THE TRANSLATORS, TYPISTS AND REVISERS INITIALS ARE NOW TYPED IN THE FOOTER, ALT+F FOOTER YOU WILL SEE THERE IS A TYPINGMARK JUST TO THE RIGHT OF CENTRE FOR THESE. THE PAGE NUMBERS ARE NOW AT THE BOTTOM RIGHT HAND CORNER AND WITHOUT TIRETS.EUROPEAN COMMUNITIES                                                     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.

 

                                                                                                              

 

                                                                          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].