him will be disclosed against his will. It is therefore necessary to provide that a Council document from which conclusions may be drawn regarding the content of classified information put out by a natural or legal person, a Member State, another Community institution or body or any other national or international body may be made available to the public only with the prior written consent of the author of the information in question.

(5) With the same objective of reinforcing protection of the confidentiality of information when scrutinising documents to which access has been requested, it should be provided that measures are taken to ensure compliance with the principle that access to classified documents must be reserved for those persons who are authorised to take cognisance thereof.

(6) Since the security and defence of the Union or of one or more of its Member States or military and non-military crisis management represent public interests which Decision 93/731/EC (1) is intended to protect, this should be specifically mentioned among the reasons justifying refusal of access to a document,

HAS DECIDED AS FOLLOWS:

Article 1

The provisions of Decision 93/731/EC is hereby amended as follows:

Article 1(1) shall be replaced by the following:

"1. The public shall have access to Council documents, except for documents classified as TRES SECRET/TOP SECRET, SECRET or CONFIDENTIEL within the meaning of the Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat of the Council, on matters concerning the security and defence of the Union or of one or more of its Member States or on military or non-military crisis management, under the conditions laid down in this Decision.

Where a request for access refers to a classified document within the meaning of the first subparagraph, the applicant shall be informed that the document does not fall within the scope of this Decision.

The following paragraph shall be added to Article 2:

"3. Without prejudice to Article 1(1), no Council document on matters concerning the security and defence of the Union or of one or more of its Member States or on military or non-military crisis management which enables conclusions to be drawn regarding the content of classified information from one of the sources referred to in paragraph 2 may be made available to the public except with the prior written consent of the author of the information in question.

Where access to a document is refused pursuant to this paragraph, the applicant shall be informed thereof."

3. Article 3(1) shall be replaced by the following:

"1. The applicant shall have access to a Council document either by consulting it on the spot or by having a copy sent at his own expense. The fee shall be set by the Secretary-General/High Representative for Common Foreign and Security Policy (hereinafter referred to as the "Secretary-General")."

4. The first indent of Article 4(1) shall be replaced by the following:

"- the protection of the public interest (public security, the security and defence of the Union or of one or more of its Member States, military or non-military crisis management, international relations, monetary stability, court proceedings, inspections and investigations),"

5. The following sentence shall be added at the end of Article 5:

"The Permanent Representatives Committee shall see to it that the necessary measures are taken to ensure that the preparation of such decisions is entrusted to persons authorised to take cognisance of the documents concerned."

6. In Article 7(3), the references to Articles 138e and 173 of the Treaty establishing the European Community shall be replaced by references to Articles 195 and 230 of the Treaty establishing the European Community.
7. The following sentence shall be added at the end of Article 7(5):

"The extension may be for two months where it is necessary to consult a source other than the Council, as provided in Article 2(3)."

Article 2

Decision 2000/23/EC (2) is hereby amended as follows:

The following shall be added as the second subparagraph of Article 2:

"The public register of Council documents contains no reference to documents classified TRES SECRET/TOP SECRET or SECRET or CONFIDENTIEL within the meaning of the Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat of the Council, on matters concerning the security and defence of the Union or of one or more of its Member States or on military or non-military crisis management."

The first indent of Article 4 shall be replaced by the following:

"- the protection of the public interest (public security, the security and defence of the Union or of one of its Member States, military or non-military crisis management, international relations, monetary stability, court proceedings, inspections and investigations),".

Article 3

The Secretary-General of the Council shall take necessary measures to ensure the implementation of this Decision.

Article 4

This Decision shall take effect as from the day of its publication in the Official Journal of the European Communities.

Done at Brussels,

For the Council

The President

1. OJ L 340, 31.12.1993, p. 43. Decision amended by Decision 96/705/Euratom, ECSC, EC (OJ L 325, 14.12.1996, p. 19).
2. OJ L 9, 13.1.2000, p. 22.

Council decision (20.12.93) on public access to Council documents as amended by the decision of 14 August 2000

THE COUNCIL,

Having regard to the Treaty establishing the European Community, and in particular Article 151 (3) thereof,

Having regard to its Rules and Procedure, and in particular Article 22 thereof, [Note 1]

Whereas on 6 December 1993 the Council and the Commission approved a code of conduct concerning public access to Council and Commission documents, reaching common agreement on the principles which must govern such access;

Whereas provisions should be adopted for the implementation of those principles by the Council;

Whereas these provisions are applicable to any document held by the Council, whatever its medium, excluding documents written by a person, body or institution outside the Council;

Whereas the principles of allowing the public wide access to Council documents, as part of greater transparency in the Council's work, must however be subject to exceptions, particularly as regards protection of the public interest, the individual and privacy;

Whereas, in the interests of rationalization and efficiency, the Secretary-General of the Council should sign on behalf of the Council and on its authorization replies to applications for access to documents, except in cases where the Council is called upon to reply to confirmatory application;

Whereas this Decision must apply with due regard for provisions governing the protection of classified information,

HAS DECIDED AS FOLLOWS:

Article 1

["1.The public shall have access to Council documents under the conditions laid down in this Decision" is replaced by]:

Article 1(1) shall be replaced by the following:

"1. The public shall have access to Council documents, except for documents classified as TRES SECRET/TOP SECRET, SECRET or CONFIDENTIEL within the meaning of the Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat of the Council, on matters concerning the security and defence of the Union or of one or more of its Member States or on military or non-military crisis management, under the conditions laid down in this Decision.

Where a request for access refers to a classified document within the meaning of the first subparagraph, the applicant shall be informed that the document does not fall within the scope of this Decision.

2."Council document" means any written text, whatever its medium, containing existing data and held by the Council, subject to Article 2 (2).

Article 2

1. An application for access to a Council document shall be sent in writing to the Council. It must be made in a sufficiently precise manner and must contain information enabling the document or documents requested to be identified. Where necessary, the applicant shall be asked for further details.

2.Where the requested document was written by a natural or legal person, a Member State, another Community institution or body, or any other national or international body, the application must not be sent to the Council, but direct to the author.

[new clause]

"3. Without prejudice to Article 1(1), no Council document on matters concerning the security and defence of the Union or of one or more of its Member States or on military or non-military crisis management which enables conclusions to be drawn regarding the content of classified information from one of the sources referred to in paragraph 2 may be made available to the public except with the prior written consent of the author of the information in question.

Where access to a document is refused pursuant to this paragraph, the applicant shall be informed thereof."

Article 3

[The current: "1.The applicant shall have access to a Council document either by consulting it on the spot or by having a copy sent at his own expense. The fee shall be set by the Secretary-General." is replaced by]:

"1. The applicant shall have access to a Council document either by consulting it on the spot or by having a copy sent at his own expense. The fee shall be set by the Secretary-General/High Representative for Common Foreign and Security Policy (hereinafter referred to as the "Secretary-General")."

2.The relevant departments of the General Secretariat shall endeavour to find a fair solution to deal with repeat applications and/or those which relate to very large documents.

3. Anyone given access to a Council document may not reproduce or circulate the document for commercial purposes through direct sale without prior authorization from the Secretary General.

Article 4

1. Access to a Council document shall not be granted where its disclosure could undermine:

[- the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations) - this is replaced by]

"- the protection of the public interest (public security, the security and defence of the Union or of one or more of its Member States, military or non-military crisis management, international relations, monetary stability, court proceedings, inspections and investigations),"

- the protection of the individual and of privacy,

- the protection of commercial and industrial secrecy,

- the protection of the Community's financial interests,

- the protection of confidentiality as requested by the natural or legal person who supplied any of the information contained in the document or as required by the legislation of the Member State which supplied any of that information.

2. Access to a Council document may be refused in order to protect the confidentiality of the Council's proceedings.

Article 5

The Secretary-General shall reply on behalf of the Council to applications for access to Council documents, except in the cases referred to in Article 7 (3), in which the reply shall come from the Council.

[new sentence added]

"The Permanent Representatives Committee shall see to it that the necessary measures are taken to ensure that the preparation of such decisions is entrusted to persons authorised to take cognisance of the documents concerned."

Article 6

Any application for access to a Council document shall be examined by the relevant departments of the General Secretariat, which shall suggest what action is to be taken on it.

Article 7

1. The applicant shall be informed in writing within a month by the relevant departments of the General Secretariat either that his application has been approved or that the intention is to reject it. In the latter case the applicant shall also be informed of the reasons for this intention and that he has one month to make a confirmatory application for that position to be reconsidered, failing which he will be deemed to have withdrawn his original application.
2. Failure to reply to an application within a month of submission shall be equivalent to a refusal, except where the applicant makes a confirmatory application, as referred to above, within the following month.
3. Any decision to reject a confirmatory application, which shall be taken within a month of submission of such application, shall state the grounds on which it is based. The applicant shall be notified of the decision in writing as soon as possible and at the same time informed of the content of Articles 195 [138e] and 230 [173] of the Treaty establishing the European Community, relating respectively to the conditions for referral to the Ombudsman by natural persons and review by the Court of justice of the legality of Council acts.
4. Failure to reply within a month of submission of the confirmatory application shall be equivalent to a refusal.

[new sentence added]

"The extension may be for two months where it is necessary to consult a source other than the Council, as provided in Article 2(3)."

Article 8

This Decision shall apply with due regard for provisions governing the protection of classified information.

Article 9

This Decision shall be reviewed after two years of operation. In 1995 the Secretary-General shall submit a report on the implementation of this Decision in 1994 and 1995, in preparation for that review.

Article 10

This Decision shall take effect on 23 August 2000.