Proposals to reform the right of access to EU institutions’ documents

13 October 2008

Hazel Grant, Rhian Hill

In April 2008, the European Commission published a proposal to reform the system to access EU institutions’ documents. Article 255 of the Treaty of Rome grants a right to access European Parliament, European Council and Commission documents. Regulation 1049/2001, sets out the principles and limits governing this right of access.

However, since these rights of access were granted, there have been a number of significant cases regarding the right of access to documents. The Commission wished, therefore, to table amendments to Regulation 1049/2001, to reflect these cases. Many of the changes were made to bring the Regulations into line with the Aarhus convention on environmental information. For example, the exemption in the Regulation to protect commercial interests does not apply to information on emissions which is relevant for the protection of the environment.

The following proposals may prove to be particularly significant if they are accepted.

  • It is proposed that the right of access should be extended so that any person may access documents not simply EU residents or legal persons.  This change is proposed in order to be consistent with the right of access to information regarding environmental matters.

  • The proposal also clarified that in order to fall within the definition of “document”, a document has to be transmitted to its recipient, circulated within the institution or registered in some other way.

  • The Commission expressly states that only documents submitted by institutions to the Courts can be disclosed. However, the Commission has proposed that information created during policy making and consultation should be protected from access, until such the decision can not longer be challenged.

  • A new exception has been introduced from the obligation to disclose. Where information relates to processes leading to the selection of staff or contracting parties, these would not have to be disclosed.

  • Member States should be consulted before disclosure, unless it is obvious whether the document should be disclosed.

  • The EC proposed that there should be a clear relationship between the regulations and the data protection directive, so that, in effect, if personal data is included in the document then Regulation 1049 would not apply to allow access and instead the data protection directive would take precedence. 

  • Another change proposes that names, titles and functions of public office holders, civil servants and interest representative (i.e. lobbyists meeting EU commissioners and officials) would be disclosed, unless the disclosure would adversely affect the person concerned.

The European Data Protection Supervisor (EDPS) has welcomed the “Commission's intention to clarify the delicate interaction between public access and data protection”, however he has expressed reservations as to the exact amendments proposed.  He has expressed specific concern that the new proposals do not adequately protect personal data.

The proposal will now be put before the European Parliament.