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Brussels, 18 October 1993 (20.10)
THE COUNCIL
(OR. f)
9381/93
RESTREINT
AG 18
NOTE
__________________________________________________________________
from:
Presidency
to:
Permanent Representatives Committee (Part 2) meeting on 20 October 1993
Subject:
Public access to Council and Commission documents
In
the light of the discussion concerning public access to the Institutions'
documents which the Friends of the Presidency Group held on 8 and 15 October
1993, the Presidency proposes, in co-operation with the Commission, the draft
compromise contained in the Annex, which establishes a code of conduct on
public access to Commission and Council documents.
A
two-tier structure is involved, although some delegations would have preferred
the principle of access to documents to be provided under a single legal act
(for example, on the basis of Article 235 EEC):
The
Council and the Commission would jointly adopt a political act which each
Institution would be responsible for implementing by means of independent
decisions creating objective rights for citizens.
Pursuant to the conclusions of the Copenhagen European Council, these
decisions would have to be taken by 1 January 1994.
One
delegation wanted a reference to be made to the two ways of challenging an
Institution's final decision which will remain open to citizens once the
administrative appeal procedures have been exhausted, viz:
–
judicial proceedings (in accordance with Article 173 EEC)
–
intervention by the ombudsman (under the conditions specified in
Article G. 138e of the Treaty on European Union).
Following
that examination, the Presidency considers that the following points should be
brought to the attention of the Permanent Representatives Committee:
1.
Type of common instrument and
adoption procedures
COREPER should comment on the form of the common instrument:
– common declaration/conclusions?
– code of
conduct?
All the delegations and the Commission want the text of the instrument
to be made public (by publication in the Official Journal).
The possibility of giving a degree of formality to the adoption of the
text (e.g. joint signing by the two Presidents in front of the press) was
also raised.
Finally, the question was also raised of the advisability of inviting
the other decentralized bodies (Environment Agency, Drugs Monitoring Centre,
etc.), without prejudice to the form of such an invitation, to base themselves
on these principles as regards access to documents held by them.
2.
Binding nature of the internal provisions
Most delegations were in favour of adopting binding provisions.
The latter may take the form of a "Beschluss"-type act or an
amendment to the rules of procedure, once recourse to Article 235 EEC is ruled
out in this connection.
The other delegations have challenged the fact that such provisions
could assume a binding nature.
3.
Documents from a secondary source but held by the Institutions
The principle has been established that access to documents from a
source other than the Institution approached must be requested at the source
of the document.
One delegation raised the problem of correspondence from the Commission
to a Member State. It was thought
that access to this type of document should be dealt with no differently from
access to other Commission documents.
4.
Administrative appeal proceedings
The great majority of delegations ruled out the idea of setting up an
external commission independent of the Institution concerned
The preference is for a system whereby, following an initial negative
decision, a second application may be made by the party concerned to the
Institution concerned, which will give its final decision, stating the reasons
on which it is based.
How the Institution organizes its decision at the time of the initial
and the second application would be left to the Institution's discretion.
One delegation wanted the code of conduct to include more precise
details of how this appeal procedure would operate.
5.
Exceptions
Some delegations took the view that documents covered by these
exceptions could continue to be released subject to an express decision taken
by the Institution concerned. Other
delegations thought that the Institution would presumably refuse to release
such documents, indeed would be obliged to do so.
The Presidency proposes the compromise contained in the Annex, making a
distinction between cases in which the protection of third party interests
would necessarily mean refusal and the case of the protection of the interests
of the Institutions, where the latter would have room for discretion.
Regarding the latter point, the issue of the right of access to
preparatory documents relating to Community acts remains open.
The Commission is urging that access should be able to be granted once
a favourable response has been given to a request for documents and with
direct reference to them, provided that the Community act to which they refer
has been adopted definitively.
Some delegations suggested making a distinction between preparatory
documents of a general nature and those in which Member States' positions are
identified.
The Presidency suggests that the right of access should be acknowledged,
but restricted to preparatory documents of a general nature, while recalling
that this would involve a derogation from the confidentiality rule in respect
of preparatory documents, presupposing an amendment to the Council's rules of
procedure.
ANNEX
DRAFT
[Code
of conduct] concerning public access to Council and Commission documents
The
Council and the Commission,
HAVING
REGARD to the Declaration on the Right of Access to Information annexed to the
Final Act of the Treaty on European Union, which emphasizes that transparency
of the decision-making process strengthens the democratic nature of the
Institutions and the public's confidence in the administration,
HAVING
REGARD to the fact that the European Councils in Birmingham and Edinburgh
established a number of principles to promote a Community closer to its
citizens,
HAVING
REGARD to the conclusions of the European Council in Copenhagen, reaffirming
the principle of giving citizens as much access to information as possible and
calling on the Council and the Commission to adopt at an early date the
necessary measures for translating this principle into practice,
CONSIDERING
it desirable to establish by common agreement the principles which
should govern access to Commission and Council documents, to ensure that the
two Institutions conduct themselves consistently, it being understood that it
is for each of them to implement these principles by means of specific [and
binding] [regulatory] provisions,
WHEREAS
such principles are without prejudice to the provisions applicable concerning
public access to information or access to the files of persons having a
qualified interest;
Whereas
such a [code of conduct] will be in addition to their information and
communication policy,
HAVE
AGREED AS FOLLOWS:
General
principle
The
public will have the widest possible access to documents held by the
Commission and the Council.
Scope
"Document"
means any written text, whatever its medium, which contains existing data and
is held by the Council or the Commission.
Processing
of applications
An
application for a document must be made in writing, in a sufficiently precise
manner, and contain, in particular, information which will enable the document
or documents concerned to be identified.
Where
necessary, the Institution will ask the applicant for further details.
The
Institution concerned will inform the applicant promptly and in writing of the
action taken in response to his application.
Where
the document held by the Institution originates from a natural or legal
person, from a Member State, from another Community Institution or body or
from any other organization, the application must be sent direct to the author
of the document.
In
consultation with the applicants, the Institutions will find a fair solution
to deal with repeat applications and/or applications which relate to
voluminous documents.
The
applicant will have access to documents either by consulting them on the spot
or by having a copy sent at his own expense; the fee will not exceed a
reasonable sum.
A
person who obtains a document will not be allowed to reproduce, circulate or
use it [for commercial purposes] [without prior authorization from the
Institution concerned]
Appeal
procedures
Where
an application is not granted, the applicant will be told that he has one
month in which to ask the Institution to reconsider its position.
Otherwise, he will be deemed to have abandoned his original application.
If
such an application is submitted and the Institution concerned confirms its
refusal to release the document, the refusal decision becomes final.
The decision will be notified in writing to the applicant within [two
weeks] and the grounds for it must be given.
Exceptions
The
Institutions will refuse access to a document for one of the following reasons:
–
protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections and
investigations);
–
protection of the individual and of privacy;
–
protection of commercial and industrial secrecy;
–
protection of the Community's financial interests;
–
protection of confidentiality requested by the natural or legal person
that has supplied the information or required by the legislation of the Member
State that supplied the information.
They
may also refuse access in the following case:
–
protection of the Institution's interest with regard to the secrecy of
its proceedings;
However, [once a Community act has been finally adopted,] the
Institution concerned may authorize access to preparatory documents of a
general nature.
Implementation
The
Commission and the Council will take measures to implement the above
provisions before [1 January 1994].