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EUROPOL
The Hague, 8 July 2009
Management Board
EDOC# 360875 v9
File no. 3550-95r3
DECISION OF THE MANAGEMENT BOARD OF
EUROPOL
laying down the rules concerning access to Europol
documents
THE MANAGEMENT BOARD OF EUROPOL,
Having regard to the Council Decision establishing the European Police Office
(EUROPOL) of 06 April 2009 (hereinafter “the Europol Decision”)
1 and in
particular Article 45 thereof,
Whereas:
(1) According to Article 45 of the Europol Decision, on the basis of a
proposal by the Director of Europol, the Management Board, shall adopt
rules concerning access to Europol documents, taking into account
the
principles and limits set out 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
(hereinafter referred to as “Regulation 1049/2001”).
(2)
The second subparagraph of Article 1 of the Treaty on European Union
(hereinafter referred to as “the EU Treaty”) enshrines the
concept
of
openness, stating that the Treaty marks a new stage in the process of creating
an ever closer union among the peoples of Europe, in which decisions are
taken as openly as possible and as closely as possible to the citizen.
(3)
Openness guarantees that the administration enjoys greater legitimacy
and is more effective and more accountable to the citizen in a
democratic system. Openness contributes to strengthening the
principles of democracy and respect for fundamental rights as laid
down in Article 6 of the EU Treaty, in Article 255 of the Treaty
establishing the European Community and in Article 42 of the Charter
of Fundamental Rights of the European Union.
(4)
In accordance with Article 41(1) of the EU Treaty, the right of access
also applies to documents relating to police and judicial cooperation in
criminal
matters.
(1) OJ L 121, 15.05.2009, p.37.
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(5)
In principle, all documents should be accessible to the public. However,
public and private interests should be protected by way of exceptions.
Europol should be entitled where necessary to safeguard its ability to
carry out its tasks.
(6)
In order to ensure that the right of access is fully respected, a two- stage
administrative procedure should apply.
(7)
These rules are without prejudice to Article 30 of the Europol Decision
on the right of access,
HAS ADOPTED THE FOLLOWING DECISION:
Article 1
Definitions
For the purpose of these rules:
(a) “Europol document” or “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 Europol’s activities,
policies and decisions;
(b) “Third parties” means third States and organisations as referred to in Article
23(1) of the Europol Decision;
(c) “EU bodies“ means institutions, bodies, offices and agencies set up by, or on
the basis of, the Treaty on European Union and the Treaties establishing the
European Communities, as referred to in Article 22(1) of the Europol
Decision;
(d) “Private parties or private persons” shall mean any legal or natural parties or
persons as referred to in Article 25(1) of the Europol Decision;
(e)
“Europol classified documents” shall mean documents which contain
information requiring additional security measures and which are marked with
one of the classification levels “Europol RESTRICTED”, “Europol
CONFIDENTIAL”, “Europol SECRET” or “Europol TOP SECRET” in
accordance with the Rules on the confidentiality of Europol information.
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Article 2
Purpose
The purpose of these rules is:
(a) to define the principles, conditions and limits on grounds of public or private
interest governing the right of access to Europol documents in such a way as
to ensure the widest possible access to documents;
(b) to establish rules ensuring the easiest possible exercise of this right; and
(c) to promote good administrative practice on access to documents.
Article 3
Beneficiaries and scope
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
Europol, subject to the principles, conditions and limits defined in these rules.
2. Europol may, subject to the same principles, conditions and limits, grant access
to documents to any natural or legal person not residing or not having its
registered office in a Member State.
3. These rules shall apply to all documents held by Europol, that is to say,
documents drawn up or received by it and in its possession, in all areas of
activity of Europol.
4. Individuals specifically requesting data only related to them shall not be covered
by these rules. In such cases individuals shall be referred to the procedure
mentioned in Article 30 of the Europol Decision.
5. Without prejudice to Article 4, documents shall be made accessible to the public
either following a written application or directly in electronic form in accordance
with Article 11.
Article 4
Exceptions
1. Europol shall refuse access to a document where disclosure would undermine
the protection of:
(a) the public interest as regards:
public security including the safety of natural and legal persons,
the proper fulfilment of Europol’s tasks,
investigations and operational activities of Member States, third
parties or EU bodies,
defence and military matters,
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international relations,
the financial, monetary or economic policy of the Community or a
Member State,
(b) the privacy and integrity of the individual.
2. Europol shall refuse access to a document where disclosure would undermine
the protection of:
commercial interests of a natural or legal person, including
intellectual property,
court, arbitration and dispute settlement proceedings and legal
advice,
the purpose of inspections, investigations and audits, other than
those mentioned under paragraph 1 (a),
unless there is an overriding public interest in disclosure.
3. Access to a document, drawn up for internal use or received by Europol, which
relates to a matter where the decision has not been taken by Europol, shall be
refused if disclosure of the document would undermine Europol’s decision-
making process, unless there is an overriding public interest in disclosure.
Access to a document containing opinions for internal use as part of
deliberations and preliminary consultations within Europol shall be refused even
after the decision has been taken if disclosure of the document would undermine
Europol’s decision-making process, unless there is an overriding public interest
in disclosure.
4. As regards documents originating in whole or in part from Member States, third
parties, EU bodies, private parties or private persons, Europol shall consult them
with a view to assessing whether paragraphs 1, 2 or 3 are applicable. If the
document originates from a Member State, third party or EU body with which
Europol has concluded a cooperation agreement, Europol will not disclose the
document without their written consent.
5. If only parts of the requested document are covered by any of the exceptions,
the remaining parts of the document shall be released.
6. The exceptions as laid down in paragraph 1 to 3 shall only apply to the period
during which protection is justified on the basis of the content of the document.
The exceptions may apply for a maximum period of 30 years. In the case of
documents covered by the exceptions relating to integrity or privacy of individuals
or commercial interests and in the case of Europol classified documents, the
exceptions may, if necessary, continue to apply after this period.
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Article 5
Europol documents in the Member States, third parties and EU bodies with which
Europol has concluded a cooperation agreement
Where a Member State, a third party or EU body with which Europol has
concluded a cooperation agreement receives a request for a document in its
possession originating from Europol, Europol shall undertake that these parties
consult with Europol in order to take a decision that does not jeopardise the
objectives of these rules. Europol shall also undertake that the third parties and
EU bodies with which Europol has concluded a cooperation agreement do not
disclose the document without Europol’s written consent. Europol shall ensure
that this obligation is reflected in the cooperation agreements concluded between
Europol and third parties and EU bodies.
Member States may, as an alternative, refer the request to Europol.
Article 6
Applications
1. Applications for access to a document shall be made in any written form,
including electronic form, in one of the languages referred to in Article 47(1) of
the Europol Decision and in a sufficiently precise manner to enable Europol to
identify the document. The applicant is not obliged to state reasons for the
application.
2. If any application is not sufficiently precise, Europol shall invite the applicant to
provide additional information making it possible to identify the documents
requested. The deadline for reply as established in Article 7 and 8 shall begin
when Europol has received the additional information.
3. In the event of an application relating to a very long document or to a very large
number of documents, Europol may confer with the applicant, with a view to
finding a fair solution.
4. Europol shall provide information and assistance to citizens on how and where
applications for access to documents can be made. Guidance shall be set up on
the Europol website.
Article 7
Processing of initial applications
1. An application for access to a document shall be handled promptly. An
acknowledgement of receipt shall be sent to the applicant. Within 30 working
days from registration of the application, Europol shall either grant access to the
document requested and provide access in accordance with Article 10 within that
period or, in a written reply, state the reasons for the total or partial refusal and
inform the applicant of his or her right to make a confirmatory application in
accordance with paragraph 3 of this Article.
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2. In exceptional cases, for example in the event of an application relating to a very
long document or to a very large number of documents, the time-limit provided
for in paragraph 1 may be extended by 30 working days, provided that the
applicant is notified in advance and that detailed reasons are given.
3. In the event of a total or partial refusal, the applicant may, within 30 working days
of receiving Europol’s reply, make a confirmatory application asking Europol to
reconsider its position.
4. Failure by Europol to reply within the prescribed time-limit shall entitle the
applicant to make a confirmatory application.
Article 8
Processing of confirmatory applications
1. A confirmatory application shall be handled promptly. Within 30 working days
from registration of such an application, Europol shall either grant access to the
document requested and provide access in accordance with Article 10 within that
period, or in a written reply, state the reasons for the total or partial refusal.
2. In exceptional cases, for example in the event of an application relating to a very
long document or to a very large number of documents, the time limit provided
for in paragraph 1 may be extended by 30 working days, provided that the
applicant receives reasoned notice in advance.
Article 9
Europol classified documents
1. Applications for access to Europol classified documents under the procedures
laid down in Articles 7 and 8 shall be handled only by those persons within
Europol who have a right to acquaint themselves with those documents in
accordance with the provisions of the Europol Security Manual.
2. Europol classified documents shall not automatically be subject to refusal of
access. Every classified document shall be examined whether any of the
exceptions provided for by Article 4 apply. Classified documents can not be
disclosed, unless they have been declassified in accordance with Article 10 of
the Rules on confidentiality. Access to classified Member State, third party and
EU body documents shall be subject to the consultation mechanism referred to in
Article 4(4).
3. If Europol decides to totally or partially refuse access to a classified document it
shall give the reasons for its decision in a manner which does not harm the
interests protected in Article 4.
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Article 10
Access following an application
1. The applicant shall have access to documents by receiving a copy, including
where available in electronic form, according to the applicant’s preference.
Copies of less than 20 A4 pages and direct access in electronic form shall be
free of charge. Otherwise, the real cost of producing and sending the copies will
be charged to the applicant.
2. If a document has already been released by Europol, the Member State, third
party or EU body concerned and is easily accessible to the applicant, Europol
may fulfil its obligation of granting access to documents by informing the
applicant how to obtain the requested document.
3. Documents shall be supplied in an existing version and format (including
electronically or in an alternative format such as Braille, large print or tape) and in
one of the available linguistic versions in accordance with the applicant’s
preference.
Article 11
Direct access in electronic form
1. Europol shall provide access to a register of publicly accessible documents and
shall as far as possible make documents directly accessible in electronic form.
2. In particular, legislative documents, that is to say, documents drawn up or
received in the course of procedures for the adoption of acts which are legally
binding, shall, subject to Article 4, be made directly accessible.
Article 12
Implementation
The implementation of these rules shall be subject to a decision of the Director of
Europol, which will in particular outline the involvement of Europol’s organs in the
handling of public access requests to these documents.
Article 13
Information
Europol shall take the requisite measures to inform the public of the rights they
enjoy under these rules.
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Article 14
Reproduction of documents
These rules shall be without prejudice to any existing rules on copyright which
may limit the right to reproduce or exploit released documents of Member States,
third parties, EU bodies, private parties and private persons.
Article 15
Entry into force
These rules shall enter into force on the same day as the date of application of
the Europol Decision.
Done at The Hague on 08/07/2009
Signed by Mr Sören Clerton
For the Management Board
The Chairman
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