2.4 The EU Institutions

The Directive applies to the member states, not to the EU institutions. Although at various times the Commission has considered developing measures to extend the coverage of the Directive to the institutions4, no such proposals have yet been launched. Instead, the Commission and the Council have adopted general rules for access to their documents.

The measures adopted by the Commission and the Council emerge from the Treaty of Maastricht. Annexed to the Treaty of Maastricht is a declaration on the right of access to information. In it, the member states urged the Commission to present a report during 1993 on measures "to improve public access to information available to the institutions5".

The Commission's report and a related series of communications led to the adoption by the Commission and the Council of a Code of Conduct in late 1993, followed shortly thereafter by the adoption of separate decisions of the two bodies on the implementation of the Code6.

2.4.1 The Commission

The Commission Decision of 8 February 1994 adopts the Code of Conduct agreed with the Council (art. 1). The two documents must be read together.

Access to Commission documents is open to anyone. A person requesting information also does not have to show an interest in the information requested. These provisions are derived from the general principle stated in the Code that the "public will have the widest possible access to documents held by the Commission and the Council7".

A document is "any written text, whatever its medium, which contains existing data and is held" by one of the two institutions (Code, second paragraph).

The Code limits access to documents produced by the Commission or the Council itself. If the requested document "was written by a natural or legal person, a Member State, another Community institution or body of any other national or international body", the request must be directed to the source of the document.

An application must be in writing, in any of the official languages of the Community8, and addressed to the relevant department of the Commission or to the Commission offices in the member states or third countries. Consultation on the spot or receipt of a copy are both possible. In keeping with usual practice, a reply and any document supplied is to be made in the language used in the request.

The Code establishes, in broad terms, a set of exceptions which the Commission Decision has adopted. These exceptions cover:

  • the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations);
  • the protection of the individual and of privacy;
  • the protection of commercial and industrial secrecy;
  • the protection of confidentiality as requested by the natural or legal persons that supplied the information or as required by the legislation of the Member State that supplied the information.

The Commission and the Council may also refuse access in order to protect the institution's interest in the confidentiality of its proceedings.

The rules require a response, in writing, within one month. If the request is to be refused, the applicant must at the same time be informed that "he has one month in which to apply to the Secretary-General of the Commission for review of the intention to refuse access".

Printed documents of less than 30 pages are to be provided free of charge. For longer documents, the Commission may charge a fee of 10 ECU plus 0.036 ECU per page for copies.

In order to assist the Commission services with the implementation and application of the new Commission rules, the Secretary-General circulated a guide on access to Commission documents. The Guide reminds the Commission's officials that the rules are meant to provide the widest possible access to Commission documents, that requests are to be considered on a case by case basis, and urges the Commission's staff to apply the rules in a "genuine spirit of openness" (Preface). The Guide anticipates a number of questions that were expected to arise and offers guidance on handling and responding to requests, interpreting the exceptions and placing the Decision in relation to other Commission rules concerning confidentiality.

The public has made relatively little formal use of the right of access.

According to figures from the Commission, approximately 500 requests were made in the first two years after the Decision took effect. Some 20% of these concerned requests for environmental information. This represents the largest single category of requests. No breakdown by subject matter is available to indicate how many requests in each category were granted or denied.

2.4.2 The Council

Following its agreement on the Code of Conduct with the Commission of 6 December 1993, the Council adopted its own Decision on access to documents on 20 December 19939.
Council statistics indicate that of the 142 requests for documents made in 1994 and 1995, some 10% concerned environmental information.

No specified indication is available of whether the environmental requests have been granted or denied. The reason cited most often for the denial of a request is the protection of the confidentiality of the Council's deliberations10.

2.4.3 The Parliament

The European Parliament has long been a proponent of greater transparency in the workings of the institutions of the Community. The Parliament's own rules on access to documents reflect this approach. In general, the Parliament's documents are available to the public.

A "document" of the European Parliament includes both official documents prepared or considered by the Parliament in the course of its work as well as studies, brochures and other material issued by the Parliament's Secretariat-General.

Official documents are understood to include all the documents which have been given a session number. These include reports, including plenary voting records, draft resolutions and recommendations.

The official documents are as a rule to be provided free unless a price appears on the document's cover.

4 See, for example, the answer of Environment Commissioner Ripa di Meana to parliamentary question no. 2712/90, O.J. No. C 130, 21.5.91, p. 29 indicating the intention to develop a proposal to apply to environmental information held by the Commission and the Commission's Legislative Program for 1994 declaring its intention to put forward a proposal to extend the application of the Directive's provisions to the Community institutions, EC Bulletin, Supp. 1/94, p. 18.

5 Declaration (No. 17) on the right of access to information, annexed to the Final Act of the Treaty on European Union, O.J. No. C 191, 29.7.92, p. 101.

6 Declaration 93/730/EC on a Code of Conduct concerning public access to Council and Commission documents and Council Decision 93/731/EC of 20 December 1993 on public access to Council documents, O.J. L 340, 31.12.93, p. 43; Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents, O.J. No. L 46, 18.2.94, p. 58.

7 See European Commission, Access to Commission Documents: User's Guide (Luxembourg: Office for Official Publications, 1994), p. 9.

8 User's Guide, see note 7.

9 Council Decision of 20 December 1993, O.J. No. L 340, 31.12.93, p. 43.

10 The data in this paragraph are taken from the Report by the Secretary General on the Implementation of the Council Decision on Public Access to Council Documents (July 1996) on the first two years of experience with the Code of Conduct.



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