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Access to documents: would rules proposed by Council lower current standards?

28 March 2012

This report analyses in turn whether and to what extent the proposed Regulation on access to documents held by the Community institutions, in the version now being considered by the Council (4.4.01), would reduce the extent of the right of access to documents guaranteed by the current rules, as clarified by judgments of the Court of Justice and Court of First Instance and rulings by the EU Ombudsman.

The assessment takes as a starting point for 'current standards' the 1993 and 1994 Decisions of the Council and Commission, the former as supplemented 1998 and 1999 by further Council Decisions. It does not take into account the so-called 'Solana Decision' of summer 2000, which amended the Council rules to make them more restrictive and which is under challenge in two separate cases before the Court of Justice. Nor does it take into account the March 2001 amendment to the rules adopted by the Council.

The following analysis makes recommendations as to what changes to the version being considered need to be made to conform to current standards. This does not prejudge the issue of what further desirable changes to this text should be made to improve upon the present rules.

a) Article 3(b) definition of 'third party'

The issue of whether Member States constitute third parties under the current rules, given their involvement with EU decision-making and their obligations to implement EU law, is still open. It has been disputed before the Court of First Instance in pending cases T-111/00 and T-36/00, recently heard by that Court. So it is arguable that defining Member States as third parties would reduce current standards.

To conform to current standards: the words, 'excluding the Member States implementing Union law and participating in Union decision-making' should be added to Article 3(b), in place of 'including the Member States'. Article 4(4) must also be deleted as a consequence.

b) Discretionary exception: Article 4(3)

The wording of the Council text is tilted in favour of the institutions; this conflicts with case law applying the current rules. .

To conform to current standards: the reference to overriding public interest should be replaced by the following words: 'after considering in regard to each individual document the balance of interest between the institution's interest and the public interest in release of the document'.

c) Article 5: Member States

The current rules do not expressly affect Member States' legal and constitutional rules as regards access to documents.

To conform to current standards: Article 5 has to be deleted in its entirety.

d) Article 6(3): 'very large number of documents'

The current rules have no exception for 'a very large number of documents'.

To conform to current standards: the phrase should be deleted.

e) Article 8: reproduction

The wording is wider than found in the current rules.

To conform to current standards: replace wording with the current wording of the Commission and Council Decisions.

f) Article 9 'Sensitive documents'

The current rules (as defined above) do not create any category of 'sensitive' documents.

To conform to current standards: Article 9 should be deleted, along with any further references to Article 9 of the concept of 'sensitive' documents.

g) Article 12: registers

The current practice is to allow direct access to all documents on the register once they have been released to the public following an application under the access rules.

To conform to current standards: a new paragraph 12(1a) should be added, reading 'All documents shall be obtained by means of direct access via the register of documents once they have been released to the public following an application pursuant to this Regulation'. Current paragraphs (2) and (3) should end with the following words: 'without a prior request being made'.

Analysis by Steve Peers, Reader in Law, Human Rights Centre, University of Essex, 4 April 2001.