Brussels, 05/05/2008 (Agence Europe) -On Wednesday 30 April, the European Commission took decisions designed to improve public access to documents of the Community institutions. First of all, it adopted a proposed regulation on public access to documents of the European Parliament, the Council and the Commission. It then went on to adopt a decision aiming to specify the procedures to be followed to comply with the provisions of the Aarhus Convention on access to information, public participation in the decision-making process and access to justice in the field of the environment.
Article 255 of the Treaty instituting the European Community, as modified by the Treaty of Amsterdam, confers on all citizens of the European Union and all natural persons and legal entities residing or with headquarters in a Member State a right of access to documents of the European Parliament, the Council and the Commission. The principles and limitations governing this right of access were decided upon by regulation 1049/2001 on public access to documents of the European Parliament, the Council and the Commission. In a resolution adopted on 4 April 2006, the European Parliament called upon the Commission to present proposed modifications to this regulation. Then, on 18 April 2007, the Commission published a Green Paper launching a public consultation on the revision of this regulation.
In 2007, the Commission received more than 4000 requests for access to these documents, according to a Commission spokesperson, who went on to explain that the proposed changes will have the objective of increasing the transparency of the institutions, improving the efficiency of the system of access to documents and of clarifying certain articles in light of recent rulings of the court of justice. "We would like the system to be more proactive" for documents currently under the legislative process (publishing these texts, where no exemptions apply). In particular, the Commission would like to see an increase in the number of citizens taking advantage of this system. The institution notes that about 40% of applications for consultation of these documents came from lobbyists or law offices. Lastly, the spokesperson stated that the procedure for access to the documents would remain largely the same.
In its proposal, the Commission took the greatest possible account of the recommendations of the EP and the results of the public consultation.
Objective and beneficiaries of the regulation (articles 1 and 2). The wording of article 1, point a, has been modified slightly in order to specify that the objective of the regulation is to allow public access to documents. This wording is in line with the legal basis and has been confirmed by case law of the Court of First Instance. All natural persons or legal entities will have a right of access, irrespective of nationality or State of residents. This brings the regulation into line with the provisions of regulation 1367/2006 on access to information regarding the environment.
Scope of application and definitions (articles 2 and 3). It is laid down in article 2, paragraph 2, that the regulation will apply to all documents held by an institution concerning a matter relating to the policies, activities and decisions coming under the competence of this institution. A new paragraph 5 has been added to article 2, to clarify the fact that documents presented before the Courts by parties other than the institutions do not come under the scope of application of the regulation. It is worth noting that the Court of Justice is unaffected by the public right of access to documents under article 255 of the EC Treaty and that the Treaty of Lisbon extends this right to the Court of Justice, but only as regards documents related to its administrative activities.
Access to documents related to the exercise of powers of investigation of an institution are to be excluded until such time as the corresponding decision can no longer be the subject of proceedings for annulment or until the investigation is closed. The regulations governing procedures in the fields of competition and commercial defence (anti-dumping, anti-subsidies and safeguard measures) and procedures in the framework of the regulation on obstacles to trade contain provisions concerning privileged rights of access granted to interested parties, and provisions on publication. These rules would be compromised if the public had extended rights of access in virtue of regulation 1049/2001. The information obtained from natural persons or legal entities during the course of these investigations should continue to be protected after the corresponding decision has become definitive.
The broad definition of the notion of "document" featuring in article 3 has been kept in place. Furthermore, the definition of a "document" should cover data contained within electronic systems, as long as these can be extracted in a readable form.
Exemptions (Article 4). An exemption aiming to protect the environment (included in article 6, paragraph 2, of regulation 1367/2006) has been added to article 4, paragraph 1, of regulation 1049/2001, in order to bring it into line with the provisions coming under the Aarhus Convention. Again in order to bring the regulation into conformity with the Aarhus Convention , the exemption which aims to protect commercial interests (included in article 4, paragraph 2) will not apply to information on emissions, which come under environmental protection. As a consequence, the protection of intellectual property rights appears as a separate exemption.
The notion of "legal proceedings" is clarified and includes arbitration and dispute settlement procedures. A further exemption has been added, aiming to protect proceedings for the selection of personnel or sub-contracting parties. Transparency in this field is governed by the staff regulations and the financial regulations. The smooth functioning of competition juries and assessment committees must be preserved.
Consultations with third parties (article 5). The new article 5, paragraph 2, establishes the procedure to be followed in the event of a request for access to documents coming from a Member State. The Member State must be consulted, unless it is clear that the documents will or will not be divulged; if it indicates reasons justifying a refusal to divulge the documents requested, the institution will refuse access to these documents. This new provision takes account of the ruling returned by the Court of Justice in the appeal C-64/05.
Procedural rules (articles 6, 8 and 10). Article 6, paragraph 2, has been modified to take account of cases in which the documents requested are not easily identifiable. In article 8, the handling period of confirmatory applications has been extended to 30 working days, with a possible extension by a further 15 working days. Experience has shown that it was virtually impossible to deal with confirmatory applications within 15 working days. Dealing with a confirmatory application takes longer, because requests of this type lead to a formal decision by the institution, which is subject to strict procedure rules.
A new paragraph has been added to article 10 to specify that, in the event that Community or national rules provide specific details on access, these must be observed. This clarification will apply if access is subject to the payment of a fee which is a source of revenue for the body producing the documents, for instance.
Active distribution (article 12). This provision has been reworked to authorise direct access to the documents which are part of procedures for the adoption of legislative acts of the EU or non-legislative acts of general application. These documents should be made public by the institutions from the word go, unless an exemption to public access manifestly applies.
Lastly, the Commission adopted a decision modifying its internal regulation, in order to comply with the obligations of the Aarhus Convention on access to information, public involvement in the decision-making process and access to justice in the field of the environment. The regulation of 2006 (1367/2006) obliges the institutions and bodies of the Community to apply the provisions of the Aarhus Convention.
This Convention, which was adopted in application of article 10 of the Decoration of Rio for the region of Europe of the United Nations Economic Commission, focuses on access to information, public participation in the decision-making process and access to justice in the field of the environment. It can be broken down into the following three areas: 1) developing public access to information held by public authorities, notably by providing for transparent and accessible distribution of fundamental information; 2) promoting public involvement in decision-making in fields with an impact on the environment. Amongst other things, provision is made for public participation to be encouraged from the very beginning of a key planning decision, "which is when all options and solutions are still open and the public may have a genuine influence". The result of public involvement must be taken into consideration in the final decision, which must also be the subject of information; 3) extending the conditions of access to justice in the field of environmental legislation and access to information. (L.C.)