DIPARTIMENTO DI SCIENZE POLITICHE
CORSO DI LAUREA MAGISTRALE IN STUDI INTRNAZIONALI
ELABORATO FINALE
Right of access to documents:
transparency with exceptions
CANDIDATO
RELATORE
Elisa Consoli
Chiar.ma Prof.ssa Sara Poli
2
INDEX
Introduction
………...……….pg.5Part I
1. The legal framework of the right of access to documents within the EU ant the Council of Europe...pg.11 1.1. The first moves towards the right of access to information: from the
Maastricht Treaty to the Codes of Conduct of the Commission, the
Parliament and the Council...pg.12 1.2. The right of access in the Amsterdam Treaty...pg.15 1.3. The right of access as a fundamental right in the Charter of Fundamental
Rights of the European Union...pg.17 1.4. Article 15 of the Treaty on the Functioning of the European Union and the
principle of openness in the decision-making process...pg.19 1.5. Regulation (EC) No 1049/2001 of the European Parliament and of the
Council...pg.22 1.6. The Council of Europe Convention on Access to Official
Documents...pg.29 2. The Exceptions to the right of access to documents...pg.35
2.1. The Member States’ domestic legislations...pg.36 2.2. The institution’s Codes of Conduct...pg.37 2.3. Regulation (EC) No 1049/2001 of the European Parliament
and of the Council...pg.39 2.4. The Council of Europe Convention on Access to Official
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Part II
3. The European Court of Justice’s case-law on the exceptions to access to information...pg.52 3.1. The protection of the international relations and the standard of
review...pg.52
3.1.1. The contested decision...pg.53 3.1.2. The proceeding before the General Court ...pg.53 3.1.3. The proceeding before the Court of Justice...pg.55 3.1.4. Conclusions...pg.58
3.2. The protection of privacy and of the individual...pg.59
3.2.1. The contested decision...pg.59 3.2.2. The proceeding before the General Court...pg.62 3.2.3. Conclusions...pg.66
3.3. The protection of the commercial interests of a natural or legal
person...pg.68
3.3.1. The contested decision...pg.68 3.3.2. The proceeding before the General Court...pg.69 3.3.3. Conclusions...pg.71
3.4. Sensitive information v. sensitive document...pg.72
3.4.1. The contested decision...pg.73 3.4.2. The Proceeding before the General Court ...pg.74 3.4.3. The proceeding before the Court of Justice ...pg.75 3.4.4. Conclusions...pg.77
3.5. The general presumption of non disclosure of documents relating to inspections, investigation and audits...pg.78
3.5.1. The contested decision...pg.78 3.5.2. The proceeding before the General Court...pg.80 3.5.3. Conclusions...pg.81
3.6. The protection of legal advice...pg.84
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3.6.2. The proceeding before the General Court...pg.86 3.6.3. Conclusions...pg.87
Conclusions...pg.89
Cited case-law
...pg.94Cited Acts
...pg.98Bibliography...pg.103
Acknowledgments
...pg.1055
INTRODUCTION
Purpose of the present work is to examine the right of access to public documents in the European Union, given its important role in the relations between the European citizens and the institutions of the Union. First of all, it is necessary to underline that this right falls into the much wider field of the freedom of information, which was first stated in the Universal
Declaration of Human Rights (UDHR), proclaimed by the United Nations
General Assembly in Paris in 1948, in Article 19:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers
According to this article, everyone has the right to seek, hence request, information, which is one of the fundamental aspects of the right of access to documents: there are, indeed, exceptions limiting the actual access to some kinds of documents, but there are, in practicality, no exceptions regarding the requests for such access.
The Universal Declaration is not a binding treaty, but rather a recommendatory resolution adopted by the General Assembly of the United Nations; nonetheless, time and universal acceptance rose most of the
Universal Declaration, including Article 19, to customary international law,
making it, therefore, binding on all states.
The European process towards the right of access to documents started on November 4th 1950, when the European Convention on Human Rights was
signed in Rome. Article 10 of foresaid Convention, establishes the Freedom
of information as follows:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from
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requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The European Court for Human Rights, in Leander v Sweden, pointed out that Article 10 does not “confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual”1: Article 10 of the convention does not grant public access to
documents and neither it imposes to public authorities documents enclosure. However, the article establishes that the permissible exceptions to the right of freedom of information aim to protect not only national security and territorial integrity, but also confidentiality, health and morals, and reputation and rights of others.
In this work I will be focusing on the issues of transparency, openness and participation from the point of view of the right of access to documents and on their development within the European Union.
According to the Cambridge Dictionary, transparency is “the quality of being done in an open way without secrets”, and, more specifically, according to the Anti-corruption Glossary of the website Transparency International, it is the “characteristic of governments, companies, organisations and individuals of being open in the clear disclosure of information, rules, plans, processes and actions”. In the view of the Council of Europe, “transparency
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of public authorities is a key feature of good governance and an indicator of whether or not a society is genuinely democratic and pluralist”2. Moreover,
as stated by the Court of First Instance in its judgment in the case Kuijer v
Council, “the principle of transparency is intended to secure a more
significant role for citizens in the decision-making process and to ensure that the administration acts with greater propriety, efficiency and responsibility vis-à-vis the citizens in a democratic system”3. Therefore,
transparency is not an aim, but a means in order to ensure the participation of the citizens and the accountability of the public administration itself through good governance. The concept of transparency has been gaining more and more importance in the last years: it is a quite common opinion that transparency is at the foundation of a good governance, since it is synonym of an honest and trustworthy governance, which is what nowadays citizens seem to need the most. On this aspect the European Court of Justice, in Sweden and Turco v Council, decided in 2008, pointed out that “a lack of information and debate is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole”4.
As underlined by Henri Labayle in his note Openness, transparency and
access to documents and information in the European Union for the European Parliament, “the principles of transparency and good governance have constitutional implications for the Union’s institutions, and the Charter of Fundamental Rights of the European Union establishes them as a fundamental rights”5. When talking about transparency, another important
principle comes to mind: the openness of the administration, which “expresses the precepts of good governance and, as such, is instrumental to the enjoyment of the right to participate in the democratic life of the
2 Explanatory Report to the Council of Europe Convention on Access to Official Documents (Council of
Europe Treaty Series - No. 205), Tromsø, 18.06.2009, Commentary on the provisions of the Convention, Preamble.
3 Court of First Instance (Fourth Chamber), Case T-211/00, Kuijer v Council (EU:T:2002:30), 7 February
2002, Par. 52.
4
Court of Justice, Case C-39/05 P and C-52/05 P, Sweden and Turco v Council (EU:T:2008:374),17 July 2008, Par. 59.
5
Openness, transparency and access to documents and information in the European Union, European Parliament Note, Directorate-General For Internal Policies, Policy Department C: Citizens' Rights And Constitutional Affairs; Civil Liberties, Justice And Home Affairs, 2013, Executive Summary.
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Union”6. Furthermore, 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”; and it “contributes to strengthening the principles of democracy and respect for fundamental rights”7. The
relationship between the fundamental principles of transparency and openness is yet today unclear: these two terms are very often interchanged when expressing the opposite concept to “opaqueness” or “secretiveness”. In order to guarantee the level of transparency necessary to ensure participation and accountability, it is to the institutions to grant the widest access to public documents possible. Certainly, though this access must have some limits: completely unrestricted access to all the public documents might cause harm both to public and private interests. Therefore the agreements that today regulate the procedure for the access to documents also lay down detailed provisions about the exceptions to the right.
Both the obligations of the institutions and the exceptions will be examined herein. In Part I of the work I will present the legal framework of the right of access to documents, starting from the provisions establishing it and moving on to the exceptions. In the Part II, I will examine in depth the actual application of this right through six legal cases brought before the Court of Justice of the European Union. The choice of these cases has been steered by the topics developed by the Court in the judgments: it goes without saying that the judgments not only provide a better understanding of the actual application of the exceptions to the right of access, but they moreover show the development of the Court’s judicial attitude towards the exceptions regime. An example could be the Court’s attitude towards the standard of review of the reasons given by the institution concerned when denying access relying on the protection of a public interest: the Court has moved from an initial mild and maybe summary standard of review to a
6 Alberto Alemanno, Unpacking the principle of openness in the EU law: transparency, participation and
democracy, Introduction, European Law Review, 2014 (E.L.Rev. 2014, 39 (1), 72-90).
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Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, Recital (2).
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more in-depth analysis, showing a more consistent and strict approach. Another of the topics that brought me to choose these judgments is the application of a general presumption of non-disclosure when processing requests for documents that relate to inspections, investigations and audits. The Court has expressed understanding for the concerns shown by the institutions requested to individually analyse the tens of thousands of documents contained in certain files, but it has also underlined that the institution may avoid carrying out a concrete, individual examination “only after it has genuinely investigated all other conceivable options”8, clarifying
that the possibility of not examining all documents was to be invoked only in extremely rare cases9.
The European Court of Justice’s case-law shows the great importance given by the Court to the right of access to documents: the Court never fails to underline that the exceptions to the right cannot become the rule, but they only represent special cases where the rule needs to be bent in order to protect interests not more important, but rather more delicate, than the right of access to documents.
8 Court of First Instance, Case T-2/03, Verein für Konsumenteninformation v Commission
(EU:T:2005:125), 13 April 2005, Par. 115.
9
See, on this point, Päivi Leino, Just a little sunshine in the rain: the 2010 case law of the European Court
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1. THE LEGAL FRAMEWORK OF THE RIGHT OF
ACCESS TO DOCUMENTS
The access to public information is fundamental to reach a good level of transparency, which is a precondition for accountability and participation. The right of access to documents is not an isolated issue, but it is part of a wider net that contributes to create good governance, and ensuring accountability is perhaps its clearest purpose10.
Although the right of access to public information and documents might seem a relatively new concept, especially in some countries of the world, its origin goes back to 1766, when Sweden included the Freedom of the Press
Act in its Constitution. Today the Act is known as the Principle of Public Access (in Swedish: Offentlighetsprincipen) and it grants, among other
rights, the public access to official documents and information held by the authorities, with two main exceptions: the documents of a public authority which are not considered public (i.e. draft decisions or letters) and documents containing confidential information.11
Sweden was the first country to introduce this right, and the others followed, but it took them almost 200 years: the second country was Finland, which in 1951 introduced the Act on the Openness of Public
Documents (in Finnish: Laki yleisten asiakirjain julkisuudesta 9.2.1951/83).
The Act has been revised in 1999 in order to remove some minor weaknesses, and the new version, the Act on the Openness of Government
activities 21.5.1999/621 (or Publicity Act; Julkisuuslaki), establishes that
10
Abazi and Hillebrandt The legal limits to confidential negotiations: Recent case law developments in
Council transparency: Access Info Europe and In‘t Veld, Common Market Law Review, 52, p. 825–846,
2015. © 2015 Kluwer Law International. Printed in the United Kingdom
11
Original: “I princip har alla svenska medborgare och utlänningar rätt att läsa de handlingar som finns
hos myndigheterna. Denna rätt begränsas dock på två sätt. För det första har allmänheten bara rätt att läsa allmänna handlingar. Alla handlingar hos en myndighet anses nämligen inte vara allmänna. Till exempel är ett utkast till beslut, skrivelse eller liknande i ett ärende normalt inte en allmän handling. För det andra är en del uppgifter i allmänna handlingar sekretessbelagda, dvs. hemliga. Det innebär att allmänhetens rätt att läsa handlingarna är begränsad. Det innebär också att myndigheterna är förbjudna att lämna ut handlingarna i de delar som innehåller sådana uppgifter.”
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“the authorities’ documents are public, unless otherwise provided in this or any other Act”12.
This short description of the very first origins of the right of access to documents has made clear that this right was born, and initially developed, in the Nordic European Countries, area still today renowned for the transparency of the governments of its countries. It has been a slower process for the rest of Europe, and of course the European Union has had a central role in it, through its Founding Treaties, the regulations and the codes of conduct, creating a sort of standard of openness that all the Member States are required to fulfil. It goes without saying that this body of law is part of the EU acquis that candidate countries should also comply with.
1.1. THE FIRST MOVES TOWARDS THE RIGHT OF ACCESS: MAASTRICHT AND THE CODES OF CONDUCT
Already before its entering into the primary legislation, the right of access to documents had gradually found its way through internal regulations and codes of conduct of the institutions.
In 1992, in Declaration n. 17 of the Treaty of Maastricht, the Intergovernmental Conference underlined that “transparency of the
decision-making process strengthens the democratic nature of the institutions and the public’s confidence in administration”, therefore it
specifically expressed the need for “measures designed to improve public
access to the information available to the institutions”13 and it urged the
Commission to submit to the Council a report on such measures no later than 1993. Accordingly, the following European Councils in Birmingham (16 October 1992), Edinburgh (11-12 December 1992) and Copenhagen (22
12
Original: “Viranomaisten asiakirjat ovat julkisia, jollei tässä tai muussa laissa erikseen toisin
säädetä”(chapter 1, article 1).
13
Treaty of Maastricht – Final Act, 7 February 1992, Declaration n. 17 Declaration on the right of access
to information: <<The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions>>.
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June 1993) included strong claims about the need for the institutions to grant public access to their documents in order to ensure the participation of the public and therefore a better level of transparency14.
Given this context, and after two Communications from the Commission on public access to the institutions’ documents15 and on openness in the
Community16, on 6 December 1993 the Council and the Commission
adopted the Code of Conduct Concerning Public Access to Council and Commission Documents (93/730/EC)17. The Code relied on the principle
that “the public will have the widest possible access to documents held by the Commission and the Council”18 and laid down basic rules of procedure
and possible exceptions to the right of access, but, according to the European Court of Justice, it was “an act expression of purely voluntary coordination and is therefore not intended in itself to have legal effects”19.
This Code was implemented by Decision 93/731/EC20 on public access to
Council documents adopted on 20 December 1993 by the Council, and by Decision 94/90/ECSC, EC, Euratom21 adopted by the Commission on 8
February 1994. Both the decisions established rules for access to the documents of the two institutions, but while the Commission’s decision basically recalled the joint Code of Conduct 93/730/EC, the Council’s decision provided a more detailed regulation. The joint code provisioned that the institution concerned has one month to provide response to an
14
See, on this topic, Bernard O’Connor Transparency and Openness in EC decision making, Liuc Papers n. 46, 1997 and Mirella Mombelli Castracane L’Europa dell’identità e della trasparenza. I cittdini dell’UE e
il diritto di accesso ai documenti “riservati”, 2008.
15
Commission Communication 93/C 156/05 on public access to institutions’ documents of 5 May 1993: set out the result of a survey on public access to documents in several Member States and stressed the necessity to develop further the access to documents at Community level (Official Journal of the European Communities C 156, page 5).
16
Commission Communication 93/C 166/04 on openness in the Community of 2 June 1993: elaborated the basic principles governing access to documents (Official Journal of the European Communities C 166, page 4).
17
Code of Conduct Concerning Public Access to Council and Commission Documents (93/730/EC), Official Journal of the European Communities of 31 December 1993 L 340, p. 41.
18Code of Conduct Concerning Public Access to Council and Commission Documents (93/730/EC),
General Principles.
19
Court of Justice, Case C-58/94, Netherlands v Council (EU:C:1996:171), 30 April 1996, Par. 27.
20Council Decision of 20 December 1993 on public access to Council documents (93/731/EC), Official
Journal of the European Communities of 31 December 1993 L 340, p. 43.
21
Commission Decision of 8 February 1994 on public access to Commission documents (94/90/ECSC, EC, Euratom), Official Journal of the European Communities of 18 February 1994 L 46, p.58.
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application; in case of negative response, the applicant is to submit a confirmatory application within a month, and the institution has another month to decide whether to confirm its negative decision or not: if the institution confirms the refusal, it has to send a written notification to the applicant, giving the grounds for the decision and indicating the means of redress. The Council’s code, recalled all these provisions, but it also foresaw that the requests for documents originating from natural or legal persons other than the Council would not be processed, and that failure from the institution to provide a response within the time limit was to be considered a negative response.
The European Parliament established the rules for public access to its own documents with Decision of 10 July 1997 (97/632 CECA, CE, Euratom)22,
mostly recalling the Codes of Conduct of Council and Commission, but setting the time-limit for responses to applications to 45 days.
It is important to notice that in none of the Codes there are provisions concerning the beneficiaries of the right of access, but rather a mere reference to a general “public”, maybe in order to point out that everyone should enjoy this right.
All the Codes of Conduct have been abrogated by the entry into force of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 may 2001 regarding public access to European Parliament, Council and Commission documents. It could be pointed out that starting in the 1990s the right of access to documents is not anymore merely a procedural right linked to the right of defence, but it is rather a fundamental right linked to principles of transparency, openness and democracy “in the everyday workings of EU administration”23.
22
European Parliament Decision of 10 July 1997 on public access to European Parliament documents (97/632/ECSC, EC, Euratom), Official Journal Of the European Communities of 25 September 1997 L 263, p. 27.
23
Nieto-Garrido, Eva Possible Developments of Article 298 TFEU: Towards an Open, Efficient and
Independent European Administration. European Public Law 18, no.2 (2012):373–398. © 2012 Kluwer
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1.2. THE RIGHT OF ACCESS IN THE AMSTERDAM TREATY
Article 255 of the Treaty on the European Community, as modified by the Amsterdam Treaty in 1999, laid down for the first time the right of access to documents. The text of the article reads as follows:
1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.
2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 25124 within two years of the
entry into force of the Treaty of Amsterdam.
3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.
The article granted the right of access to the documents of the Council, Commission and Parliament not only to the European citizens, but also “any natural or legal person residing or having its registered office in a Member State”; with such wording, this article revealed a fundamental conflict: the fact that the right of access is to be so “generally” granted at the same time promotes a higher level of transparency and deprives the European citizenship of all its meaning. The wording for defining the beneficiaries of the right in Article 15 of the future Treaty on the Functioning of the European Union and in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 may 2001 regarding public access to
24
16
European Parliament, Council and Commission documents will recall exactly this wording used in Article 255 ECT.
When establishing the right of access to the documents of the three main institutions, the article did not lay down any rules of procedure or exceptions, but rather it referred to “principles and conditions to be defined”, and for this reason the European Court of Justice established that “Article 255 is, by virtue of paragraphs 2 and 3 thereof, not unconditional and that its implementation is dependent on the adoption of subsequent measures”25. The Amsterdam Treaty in 1999 modified Article 191 of the
Treaty establishing the European Economic Community26, which merely
referred to the publication on the Official Journal of some specific types of documents, such as regulations, directives and decisions, and the notification of directives and decisions to those whom they are addressed to specifying the access to the justice regime. Therefore the right of access to documents was here at a very early stage, not actually granting the access to documents, but rather just the right to receive information on some aspect of the work of the European institutions. As said, in 1999 the Amsterdam Treaty introduced this article, clearly stating the right of access, and giving, in paragraph 3, the legal basis for Regulation No 1049/2001 of the European Parliament and Council.
25
General Court, Case T-191/99, Petrie and Others v Commission (EU:T:2001:284), 11 December 2001, Par. 35.
26European Economic Community Treaty, Article 191:
<<1. Regulations, directives and decisions adopted
in accordance with the procedure referred to in Article 189b shall be signed by the President of the European Parliament and by the President of the Council and shall be published in the Official Journal of the Community. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. 2. Regulations of the Council and of the Commission, as well as directives of those institutions which are addressed to all Member States shall be published in the Official Journal of the Community. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. 3.Other directives and decisions shall be notified to those to whom they are addressed and shall take effect upon such notification>>.
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1.3. THE RIGHT OF ACCESS AS A FUNDAMENTAL RIGHT IN THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION The Charter of Fundamental Rights represents the further step of the European Union in the field of access to documents. First of all, its Article 41 introduces the right to a good administration, stating as follows:
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.
2. This right includes:
- the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
- the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
- the obligation of the administration to give reasons for its decisions.
In this article there is the right of access to documents at its early stages, granted only for documents directly related to the applicant, but it is promptly expanded by Article 42, which provides as follows:
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents.
The content of this article has been taken over from Article 255 of the European Community Treaty, and it has been the basis for Regulation (EC) No 1049/200127.
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18
The recognition of the right of access to document as a fundamental right had already been wished for within the work of the European Court of Justice: among others, by the Advocates General Tesauro and Léger, that in their opinions, namely on case Netherlands v Council28 and case Council v
Hautala29, stressed the fundamental nature of this right and urged the
necessity of proper legislation that would recognise it as such. Moreover, Eva Nieto-Garrido, lawyer and professor of Administrative Law, in 2012, in her article on the European Public Law Review stated that “the right of access to documents differs from the right to good administration because the first one is not a new fundamental right of EU Law, it is a pre-existing right of EU Law, although its regulation by the Charter is a step forward in the process of its recognition and strengthening in the EU’s legal system and the ranking of fundamental rights”30.
The Lisbon Treaty in 2009 updated the terms under which the principles of transparency and openness clarify the right of public access to documents in the European Union, making the Charter of Fundamental Rights a source of primary law obligations.
No limits to this right are expressly mentioned in this article, but they can be found in Article 52 of the document defining the Scope of guaranteed
rights:
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest
28Opinion of Advocate General Tesauro on the case C-58/94 Netherlands v Council, delivered on 28
November 1995, par. 16: <<It may be considered that the right of access to information is increasingly clearly a fundamental civil right>>.
29Opinion of Advocate General Léger on the case C-353/99 P Council v Hautala, delivered on 10 July
2001, par. 77: <<the strength of the principle of access to documents derives from the fact that it is a fundamental right >>; par.79: <<Classification of the right of access to documents as a fundamental right constitutes a further stage in the process of recognising that principle and establishing its ranking within the Community legal order>>.
30
Nieto-Garrido, Eva Possible Developments of Article 298 TFEU: Towards an Open, Efficient and
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recognised by the Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
Therefore the limits to be applied to the right granted by the Charter, included the right of access to documents, can be found, today, in Article 15 of the Treaty on the Functioning of the European Union, which will be analyzed in the next paragraph.
1.4. ARTICLE 15 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION AND THE PRINCIPLE OF POENNESS IN THE DECISION-MAKING PROCESS
In 2009 the Lisbon Treaty modified Article 255 of the European Community Treaty making it today Article 15 of the Treaty on the Functioning of the European Union, which presents several important differences.
First of all, the first paragraph of the article, which calls for a general principle of transparency and states as follows:
1. In order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible.
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Moreover, the second paragraph of the article aims to carry out in practicality the principle of transparency, and in order to do so, it establishes the publicity of the legislative function of the European Parliament:
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.
The third paragraph is the most complex-structured one: it is divided in 5 subsections, each containing very important provisions. The first subsection recalls the first paragraph of Article 255 ECT, but it also includes two significant innovations, inasmuch as it extends the right of access from the document of the three main institutions of the European Union (Commission, Council and Parliament) to the documents of the Union’s bodies, offices and agencies, de facto increasing the number of documents now available. Secondly, this first subsection specifies that the right of access is to be granted regardless the medium of the requested document, stating as follows:
3(1). Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union's institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.
The second subsection recalls the second paragraph of Article 255 ECT, but establishing now that the European Parliament and the Council are to determine the general principles and limits to the right:
3(2). General principles and limits on grounds of public or private interest governing this right of access to documents shall be
21
determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.
The last paragraph of Article 255 ECT is recalled in the third subsection of the third paragraph of Article 15 TFEU, which extends the request of elaborating Rules of procedure to “each institution, body, office or agency”, and specifies how these Rules of procedure are to be adopted in conformity with the general principles and limits established by the Council and the Parliament. The subsection also calls for a widely granted transparency of the proceedings:
3(3). Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.
Moreover, Article 15 TFEU includes two provisions that cannot be found in Article 255 ECT. First of all, in the fourth subsection of the third paragraph, which specifies that some institutions of the European Union, namely the Court of Justice, the European Central Bank and the European Investment Bank are to abide by these rules when performing administrative tasks. Purpose of this specific provision is probably to protect essential interests as the good administration of the justice and the rightful functioning of the market by avoiding influences to the jurisdictional functions of the Court of Justice and to the market operations of the ECB and the EIB31. The
subsection states as follows:
3(4). The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be
31
See, on this topic, Giuseppe Conte, Portata e limiti del diritto di accesso ai documenti nell’Unione
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subject to this paragraph only when exercising their administrative tasks.
Lastly, the fifth subsection on the third paragraph of Article 15 underlines the importance of the transparency of the law-making process by establishing that the Parliament and the Council are to publish the documents relating to such process:
3(5). The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulations referred to in the second subparagraph.
This very detailed article deals with several aspects of the good governance: openness, public vote sessions, and of course access to documents, fundamental for participation of the civil society, which is one of the key concepts within the European Union. Moreover, it calls for transparency and for specific regulations for the institutions. On the contrary, though, it does not provide possible exceptions other than the vague “limits on grounds of public and private interest”, hence leaving the determination of those exceptions to the European Parliament and Council. The general principles and limits called for in Article 15 have been established in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 may 2001 regarding public access to European Parliament, Council and Commission documents.
1.5. REGULATION No 1049/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 may 2001 regarding public access to European Parliament,
23
Council and Commission documents32 originates from Article 255 of the
Treaty establishing the European Community (ECT), specifically paragraph 333; its aim is “to give the fullest possible effect to the right of public access to documents”34 and in order to do so, it sets out “the principles, condition
and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission documents”35
established in foresaid article. Moreover, it contains “rules ensuring the
easiest possible exercise of this right and promote good administrative practice on the access to documents”36.The fifth recital of the document
underlines that “since the question of access to documents is not covered
by provisions of the Treaty establishing the European Coal and Steel Community and 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 Amsterdam37, draw guidance from this Regulation as regards
documents concerning the activities covered by those two Treaties”38.
The Regulation also deals with the various aspects of the right, starting with the beneficiaries in Article 2, which recalls the wording in Article 255 of the EC Treaty:
2(1). Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation
32
Published on the Official Journal of the EU on 31.05.2001 (L 145); entry into force on 03.12.2001.
33European Community Treaty, Article 255 : <<Each institution referred to above shall elaborate in its
own Rules of Procedure specific provisions regarding access to its documents>>.
34
Regulation (EC) No 1049/2001, Recital n. 4.
35
Article 1, paragraph (a).
36 Article 1, paragraphs (b) and (c). 37
Treaty Of Amsterdam Amending The Treaty On European Union, The Treaties Establishing The European Communities And Certain Related Acts, 1997, Declaration No 41. Declaration on the provisions relating to transparency, access to documents and the fight against fraud :<<The Conference considers that the European Parliament, the Council and the Commission, when they act in pursuance of the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community, should draw guidance from the provisions relating to transparency, access to documents and the fight against fraud in force within the framework of the Treaty establishing the European Community>>.
38
24
In paragraph 2 of foresaid article, the Regulation states that it is possible for the institutions to “grant access to documents to any natural or legal
person not residing or not having its registered office in a Member State”39,
therefore completely unbinding the right not only from the requirement of the European citizenship, but also from the actual presence on the territory of the European Union: every natural or legal person has the right to access to the documents of the institutions. However, the European citizenship does make a difference when the application comes to a negative response by the institution concerned: only the European citizens can make a complaint to the Ombudsman, while the non-European citizens can only contest the decision before the European Court of Justice.
In the third paragraph of Article 2, is established that “this Regulation shall
apply to all documents held by an institution, drawn up or received by it and in its possession, in all areas of activity of the European Union”40. Therefore
this articles covers a very wide selection of documents, and the following provision, in paragraph (a) of Article 3, specifies that: “‘document’ shall
mean any 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”41.
Article 4 of the Regulation lays down all the possible cases in which the institution concerned can refuse to provide a requested document, and this aspect will be analyzed in the following chapter of the present work.
Although in Recital n. 16 it was clearly stated that the Regulation “is without
prejudice to existing rights of access to documents for Member States, judicial authorities or investigative bodies”42, Article 5 establishes that the
Member State receiving a request for access to a document originated in an institution “shall consult with the institution concerned in order to take a
decision that does not jeopardise the attainment of the objectives of this
39 Article 2(2). 40 Article 2(3). 41 Article 3(a). 42 Recital n. 16.
25
Regulation.”, “unless it is clear that the document shall or shall not be disclosed”43. It is debatable whether the meaning of this provision is
obvious, however, the Member State seems to be entitled to apply national law, but always complying to the general obligations of the Member State towards the European Union.
Article 6 of the Regulation sets out the procedure to be followed by the applicants: will be accepted “any written form, including electronic form, in
one of the languages referred to in Article 31444 of the EC Treaty”45. A very
important aspect of this procedure is that “the applicant is not obliged to
state reasons for the application”46, therefore the access to the requested
document cannot be refused on the basis of the applicant’s interests in obtaining it. The Regulation also establishes that it is to the applicant to submit the request in a “sufficiently precise manner to enable the institution
to identify the document”47, however, if the applicant fails to do so, the
institution is to informally contact the applicant and “provide information
and assistance”48.
According to Article 7, “an application for access to documents shall be
handled promptly”49: the institution shall provide a response, either positive
or negative, to the request within 15 working days from the registration of the application. This time-limit may be extended in exceptional case, for example when the application relates to a very long document or to a large number of documents, in which case the institution has 15 additional working days to provide a response. The institution can refuse, partially or totally50, to grant access to the requested document, and in that case the
institution is to provide a written reply to “state the reasons for the total or
partial refusal and inform the applicant of his or her right to make a
43 Article 5. 44
Namely: Dutch, French, German, Italian, Danish, English, Finnish, Greek, Irish, Portuguese, Spanish and Swedish. 45 Article 6(1). 46 Article 6(1). 47 Article 6(1). 48 Article 6(4). 49 Article 7(1). 50
The option of granting partial access is provisioned in Regulation (EC) No 1049/2001, Article 4(6), that will be analysed later on.
26
confirmatory application”51. Paragraph 2 of the article grants the applicant’s
right to “make a confirmatory application asking the institution to reconsider its position”52 within 15 working days of receiving the reply; a failure by the
institution to reply within the prescribed time-limit also entitles the applicant to make a confirmatory request. Article 8 of the Regulation concerns the processing of a confirmatory application: the institution has 15 working days to reconsider or confirm its decision (30 working days if the request relates to a very long document or a very large number of documents). If the institution confirms its decision to deny access to the requested document, it has the obligation to “inform the applicant of the
remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman” 53. A failure
by the institution to reply within the time-limit is to be considered a negative response and it entitles as well the applicant to contest the implicit negative decision before the court or to make a complaint to the Ombudsman: the implicit decision will necessarily appear vitiated by the lack of motivation.
The Regulation also establishes rules concerning the access to sensitive documents, which are defined in Article 9(1) as “documents originating from
the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’ “, “which protect essential interests of the European Union or of one or more of its Member States”54. The application for access to this documents follows the same
procedure as for non-sensitive documents, but it “shall be handled only by
those persons who have a right to acquaint themselves with those documents”55. Moreover, the consent of the originator of the document is
needed in order to release or record in the register any sensitive documents, as stated in paragraph 4.
51 Article 7(1). 52 Article 7(2). 53 Article 8(3). 54 Article 9(1). 55 Article 9(2).
27
Article 10 of the Regulation concerns the procedure for actual access once it has been granted by the institution concerned, as it ensures to the applicant several options for the consultation of the document: it is either possible to consult it on the spot or by receiving a copy (electronic or hardcopy), depending on the applicant’s preference.
In order to guarantee the effectiveness of the Regulation, institutions shall provide direct public access, in electronic form, to a register of documents, in accordance with the rules of the institution concerned56 and “where direct access is not given through the register, the register shall as far as possible indicate where the document is located”57.
Article 13 establishes which documents shall be published in the Official Journal of the European Union, in addition to those referred to in the European Community Treaty58 and in the EURATOM Treaty59:
(a) Commission proposals;
(b) common positions adopted by the Council in accordance with the procedures referred to in Articles 251 and 252 of the EC Treaty60 and the reasons underlying those common positions,
as well as the European Parliament's positions in these procedures;
(c) framework decisions and decisions referred to in Article 342 of the EU Treaty61;
56 Articles 11 and 12. 57 Article 12(4). 58
European Community Treaty, Article 245: <<1. Regulations, directives and decisions adopted in
accordance with the procedure referred to in Article 251 shall be signed by the President of the European Parliament and by the President of the Council and published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the 20th day following that of their publication. 2. Regulations of the Council and of the Commission, as well as directives of those institutions which are addressed to all Member States, shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the 20th day following that of their publication>>.
59
EURATOM Treaty, Article 1631: <<The regulations shall be published in the Official Journal of the
Community. They shall enter into force on the date fixed in them or, failing thus, on the twentieth day following their publication>>.
60
Relatively to the procedure of adoption of acts.
61
Relatively to “Member States represented in international organisations or international conferences where not all the Member States participate”
28
(d) conventions established by the Council in accordance with Article 342 of the EU Treaty;
(e) conventions signed between Member States on the basis of Article 293 of the EC Treaty62;
(f) international agreements concluded by the Community or in accordance with Article 24 of the EU Treaty63.64
The Regulation dictates further obligations both for the institutions, which
“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”65, and for the Member States, which “shall cooperate with the institutions in providing information to the citizens”66.
Regulation No 1049/2001, when introduced, applied only to documents withheld by the European Parliament, Council and Commission, but its action has been spread to “agencies and similar bodies created by the
legislator” with the Joint declaration relating to Regulation (EC) No
1049/2001, and to the European External Action Service (‘EEAS’) with Article 11 of the Council Decision establishing the organisation and functioning of the EEAS67
Other bodies of the European Union have adopted specific rules for their own documents: the Court of Justice of the European Union with Decision 2013/C 38/0268, the Committee of the Regions with Decision No 64/200369
62
Relatively to negotiations between Member States in order to ensure the benefit of their nationals.
63
Relatively to matters of common foreign and security policy.
64Regulation (EC) No 1049/2001, Article 13(1). 65
Article 17(1).
66
Article 14(2).
67Council Decision of 26 July 2010 establishing the organisation and functioning of the European External
Action Service (2010/427/EU), Article 11: <<1. The EEAS shall apply the rules laid down in Regulation
(EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1). The High Representative shall decide on the implementing rules for the EEAS>>.
68
Decision Of The Court Of Justice Of The European Union of 11 December 2012 concerning public access to documents held by the Court of Justice of the European Union in the exercise of its administrative functions (2013/C 38/02)
69
Committee of the Regions Decision No 64/2003 of 11 February 2003 on public access to Committee of the Regions documents.
29
and the European Central Bank with Decision ECB/2004/3 amended in 201570.
In April 2008 the Commission presented a proposal for the amendment of Regulation No 1049/200171, but, given the absence of an agreement with
the other institutions and, in the meantime, the entry into force of the Lisbon Treaty, the Commission presented another proposal for amendment in 201172, in order to include in the Regulation the provisions laid down in
Article 15 of the Treaty on the Functioning of the European Union. No agreement between Commission, European Parliament and Council has been achieved on the matter yet.
According to the reports yearly submitted by the EU institutions on the application of Regulation No 1049/2001, the Commission is the institution that handles the largest number of requests for access to documents of all the EU institutions and bodies: in 2015 the Commission received 6752 requests for access73, the Council received 2784 requests74 and the
Parliament 44475.
1.6. THE COUNCIL OF EUROPE CONVENTION ON ACCESS TO OFFICIAL DOCUMENTS
In 2009 the Council of Europe drafted in Tromsø, Norway, the Convention
on Access to Official Documents, which is the first binding international legal
instrument to recognise a general right of access to official documents held
70Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 amending Decision
ECB/2004/3 on public access to European Central Bank documents (ECB/2015/1).
71
Commission Proposal for a Regulation of the European Parliament and of the Council regarding public
access to European Parliament, Council and Commission documents, COM(2008)229.
72
Commission Proposal for a Regulation of the European Parliament and of the Council amending
Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, COM(2011)137.
73
Report from the Commission on the application in 2015 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents - Brussels, 24.8.2016, COM(2016) 533 final.
74
Council of the European Union Fourteenth annual report of the Council on the implementation of
Regulation (EU) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents - Brussels, 10
June 2016, 9308/16.
75
European Parliament Bureau Contribution to the European Parliament’s Annual Report - PE 583.360/BUR/ANN, May 2016.
30
by public authorities, it also sets limitations to this right and the minimum standard to be applied in the processing of the requests.
Article 1 of the Convention sets the basis to correctly interpret and implement the right, defining the possible offices that can be considered a “public authority”:
- government and administration at national, regional and local level;
- legislative bodies and judicial authorities insofar as they perform administrative functions according to national law; - natural or legal persons insofar as they exercise administrative
authority76
Moreover, each Party can also choose to consider “public authorities” one or more of the following77:
- legislative bodies as regards their other activities; - judicial authorities as regards their other activities;
- natural or legal persons insofar as they perform public functions or
- operate with public funds, according to national law.78
The second point of the article defines instead the actual object of the right: “’official documents’ means all information recorded in any form, drawn up or received and held by public authorities”79
76
Council of Europe Convention on Access to Official Documents (Council of Europe Treaty Series - No. 205), Tromsø, 18.06.2009, Article 1(2)(a)(i).
77 As of today only two declarations regarding Article 1(2)(a)(ii) and informing the Secretary General of
the Council of Europe about the definition of “public authorities” are in force: one from the Republic of Hungary, that decided to include “legislative bodies as regards their other activities, judicial authorities as regards their other activities and natural or legal persons insofar as they perform public functions or operate with public funds, according to national law”; and the other from the Republic of Lithuania, that decided to include “legislative bodies as regards their other activities, judicial authorities as regards their other activities, natural or legal persons insofar as they perform public functions or operate with public funds, according to national law”.
78
Article 1(2)(a)(ii).
79
31
According to Article 2, the right to access to official documents held by public authorities must be guaranteed to “everyone, without discrimination on any ground”80and through the “necessary measures in the domestic law”
that are to be taken by the Parties81.
Furthermore, there is no obligation for the applicant to provide reasons when submitting an application for access; the applicant also has the possibility to remain anonymous, unless disclosure of the identity is fundamental in order to complete the processing of the requests82.
The public authorities have the duty to provide assistance in identifying the correct document concerned by the request, they shall as well proceed with the processing of the request within a reasonable time-term and on equal basis for every requests83. The submitted request may be refused in two cases:
- if, despite the assistance from the public authority, the request remains too vague to allow the official document to be
identified; or
- if the request is manifestly unreasonable84
The public authority must in any case give the reasons for the refusal, since the applicant, in case of denial, has the right to access to a review procedure in front of a court or another independent and impartial body.85 Once the right is granted, the applicant can choose whether to consult the original document or a copy provided by the public authority, also in case the authority only granted partial access86.
One true innovation of the Convention is the introduction of the Group of Specialists, which consists of ten to fifteen experts “chosen from among persons of the highest integrity recognised for their competence in the field
80 Article 2(1). 81 Article 2(2). 82 Article 4. 83 Article 5. 84 Article 5(5). 85 Article 8. 86 Article 6.
32
of access to official documents”87. The members of the Group are elected by
the Consultation of Parties, which is composed of one representative for each Party, from a list of experts, for a period of four years; they shall “be independent and impartial in the exercise of their function and shall not receive any instructions from the governments”88. The Group of Specialists
is required to meet at least once a year in order to share and discuss information, opinions and proposal concerning the implementation of the Convention by the Parties.89
As to today90 the Convention is open for signature by the Member States of the Council of Europe91, for accession by non-member States and by any international organisation. Currently, it has been signed by fourteen countries and ratified by nine92: significantly, next to the progressive and long-time supporters of the principles of transparency and openness Nordic countries, the other signatories belong mainly to the Balkans, and are among those countries often criticized for the lack of transparency in their public institutions. On the other hand, no signature has been put on the treaty by the western Members like France, Germany and Italy, yet. It is important to point out that only seven93 of the 28 EU Member States signed the Convention, and only five94 of the seven ratified: it its Resolution 2125 adopted on 23 June 2016, the Parliamentary Assembly “calls on the European Union and on those member States of the Council of Europe which have not yet done so to sign and/or ratify the Convention on Access to Official Documents”95.
87 Article 11(3). 88 Article 11(4). 89 Article 11(1).
90 Information updated as February 17th 2017. 91
A total of 47 countries, that includes, besides the 28 Members of the European Union: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Iceland, Liechtenstein, Monaco, Montenegro, Norway, Republic of Moldova, Russian Federation, San Marino, Serbia, Switzerland, The Former Yugoslav Republic of Macedonia, Turkey and Ukraine.
92
Signatory countries: Belgium, Bosnia and Herzegovina, Estonia, Finland, Georgia, Hungary, Lithuania, Moldova, Montenegro, Norway, Serbia, Slovenia, Sweden, The Former Yugoslav Republic of Macedonia. Ratifications: Bosnia and Herzegovina, Estonia, Finland, Hungary, Lithuania, Moldova, Montenegro, Norway, Sweden.
93 Belgium, Estonia, Finland, Hungary, Lithuania, Slovenia and Sweden. 94
Estonia, Finland, Hungary, Lithuania and Sweden.
95
Parliamentary Assembly Resolution 2125 (2016) Transparency and Openness in the European
