Back to home page

Europe D66 European Parliament

Commentary on the draft regulation regarding Public access to documents

   Tue 08/02/2000

Analysis by the D66-group in the European Parliament on the draft proposal for a directive on access to European documents.

Article 1

The wording is unnecessarily limiting. There is no reason why the right of access should apply to citizens and inhabitants of the Union only. Ex: Why should an American not be able to obtain documents?

Article 2

Documents sent to the institutions before the date of entry into application of the Regulation should be excluded, but could become accessible if the sender gives permission.

Article 3


The regulation should not limit its scope to finalised documents, as the above draft suggests, but should also include preliminary documents. This will allow for a solid public debate as part of the decision-making process. The quality of EU policies would improve and the public could participate more in decision making.

If preliminary documents are excluded it will be a step back from the current situation. Commission drafts are in the public domain at an early stage, but there is no legal requirement to provide access to the public. Companies and organisations with substantial resources can use large numbers of Brussels based lobbyists to obtain what they need. These therefore have more of a chance to obtain information than individuals or organisations with less money or without a base in Brussels. It is not acceptable that the less wealthy can only make their voice heard after a decision has been taken. It is this de facto inequality that must be rectified.

Discussion documents and opinions from other departments are a crucial part of decision making and should thus be public.

Informal notes can also be crucial to a discussion. Ex: A director could attach an informal note to a critical draft report, which states "suppress". Obtaining that informal note can be crucial to a discussion about why the report was never published.

In order to avoid excessive numbers of drafts adding to public confusion one could consider documents becoming available after they have left a certain level. Ex: Head of Unit level in the Commission, secretariat level in the EP. The status of the document should simply be clear from the beginning. The press will have to learn to deal with drafts.

b) "Institutions" should include all institutions and bodies of the European Union. Ex: decentralized agencies, Committee of the Regions. c) Political groups are not part of the EU institutions and thus have their own responsibility regarding public access to their documents and should not be included in this regulation. d) Ok e) Add "agencies that assist the Commission in implementing policies". Ex: Kosovo Reconstruction Agency.

Article 4

The list of exceptions is too broad and too general. It is thus open to abuse.

All future Union legislation should include a clause specifying in detail and inclusively which exceptions apply for documents produced under that legislation (this system exists in Sweden). In the long run, existing legislation should be adapted accordingly.

a) "Infringement proceedings, including the preparatory stages thereof": infringement proceedings concern the application of community laws by a public body. There is no reason why these and their preparation should not be public. If early publication leads a member state to rectify the situation before proceedings are brought, all the better.

KEY PROBLEM! "The deliberations and effective functioning of the institutions" is a broad "catch all" exemption, which unless further defined can be used for virtually all documents. Ex: the documents proving that Commissioner Cresson hired her dentist definitely intervened with the effective functioning of the institutions. That is precisely why they had to be made public.

d) Documents should only be exempted from access because of their content, not because of their source. Exceptions on the basis of content are already covered by paragraphs a) through c) of this article, so paragraph d) can be removed.

Article 5

Since the objective of the regulation is "to widen access to documents as far as possible" (consideration 4), the general principle should be that documents are public unless specified otherwise. The draft has the opposite effect. Nothing is public, unless it is requested.

The institutions should not postpone decisions on public access of a document until they receive a request. Instead, they should take that decision immediately when a document is received or produced and mark the document as such. In this way, all unmarked documents are at all times public and can be handed out without delay once a request is received. This procedure leaves less room for political opportunism during the decision-making. After all, whether a document is public or not should be entirely based on the content of the document and not on the political circumstances, the moment of application or an assessment of the person or body requesting the document.

Also, institutions should handle requests for access of documents proactively. Their purpose is to serve the public and their aim should be to help the applicant find the document he or she is looking for, not the other way round. Paragraph 1 assumes that the applicant is aware of the document and can identify it. This will not always be the case and the institutions should facilitate the process.

Article 7

1. Institutions should not have the freedom to decide that an applicant has to travel to Brussels in order to consult a document on the spot. Leaving the choice of the mode of access (in situ vs. electronically) to the institution, risks abuse: the institution could insist that someone based in Greece come to Brussels to read the document.

2. The cost of access may be charged to the applicant, but only within reasonable limits. A free e-mail copy should be made available at all times.

Insert new paragraph: Public documents must always be made available on the internet.

4. This paragraph needs more specification. Documents affected by the exceptions mentioned in article 4 should be made available by removing the information referred to in that article. For instance, if a document contains personal information, the document could still be made available to the public after crossing out the name.

Article 8

This article is unnecessary and unenforceable. Applicants that have obtained a document should be able to reproduce this. If this is not allowed an environmental umbrella organisation would need special permission to copy the document to its members. If I post it on my website, is that reproduction? What will be the definition of economic use? A newspaper can quote a document and thus sell more copies. Is that economic use?

Article 9

The register of documents should be posted on the Internet.

Lousewies van der Laan, MEP Bob van den Bos, MEP Strasbourg, February 2000