Public access to European Parliament, Council and Commission documents (recast) ***I
Proposal for a regulation of the European Parliament and of the Council
regarding public access to European Parliament, Council and Commission
documents (recast) (COM(2008)0229 – C6-0184/2008 – 2008/0090(COD))
(Codecision
procedure - first reading)
The proposal was amended on 11 March 2009 as follows[1]:
_______________________________________________
Regulation (EC) No .../2009 of the
European Parliament and of the Council regarding public access to European
Parliament, Council and Commission documents (recast)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing
the European Community, and in particular Article 255(2) thereof,
Having regard to the proposal from the
Commission║,
Acting in accordance with the procedure
laid down in Article 251 of the Treaty[2],
Whereas:
(1) A number of
substantive changes are to be made to Regulation (EC)
No 1049/2001 of 30 May 2001 regarding public
access to European Parliament, Council and Commission documents[3]. In the interest of
clarity, that Regulation should be recast.
(2) The
second subparagraph of Article 1 of the Treaty on European Union enshrines the
concept of openness, stating that the Treaty marks a new stage in the process
of creating an ever closer union among the peoples of Europe, in which
decisions are taken as openly as possible and as closely as possible to the
citizen.
(3) Openness
enables citizens to participate more closely in the decision-making process and
guarantees that the administration enjoys greater legitimacy and is more
effective and more accountable to the citizen in a democratic system. Openness
contributes to strengthening the principles of democracy and respect for
fundamental rights as laid down in Article 6 of the EU Treaty and in the
Charter of Fundamental Rights of the European Union.
(4) Transparency
should also strengthen the principles of good administration in the EU
institutions as provided for by Article 41 of the Charter of Fundamental Rights
of the European Union[4]
("the Charter"). Internal procedures should be defined accordingly
and adequate financial and human resources should be made available to put the
principle of openness into practice. [Am 1 ]
▌[Am 2]
▌[Am 3]
(5) The
consultation conducted by the Commission showed broad support from civil
society for the European Parliament's call for the introduction of a genuine
freedom of information instrument applicable to the institutional framework
of the European Union, in
accordance with the right to good administration laid down Article 41 of the
Charter of Fundamental Rights of the European Union. [Am 92]
(6) The
purpose of this Regulation is to give the fullest possible effect to the right
of public access to documents and to lay down the general principles and the limits on the grounds
of public or private interest which govern such access
in accordance with Article 255(2) of the EC
Treaty
and taking into account the experience of
the initial implementation of Regulation (EC) No 1049/2001 and of the
resolution of the European Parliament of 4 April 2006 with recommendations to
the Commission on access to the institutions' texts[5].
This Regulation is without prejudice to existing rights of access to documents
for Member States, judicial authorities or investigative bodies. [Am 4]
(7) In
accordance with Article 255(2) of the EC Treaty, this
Regulation details the general principles and limits on grounds of public or
private interest governing the right of access
to documents with which all other EU rules should comply. [Am 16]
(8) In
accordance with Articles 28(1) and 41(1) of the EU Treaty, the right of access
also applies to documents relating to the common foreign and security policy
and to police and judicial cooperation in criminal matters. ▌[Am 5]
(9) Since
the question of access to documents is not covered by provisions of the Treaty establishing the European
Atomic Energy Community, the European Parliament, the Council and the
Commission should, in accordance with Declaration No 41 attached to the Final
Act of the Treaty of Amsterdam, draw guidance from this Regulation as regards
documents concerning the activities covered by that Treaty.
(10) The
European Parliament and the Council adopted on 6 September 2006 Regulation (EC)
No 1367/2006 on the application of the provisions of the Aarhus Convention on
Access to Information, Public Participation in Decision-Making and Access to
Justice in Environmental Matters to Community institutions and bodies[6].
With regard to access to documents containing environmental information, this
Regulation should be consistent with Regulation (EC) No 1367/2006.
(11) The
Council and the Commission act in their legislative capacity when, by
associating the European Parliament, they adopt, even under delegated powers,
rules of general scope which are legally binding in or for the Member States,
by means of regulations, directives, framework decisions or decisions, on the
basis of the relevant provisions of the Treaties. [Am 6]
(12) In
compliance with the democratic principles outlined in Article 6(1) of the EU
Treaty and the case-law of the Court of Justice on the implementation of
Regulation (EC) No 1049/2001, wider access
should be granted to documents in cases where the institutions are acting in
their legislative capacity, including under
delegated powers. Legal texts
should be drafted in a clear and understandable way[7]
and published in the Official Journal of the European Union; preparatory
documents and all related information, including legal opinions and the
interinstitutional procedure, should be made easily accessible by citizens on
the Internet in a timely manner.
Better
law-making practices, drafting models and techniques as well as technical
solutions to track the life-cycle of preparatory documents and to share them
with the institutions and bodies associated in the procedure should be agreed
by the European Parliament, the Council and the Commission in accordance with
this Regulation and published in the Official Journal of the European Union. [Am 8]
(13) An interinstitutional register
of lobbyists and other interested parties is a natural tool for the promotion
of openness and transparency in the legislative process. [Am 11]
(14) Transparency
in the legislative process is of utmost importance for citizens. Therefore,
institutions should actively disseminate documents, which are part of the
legislative process. Active dissemination of documents should also be
encouraged in other fields.
(15) By way of complementing this
Regulation, the Commission should propose an instrument, to be adopted by the
European Parliament and the Council, on common rules governing the re-use of
information and documents held by the institutions which implements, mutatis
mutandis, the principles outlined in Directive 2003/98/EC of the European
Parliament and of the Council of 17 November 2003 on the re-use of
public-sector information. [Am 22]
(16) Without prejudice to national
legislation on access to documents, in accordance with the principles of loyal
cooperation and legal certainty, when implementing acts of the EU
institutions, the Member States
should not undermine the attainment of the objectives of this Regulation,
including the level of transparency which it seeks to ensure at EU level and
should, in particular, ensure that the Member States' national provisions
implementing EU legislation should give European citizens and other persons
concerned a clear and precise understanding of their rights and obligations and
enable national courts to ensure that those rights and obligations are
respected. [Am 100]
(17) Even
though it is neither the object nor the effect of this Regulation to amend
national legislation on access to documents, it is nevertheless clear that, by
virtue of the principle of loyal cooperation which governs relations between
the institutions and the Member States, the Member States should grant to
their citizens at national level at least the same level of transparency as is
granted at EU level when implementing EU rules.
By
the same token and without prejudice to national parliamentary scrutiny, Member States should take care not to hamper the processing
of EU classified documents. [Am 20]
(18) Documents related to non-
legislative procedures, such as binding measures without general scope or
measures dealing with internal organisation, administrative or budgetary acts,
or non-binding acts of a political nature (such as conclusions, recommendations
or resolutions) should be easily accessible in compliance with the principle of
good administration outlined in Article 41 of the Charter, while at the same
time preserving the effectiveness of the institutions' decision-making process.
For each category of document the institution responsible and, where
appropriate, the other institutions associated should make accessible to
citizens the workflow of the internal procedures to be followed, which organisational units could be in
charge, as well their remit, the deadlines set and the office to be contacted.
Special arrangements may be made with the interested parties in the procedure
even when public access could not be granted; the institutions should duly take
into account the recommendations of the European Ombudsman. [Am 9]
(19) The institutions should agree on
common guidelines as to the way in which to register their internal documents,
to classify them and to archive them for historical needs according to the
principles outlined in this Regulation. Council Regulation (EEC, Euratom) No
354/83 of 1 February 1983 concerning the opening to the public of the historical
archives of the European Economic Community and the European Atomic Energy
Community[8]
should then be repealed. [Am 10]
(20) In
order to develop the activities of the institutions in areas which require a
degree of confidentiality, it is appropriate to establish a comprehensive
security system covering the treatment of EU classified information. The term
"EU classified" should mean any information and material the
unauthorised disclosure of which could cause varying degrees of prejudice to EU
interests, or to one or more of its Member States, whether such information
originates within the EU or is received from Member States, third countries or
international organisations. In accordance with the democratic principles
outlined in Article 6(1) of the EU Treaty, the European Parliament should have
access to EU classified information notably when such access is necessary for
the performance of legislative or non- legislative duties conferred by the
Treaties. [Am 13]
(21) The Community institutions
and bodies should treat personal data in
a fair and transparent way and in full compliance with the rights of data
subjects as defined by 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 and by the case-law of the Court of Justice of the European
Communities ("the Court of Justice"). The institutions should define
their internal procedures, duly taking into account the recommendation of the
European Data Protection Supervisor.
Since
the adoption of Regulation (EC) No 1049/2001 the case-law of the Court of
Justice and decisions and positions adopted by the European Ombudsman and the
European Data Protection Supervisor have clarified the relationship between
that Regulation and Regulation (EC) No 45/2001, to the effect that it is
Regulation (EC) No 1049/2001 which is to be applied to requests for documents
containing personal data and that any application of the exceptions to the
rules allowing access to documents and information for the purpose of
protecting personal data must be based on the need to protect the privacy and
integrity of an individual. [Am 7]
(22) The right of access to public
documents is without prejudice to the right of access to personal data under
Regulation (EC) No 45/2001. When a person requests access to data concerning
him or her, an institution should on its own initiative examine whether that
person is entitled to access under Regulation (EC) No 45/2001. [Am 99]
(23) Article
4 of the Statute for Members of the European Parliament excludes the documents
of Members of the European Parliament from the scope of the definition of
"document" used in this Regulation. These documents, when transmitted
to the institutions outside the legislative process, are still protected by
Article 6 of the MembersŤ Statute. Therefore the interpretation of this
Regulation should take due account of the protection of the political
activities of Members of the European Parliament, as enshrined in the MembersŐ
Statute in order to protect the democratic principles of the European
Union. [Am 116]
(24) Clear
rules should be established regarding the disclosure of documents originating
from the Member States and of documents of third parties which are part of
judicial proceedings files or obtained by the institutions by virtue of
specific powers of investigation conferred upon them by EC law.
(25) The Court of Justice of the
European Communities has specified that the obligation for Member States to be
consulted in relation to requests for access to documents originating from them
does not give them a right of veto, or the right to invoke national laws or
provisions, and that the institution receiving a request may refuse access only
on the grounds of the exceptions in this Regulation. However, there is still a
need to clarify the status of documents originating from third parties in order
to ensure that information relating
to legislative procedures is not shared more broadly with third parties,(
including administrations of third countries) than with Union citizens to whom
the legislation will apply. [Ams 93/110]
(26) In
accordance with Article 255(1) of the EC Treaty, the Commission should
immediately make all documents related to the ongoing international
negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.
[Am 109]
(27) In order to bring about greater
openness in the work of the institutions, access to documents should be granted
by the European Parliament, the Council and the Commission not only to
documents drawn up by the institutions, but also to documents received by them.
A Member State may request the European Parliament, the Commission
or the Council not to communicate to third parties outside the institutions themselves a document originating from that State without its prior agreement. If such a request is not
accepted, the institution which received the request should give the reasons
for refusing it. According to Article 296 of the EC Treaty, no Member State is
obliged to supply information the disclosure of which it considers contrary to
the essential interests of its security. [Am
14]
(28) In
principle, all documents drafted or received by the
institutions and
relating to their activities should be registered and accessible to the public. However, without prejudice to the European
Parliament's scrutiny, access to the entire document or to part of it could be
postponed. [Am 15]
(29) The institutions should ensure
that the development of information technology makes it easier to exercise the
right of access and does not result in a reduction in the amount of information
available to the public. [Am 17]
(30) In
order to ensure that the right of access is fully respected, a two-stage
administrative procedure should apply, with the additional possibility of court
proceedings or complaints to the Ombudsman.
(31) The institutions should in
a consistent and coordinated way inform the public
of the measures
adopted to implement
this Regulation and train their staff to assist citizens exercising their rights
under this Regulation. [Am 19]
▌[Am 21]
(32) In
accordance with Article 255(3) of the EC Treaty and the principles and
rules outlined in this Regulation each institution lays down
specific provisions regarding access to its documents in its rules of
procedure,[9][10][11]
[Am 23]
(33) In
order to ensure the full application of this Regulation to all activities of
the Union, all agencies established by the institutions should apply the
principles laid down in this Regulation. All the other EU
institutions are invited to adopt comparable measures in accordance with
Article 1 of the EU Treaty. [Am 12]
HAVE ADOPTED THIS REGULATION:
TITLE I
General Principles
Article 1
Purpose
The purpose of this Regulation is:
(a) to
define in
accordance with Article 255 of the EC Treaty, the
principles, conditions and limits on grounds of public or private interest
governing the right of access to documents of the European Parliament, Council and Commission (hereinafter referred to
as Çthe institutionsČ) as well as of all the Agencies and bodies created
by those institutions to grant ▌the
widest possible access to such documents; [Am 24]
(b) to
establish rules ensuring the easiest possible exercise of this right;
(c) to
promote transparent and good
administrative practice in the institutions in order to improve access to their documents.[Am
25]
Article 2
Beneficiaries ▌[Am 27]
1. Any
natural or legal person or any association of legal or natural persons shall have a right of access to documents of the institutions,
subject to the principles, conditions and limits defined in this Regulation. [Am
28]
▌[Ams 29, 30, 31, 32, 33 and 34]
2. This
Regulation shall not apply to documents covered by Article 4 of the Statute for
Members of the European Parliament. [AM 114]
3. In
order to ensure that the principle of institutional transparency is fully
applied, free public access to documents concerning infringement mechanisms and
proceedings should be guaranteed. [AM 108]
Article 3
Scope
1. 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.
2. Documents
shall be made accessible to the public either in electronic form, in the
Official Journal of the European Union, or in an official institution's register,
or following a written application.
The documents drawn up or received in the course of a
legislative procedure shall be made directly accessible in accordance with
Article 11.
3. This
Regulation shall be without prejudice to enhanced rights of public access to
documents held by the institutions which might follow from instruments of
international law or acts of the institutions implementing them or by the
Member States' legislation. [Am 35]
Article
4
Definitions
For the purpose of this Regulation:
(a) ÇdocumentČ
shall mean any data or 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; information
contained in electronic storage, processing and
retrieval systems (including external systems used for the institution's
work) shall constitute a document or documents.
An institution that intends to create a new electronic storage system, or to
substantially change an existing system, shall evaluate the likely impact on
the right of access provided for by this Regulation and act so as to promote
the objective of transparency.
The functions
for the retrieval of information stored in electronic storage systems by the
institutions shall be adapted in order to satisfy repeated requests from the
public which cannot be satisfied using the tools currently available for the
exploitation of the system; [Am 36]
(b) Çclassified
documentsČ shall mean documents the disclosure of which could affect the
protection of the essential interests of the European Union or of one or more
of its Member States, notably in public security, defence and military matters,
and which may be partially or totally classified; [Am 37]
(c) 'legislative
documents' shall in principle mean documents drawn up or received in the course
of procedures for the adoption of acts, including under delegated powers, which
are legally binding in or for the Member States and for the adoption of which
the Treaty provides for the intervention or association of the European
Parliament; by way of exception, measures of general scope which according to
the Treaties are adopted by the Council and the Commission without associating
the European Parliament shall also be considered "legislative". [Am
101]
(d) Çnon-
legislative documentsČ shall mean documents drawn up or received in the course
of procedures for the adoption of non-binding acts, such as conclusions, recommendations
or resolutions or acts which are legally binding in or for the Member States,
but which are not of general scope as are the ones cited in point (c); [Am 39]
(e) Çadministrative
documentsČ shall mean documents relating to the institutions' decision-making
process or measures dealing with organisational, administrative or budgetary
matters which are internal to the institution concerned; [Am 40]
(f) ÇarchiveČ
shall mean an institution's tool for managing in a structured way the
registration of all the institution's documents referring to an ongoing or
recently concluded procedure; [Am ]41
(g) Çhistorical
archivesČ shall mean that part of the archives of the institutions which has
been selected, on the terms laid down in point (a), for permanent preservation;
[Am 42]
(h) Çthird
partyČ means any natural or legal person, or any entity outside the institution
concerned, including the Member States, other Community or non-Community
institutions and bodies and third countries.
A
detailed list of all the categories of the acts covered by the definitions in
points (a) to (e) shall be published in the Official Journal of the European
Union and on the Internet sites of the institutions. The institutions shall
also agree and publish their common criteria for archiving. [Am 43]
Article
5
Classified
documents
1. When
grounds of public policy exist under Article 6(1), and without prejudice to
parliamentary scrutiny at EU and national level, an institution shall classify
a document where its disclosure would undermine the protection of the essential
interests of the European Union or of one or more of its Member States.
Information
shall be classified as follows:
(a)
"EU TOP
SECRET": this classification shall be applied only to information and
material the unauthorised disclosure of which could cause exceptionally grave
prejudice to the essential interests of the European Union or of one or more of
its Member States;
(b)
"EU SECRET ":
this classification shall be applied only to information and material the unauthorised
disclosure of which could seriously harm the essential interests of the
European Union or of one or more of its Member States;
(c)
"EU CONFIDENTIAL
": this classification shall be applied to information and material the
unauthorised disclosure of which could harm the essential interests of the
European Union or of one or more of its Member States;
(d)
"EU
RESTRICTED": this classification shall be applied to information and
material the unauthorised disclosure of which could be disadvantageous to the
interests of the European Union or of one or more of its Member States;
2. Information
shall be classified only when necessary.
If possible, the
originators shall specify on classified documents a date or period when the
contents may be downgraded or declassified.
Otherwise, they
shall review the documents at least every five years, in order to ensure that
the original classification remains necessary.
The
classification shall be clearly and correctly indicated, and shall be
maintained only for as long as the information requires protection.
The
responsibility for classifying information and for any subsequent downgrading
or declassification rests solely with the originating institution or that which
received the classified document from a third party or another institution.
3. Without
prejudice to the right of access by other EU institutions, classified documents
shall be released to third parties only with the consent of the originator.
However, the
institution refusing such access shall give reasons for its decision in a
manner which does not harm the interest protected under Article 6(1).
When more than
one institution is involved in the processing of a classified document, the
same ground of classification shall be granted and mediation shall be initiated
if the institutions have a different appreciation of the protection to be
granted.
Documents
relating to legislative procedures shall not be classified; implementing
measures shall be classified before their adoption insofar as the
classification is necessary and aimed at preventing an adverse effect on the
measure itself. International agreements dealing with the sharing of
confidential information concluded on behalf of the European Union or of the
Community cannot give any right to a third country or international
organisation to prevent the European Parliament from having access to
confidential information.
4. Applications
for access to classified documents under the procedures laid down in Articles
17 and 18 shall be handled only by those persons who have a right to acquaint
themselves with those documents. Those persons shall also assess which
references to classified documents could be made in the public register.
5. Classified
documents shall be recorded in an institution's register or released only with
the consent of the originator.
6. An
institution which decides to refuse access to a classified document shall give
the reasons for its decision in a manner which does not harm the interests
protected by the exceptions laid down in Article 6(1).
7. Without
prejudice to national parliamentary scrutiny, Member States shall take
appropriate measures to ensure that, when handling applications for EU
classified documents, the principles set out in this Regulation are respected.
8. The
security rules of the institutions concerning classified documents shall be
made public.
9. The
European Parliament shall have access to classified documents through a special
oversight committee composed of members appointed by its Conference of
Presidents. These Members shall comply with a specific clearance procedure and
solemnly swear not to reveal in any way the content of the information
accessed.
The European
Parliament shall establish in its internal rules and in compliance with the
obligations conferred by the Treaties, security standards and sanctions
equivalent to the ones outlined in the Council and Commission Internal Security
rules. [Am 44]
Article 6 [Am 45]
General exceptions to the right of access
1. Without prejudice to the cases
dealt with in Article 5, the institutions
shall refuse access to a document where disclosure would undermine the
protection of the public interest as regards: [Am 46]
(a) the internal public security of the
European Union or of one or more of its Member States; [Am 47]
(b) defence and military matters;
(c) the
privacy and the integrity of the individual, in accordance with Community
legislation regarding the protection of personal data, in particular the rules
applicable to the institutions as laid down in Article 286 of the EC Treaty, as
well as the principle of transparent and good administrative practice outlined
in Article 1(c) of this Regulation; [Am 49]
(d) international relations;
(e) the financial, monetary or economic policy of the Community or a
Member State;
(f) the
environment, such as breeding sites of rare species.
2. The
institutions shall refuse access to a document where disclosure would undermine
the protection of public or private
interests linked to: [Am 48]
(a) commercial interests of a natural or legal person;
(b) intellectual
property rights;
(c) legal
advice and court proceedings, except for legal advice in connection with
procedures leading to a legislative act or a non-legislative act of general
application; [Am 50]
(d) the purpose of inspections, investigations and audits;
(e) the objectivity and impartiality of public procurement procedures until a decision has been taken by the contracting
institution, or of a Selection Board in proceedings leading to the recruitment
of staff until a decision has been taken by appointing authority. [Am 51]
▌[Am 52]
3. The
exceptions under paragraph (2) shall apply unless there is an overriding public
interest in disclosure. A strong public
interest in disclosure exists where
the requested documents have been drawn up or received in the course of
procedures for the adoption of EU legislative acts or of non-legislative acts
of general application. When balancing the public interest in disclosure,
special weight shall be given to the fact that the requested documents relate to the protection of fundamental
rights or the right to live in a healthy environment. [Am
53]
4. The
definition of an overriding public interest in disclosure shall take due
account of the protection of the political activity and independence of Members
of the European Parliament, in particular with regard to Article 6(2) of
the MembersŐ Statute. [AM 115]
5. Documents
the disclosure of which would pose a risk to environmental protection values,
such as the breeding sites of rare species, shall only be disclosed in
conformity with Regulation (EC) No 1367/2006 of the European Parliament and of
the Council of 6 September 2006 on the application of the Aarhus Convention on
Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters to Community institutions and bodies[12].
[Am 54]
6. Personal data shall not be disclosed if such disclosure would
harm the privacy or the integrity of the person concerned. Such harm shall not
be deemed to be caused:
– if
the data relate solely to the professional activities of the person concerned
unless, given the particular circumstances, there is reason to assume that
disclosure would adversely affect that person;
– if
the data relate solely to a public person unless, given the particular
circumstances, there is reason to assume that disclosure would adversely affect
that person or other persons connected with him or her;
– if
the data have already been published with the consent of the person concerned.
Personal data shall nevertheless be disclosed if an overriding
public interest requires disclosure. In such a case, the institution or body
concerned shall be required to specify the public interest. It shall give
reasons why, in the specific case, the public interest outweighs the interests
of the person concerned.
Where an institution or body refuses access to a document on
the basis of paragraph 1, it shall consider whether it is possible to grant
partial access to that document. [Ams 90
+ 96 + 102]
7. If
only parts of the requested document are covered by any of the exceptions, the
remaining parts of the document shall be released.
8. The
exceptions as laid down in this Article shall not apply to documents
transmitted within the framework of procedures leading to a legislative act or
a non-legislative act of general application. The exceptions shall only apply for the period during which protection is justified
on the basis of the content of the document. The exceptions may apply for a
maximum period of 30 years. In the case of documents covered by the exception relating to privacy and the integrity of the individual, the exception may, if
necessary, continue to apply after this period. [Am 55]
9 The
exceptions as laid down in this Article shall not be interpreted as referring
to information of public interest relating to the beneficiaries of European
Union funds that is available within the framework of the financial
transparency system. [Am 56]
Article 7 [Am 57]
Consultation of third parties
1. As
regards third-party documents, they shall be disclosed by the institutions without consulting the originator if it is
clear that none of the exceptions in this Regulation are applicable. A third party shall be consulted if that party has requested, when
handing in the document, that it be
treated in a specific way, with a view to
assessing whether an exception provided for in this Regulation is applicable. Documents provided to the institutions for the
purpose of influencing policy-making should be made public. [Am 58]
2. Where an application concerns a document originating from a Member
State:
– which
has not been transmitted by that Member State in its capacity as a member of
the Council, or
– which
does not concern information submitted to the Commission concerning the
implementation of EC policies and legislation,
the authorities of that Member State shall be consulted. The
institution holding the document shall disclose it unless the Member State
gives reasons for withholding it, based on the exceptions referred to in
Article 4 or in equivalent provisions of its own legislation, or objects on the basis of Article 296(1)(a) of the EC Treaty that the disclosure would be contrary to its essential
security interests. The institution shall
assess the adequacy of reasons given by the Member State. [Am 91]
3. Without
prejudice to national parliamentary
scrutiny, where a Member State receives a
request for a document in its possession, which originates from an institution,
unless it is clear that the document shall or shall not be disclosed, the
Member State shall consult with the institution concerned in order to take a
decision that does not jeopardise the objectives of this Regulation. The Member
State may instead refer the request to the institution. [Am 60]
Article 8
Reproduction of documents
This Regulation shall be without prejudice to any existing rules on
copyright which may limit a third party's right to ▌reproduce or exploit released documents. [Am 82]
Article 9
Principle of good administration
The
institutions shall on the basis of the code of good administrative behaviour
adopt and publish general guidelines on the scope of the obligations of
confidentiality and professional secrecy set out in Article 287 of the EC
Treaty, the obligations arising from sound and transparent administration and
the protection of personal data in accordance with Regulation (EC) 45/2001.
These guidelines shall also define the sanctions applicable in the event of
failure to comply with this Regulation in accordance with the Staff Regulations
of Officials of the European Communities, the Conditions of Employment of other
servants of the European Communities and in the institutions' internal rules. [Am 107]
TITLE II
Legislative and Non-legislative
Transparency
Article
10
Legislative
Transparency
1. In
compliance with the democratic principles outlined in Article 6 (1) of the EU
Treaty and with the case-law of the
Court of Justice on the implementation of Regulation (EC) No 1049/2001,
institutions acting in their legislative capacity, including under delegated
powers, shall grant the widest
possible access to their activities.
2. Documents
relating to their legislative programmes, preliminary civil society
consultations, impact assessments and any other preparatory documents linked to
a legislative procedure shall be accessible on a user-friendly
interinstitutional site and published in a special series of the Official
Journal of the European Union.
3. Legislative
proposals as well other EU legal texts shall be drafted in a clear and
understandable way and the institutions shall agree common drafting guidelines
and models improving legal certainty in accordance with the relevant case-law
of the Court of Justice.
4. During
the legislative procedure, each institution or body associated in the
decision-making process shall publish
its preparatory documents and all related information, including legal
opinions, in a special series of the Official Journal of the European Union as
well on a common Internet site reproducing the lifecycle of the procedure
concerned.
5. Any
initiative or documents provided by any interested parties with a view to
influencing the decision-making process in any way shall be made public.
6. Once
adopted, legislative acts shall be published in the Official Journal of the
European Union as provided for by Article 12.
7. By
virtue of the principle of loyal cooperation which governs relations between
the institutions and the Member States, in order not to undermine the attainment
of the objectives of this Regulation, the Member States shall seek to ensure
that an equivalent level of transparency is granted in relation to national
measures implementing acts of the institutions of the European Union, in
particular by clearly publishing the references of the national measures. The
objective is to give citizens a clear and precise understanding of their rights
and obligations deriving from specific EU rules and enable national courts to
ensure that those rights and obligations are respected in accordance with the
principles of legal certainty and the protection of individual.[Am 103]
Article 11
Publication in the Official Journal
1. In
accordance with the principles outlined in this Regulation, the institutions
shall agree on the structure and presentation of the Official Journal of the
European Union by taking into account the pre-existing interinstitutional
agreement.
In addition to
the acts referred to in Article 254(1) and (2) of the EC Treaty and the first
paragraph of Article 163 of the Euratom Treaty, the following documents shall,
subject to Article 6 of this Regulation,
be published in the Official Journal:
▌
(a) common
positions adopted by the Council in accordance with the procedures referred to
in Articles 251 and 252 of the EC Treaty and the reasons underlying those
common positions, as well as the European Parliament's positions in these
procedures;
(b) Directives
other than those referred to in Article 254(1) and (2) of the EC Treaty,
decisions other than those referred to in Article 254(1) of the EC Treaty,
recommendations and opinions;
▌
(c) conventions
signed between Member States on the basis of Article 293 of the EC Treaty;
(d) international
agreements concluded by the Community or in accordance with Article 24 of the
EU Treaty.
▌
(e) common
positions referred to in Article 34(2) of the EU Treaty;
(f) framework
decisions and decisions referred to in Article 34(2) of the EU Treaty;
(g) conventions
established by the Council in accordance with Article 34(2) of the EU Treaty;
2. Other
documents to be published in the Official Journal of the European Union shall
be determined by a joint decision of the European Parliament and of the
Council, on a proposal by the Management Committee of the Publication Office of
the EU[13].
[Ams 74 + 105]
Article 12
Administrative transparency practice in the institutions [Am 77]
1. The
institutions shall develop good administrative practices in order to facilitate
the exercise of the right of access guaranteed by this Regulation. The
institutions shall organise and maintain the information in their possession in
such a way that the public may be granted access to the information without
additional effort. [Am 78]
2. In
order to ensure that the principles of transparency and good administration are
effectively applied, the institutions concerned shall agree on common
implementing rules and procedures for the presentation, classification,
declassification, registration and dissemination of documents.
In order to facilitate a genuine debate among the players
involved in the decision-making process and without prejudice to the principle
of transparency, the institutions shall make clear to citizens if and when,
during the specific phases of the decision-making process, direct access to
documents may not be granted. These limitations shall not apply once that decision
has been taken. [Am 79]
3. The
institutions shall inform citizens, in a fair and transparent way, about their
organisational chart by indicating the remit of their internal units, the
internal workflow and indicative deadlines of the procedures falling within
their remit, to which services may citizens refer to obtain support,
information or administrative redress. [Am 80]
4. The
institutions shall establish an interinstitutional Article 255 committee to examine and exchange best practice, identify access and usability barriers and
unpublished data sources, address possible conflicts, promote interoperability, re-use
and merger of registers, standardise document coding through a European
standards organisation, create a single EU portal to ensure access to all EU
documents and discuss future developments on
public access to documents. [Am 81]
Article
13
Financial
transparency
Information relating to the EU budget, its
implementation and beneficiaries of EU funds and grants shall be public
and accessible to citizens.
Such information shall also be accessible via a specific
website and database, searchable on the basis of the above information,
dealing with financial transparency in the EU. [AM 85]
TITLE III
Method of access
Article 14
Direct access to documents
1. The
institutions shall as far as possible make documents directly accessible to the
public in electronic form or through a register in accordance with the rules of
the institution concerned. [Am 71]
2. The
institutions shall make all documents directly accessible to the public in
electronic form or trough a register, particularly those drawn up or received in the
course of procedures for the adoption of EU legislative acts or non-legislative
acts of general application. ▌ [Am 72]
3. Where
possible, other documents, notably documents relating to the development of
policy or strategy, shall be made directly accessible in electronic form.
4. Where
direct access is not given through the register, the register shall as far as
possible indicate where the document is located.
5. The institutions shall
establish a common interface for their registers of documents, and shall in particular ensure a single point of
access for direct access to documents drawn up or received in the course of procedures
for the adoption of legislative acts or non-legislative acts of general
application. [Am 73]
Article
15
Registers
1. To
make citizens' rights under this Regulation effective, each institution shall
provide public access to a register of documents. Access to the register should
be provided in electronic form. References to documents shall be recorded in
the register without delay.
2. For
each document the register shall contain a reference number (including, where
applicable, the interinstitutional reference), the subject matter and/or a
short description of the content of the document and the date on which it was
received or drawn up and recorded in the register. References shall be made in
a manner which does not undermine protection of the interests in Article 6.
3. Without
prejudice to the internal rules of the institutions, the register or system of
registers (in the case of multiple registers for the same institution) of each
institution shall in particular contain references to:
– incoming
and outgoing documents, as well as the official mail of the institution where
such mail falls within the definition set out in Article 4(a),
– agendas
and summaries of meetings and documents prepared before meetings for
circulation, as well as other documents circulated during meetings.
Each
institution shall:
– by
...*, adopt and publish internal rules
concerning the registration of documents,
– by
... **, ensure that its register is fully
operational. [Am 70]
Article 16
Applications
1. Applications
for access to a document shall be made in any written form, including
electronic form, in one of the languages referred to in Article 314 of the EC
Treaty and in a sufficiently precise manner to enable the institution to
identify the document. The applicant is not obliged to state reasons for the
application.
2. If
an application is not sufficiently precise the institution shall within
15 working days ask the applicant to clarify
the application and shall assist the applicant in doing so, for example, by
providing information on the use of the public registers of
documents.▌ [Am 62]
3. In
the event of an application relating to a very long document or to a very large
number of documents, the institution concerned may confer with the applicant informally,
with a view to finding a fair and practical solution.
4. The
institutions shall provide information and assistance to citizens on how and
where applications for access to documents can be made.
Article 17
Processing
of initial applications
1. An
application for access to a document shall be handled promptly. An
acknowledgement of receipt shall be sent to the applicant. Within a
maximum of 15 working days from registration of
the application, the institution shall either grant access to the document
requested and provide access in accordance with Article 10 within that period
or, in a written reply, state the reasons for the total or partial refusal and
inform the applicant of his or her right to make a confirmatory application in
accordance with paragraph 4 of this Article. [Am 63]
2. In
exceptional cases, for example in the event of an application relating to a
very long document or to a very large number of documents, the time-limit
provided for in paragraph 1 may be extended by a maximum of 15 working days, provided that the applicant is notified in advance
and that detailed reasons are given. [Am 64]
3. In
the event of a total or partial refusal, the applicant may, within 15 working
days of receiving the institution's reply, either make a confirmatory
application asking the institution to reconsider its position or, where
the applicant calls into question whether any actual harm will be caused to the
relevant interests and/or argues that there is an overriding interest in
disclosure, the applicant may request the European Ombudsman to give an
independent and objective view on the question of harm and/or overriding public
interest.
While waiting for the delivery of the European Ombudsman'
opinion, the time-limit provided for in paragraph 1 shall be suspended for a
maximum of 30 working days.
Following delivery of the European Ombudsman's opinion, or at
the latest at the end of a period of 30 working days, the applicant may, within
a maximum of 15 working days, make a confirmatory application asking the
institution to reconsider its position. [Am 104]
4. Failure
by the institution to reply within the prescribed time-limit shall entitle the
applicant to make a confirmatory application.
Article 18
Processing of confirmatory
applications
1. A
confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the
institution shall either grant access to the document requested and provide
access in accordance with Article 10 within that period or, in a written reply,
state the reasons for the total or partial refusal. In the event of a total or
partial refusal, the institution shall inform the applicant of the remedies
open to him or her. [Am 66]
2. In
exceptional cases, for example in the event of an application relating to a
very long document or to a very large number of documents, the time limit
provided for in paragraph 1 may be extended by a maximum of 15 working days, provided that the applicant is notified in advance
and that detailed reasons are given. [Am 67]
3. In
the event of a total or partial refusal, the applicant may bring proceedings
before the Court of First Instance against the institution and/or make a
complaint to the European Ombudsman, under the conditions laid down in Articles
230 and 195 of the EC Treaty, respectively.
4. Failure
by the institution to reply within the prescribed time limit shall be
considered as a negative reply and shall entitle the applicant to institute
court proceedings against the institution and/or make a complaint to the
Ombudsman, under the relevant provisions of the EC Treaty.
▌[Am 68]
Article 19
Access following an application
1. The
applicant shall have access to documents either by consulting them on the spot
or by receiving a copy, including, where available, an electronic copy,
according to the applicant's preference.
2. If
a document is publicly
available and is easily accessible to the applicant,
the institution may fulfil its obligation of granting access to documents by
informing the applicant how to obtain the requested document.
3. Documents
shall be supplied in an existing version and format (including electronically
or in an alternative format such as Braille, large print or tape) with full
regard to the applicant's preference.
4. The cost of producing and sending copies may be charged to the
applicant. This charge shall not exceed the real cost of producing and sending
the copies. Consultation on the spot, copies of less than twenty A4 pages and direct access in electronic form or through the
register shall be free of charge. In the case of printouts or documents
in electronic format based on information contained in electronic storage,
processing and retrieval systems, the actual cost of searching for and
retrieving the document or documents may also be charged to the applicant. No
additional charge shall be made if the institution has already produced the
document or documents concerned. The applicant shall be informed in advance of
the amount and method of calculating any charge. [Am 69]
5. This
Regulation shall not derogate from specific modalities governing access laid
down in EC or national law, such as the payment of a fee.
Article 20
Information
1. Each
institution shall take the requisite measures to inform the public of the
rights they enjoy under this Regulation.
2. The
Member States shall cooperate with the institutions in providing information to
the citizens.
Article 21
Information Officer
1. Each
directorate-general within each institution shall appoint an Information
Officer who shall be responsible for ensuring compliance with the provisions of
this Regulation and good administrative practice within that
directorate-general.
2. The
Information Officer shall determine which information it is expedient to give
the public concerning:
a) the
implementation of this Regulation;
b) good practice;
and shall ensure the dissemination of that information in an
appropriate form and manner.
3. The
Information Officer shall assess whether the services within his or her
directorate-general follow good practice.
4. The
Information Officer may redirect the person who requires the information to
another directorate if the information in question falls outside its remit and
within the remit of a different directorate within the same institution,
provided that he or she is in possession of such information. [Am 106]
TITLE
IV
Final
provisions
Article 22
Reports
1. Each institution shall publish annually a report for the preceding
year including the number of cases in which the institution refused to grant
access to documents, the reasons for such refusals and the number of sensitive
documents not recorded in the register.
2. At
the latest by ...*, the Commission shall publish a report on the application of
the principles of this Regulation and shall make recommendations including, if
appropriate, proposals for the revision of this Regulation which are
necessitated by changes in the current situation and an action programme of
measures to be taken by the institutions. [Am 83]
Article 23
Repeal
Regulation (EC) No
1049/2001
is repealed with effect from [...].
References to the repealed Regulation shall
be construed as references to this Regulation and shall be read in accordance
with the correlation table in the Annex.
Article 24
Entry into force
This Regulation
shall enter into force on the twentieth day following that of its publication
in the Official Journal of the European Union.
This Regulation shall be binding
in its entirety and directly applicable in all Member States.
Done at,
For the
European Parliament For
the Council
The
President The
President
ANNEX
Regulation
1049/2001 |
This
Regulation |
Article 1 |
Article 1 |
Article 2(1) |
Article 2(1) |
Article 2(2) |
- |
Article 2(3) |
Article 2(2) |
Article 2(4) |
Article 2(3) |
Article 2(5) |
Article 2(4) |
- |
Article 2(5) |
- |
Article 2(6) |
Article 2(6) |
Article 2(7) |
Article 3 |
Article 3 |
Article 4(1) (a) |
Article 4(1) |
Article 4(1) (b) |
Article 4(5) |
Article 4(2) |
Article 4(2) |
Article 4(3) |
Article 4(3) |
Article 4(4) |
Article 5(1) |
Article 4(5) |
Article 5(2) |
- |
Article 4(4) |
Article 4(6) |
Article 4(6) |
Article 4(7) |
Article 4(7) |
Article 5 |
Article 5(3) |
Article 6 |
Article 6 |
Article 7 |
Article 7 |
Article 8 |
Article 8 |
Article 9 |
Article 9 |
Article 10 |
Article 10 |
Article 11 |
Article 11 |
Article 12 |
Article 12 |
Article 13 |
Article 13 |
Article 14 |
Article 14 |
Article 15 |
Article 15 |
Article 16 |
Article 16 |
Article 17(1) |
Article 17 |
Article 17(2) |
- |
Article 18 |
- |
- |
Article 18 |
- |
Article 19 |
- |
Annex |
[1] The matter was then
referred back to committee pursuant to Rule 53(2) (A6-0077/2009).
[2] OJ
C , , p. .
[3] OJ
L 145, 31.5.2001, p. 43.
[4] OJ C 303,
14.12.2007, p. 1.
[5] OJ
C 293 E, 2.12.2006, p. 151.
[6] OJ
L 264 , 25.9.2006, p. 13.
[7] Interinstitutional
Agreement of 22 December 1998 on common guidelines for the quality of drafting
of Community legislation (OJ C 73, 17.3. 1999, p. 1).
[8] OJ
L 43, 15.2.1983, p. 1.
[9] OJ
L 340, 31.12.1993, p. 43. ║
[10] OJ L 46, 18.2.1994, p. 58. ║
[11] OJ
L 263, 25.9.1997, p. 27.
[12] OJ
L 264, 25.9.2006, p. 13.
[13] See
Article 7 of SEC (2008)2109.
* Six
months from the date of entry into force of this Regulation.
** One
year from the date of entry into force of this Regulation.
[14] To be
updated.