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GSC INTERNAL DOCUMENT
4/09/2018
CURRENT PRACTICE ON ACCESS TO DOCUMENTS AT THE GSC
1. Principles
The implementation of the general principles on public access to documents, enshrined in
Regulation 1019/2001, is contained in Article 10 and Annex II of the Council's Rules of Procedure.
1 These principles include the establishment of a public register of documents which currently
includes approximately. 380.000 documents (excluding linguistic versions of the same document)
of which 70% are public.
Article 11 of this Annex lists the type of documents which are to be directly accessible to the public
upon circulation (e.g. provisional agendas for meetings of the Council) and those which should be
directly accessible if clearly not covered by any of the exceptions laid down in Art.4 of Regulation
1049/2001 - see annex I (e.g. provisional agenda of committees and working parties; notes, reports,
progress reports and reports on the state of discussions in the Council or one of its preparatory
bodies).
Documents which are not directly public (those which are classified or LIMITE, basically to protect
one or more interests referred to in Art.4 of Reg.1049/2001) can become public:
a) if no longer covered by one of these exception and if related to a legislative act: automatically
after adoption of that act (Art.11.6 of Annex II CRoP) or,
b) upon request of the public, providing none of the exceptions still apply.
Classification of a document or the marking LIMITE are decided on a case-by-case approach based
on series of instructions (see e.g. 11336/11, 5109/1/17 REV1 and 14352/16) leaving a wide margin
of appreciation to policy DGs.
1
OJ L 325, 11.12.2009, p. 36
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Currently there are no provisions for a structural review of the LIMITE status of documents (except
after adoption of a legislative act) which means that release of a document is mostly reactive and
not proactive.
2. Current practice
The different procedural steps in the handling of requests for access to document and confirmatory
applications are set out in annex II.
Issuing of legislative documents
Last year, the Council issued 6 104 legislative documents
of which 1 933 were issued as 'public'
upon circulation. Of the remaining 4 171 legislative documents issued as LIMITE (with a reference
in the register but not directly accessible), 2 406 documents were made public upon request.
Requests for access to documents
In 2017, the Council received 2 597 initial requests for access to documents requiring the analysis
of 8 000 documents. At the initial stage, full access was granted to 5 466 documents (68.3%) and
partial access to 678 documents (8.5%).
A breakdown by policy areas to which these requests relate, can be found in annex III. The area
with the greatest number of requests was Justice and Home Affairs (15,9%), followed by
Environment (13,7%).
LDH/SBL/04092018
So far in 2018, the GSC has received 1 680 requests for access to documents, including (after the
De Capitani judgement) 64 requests for 4-column trilogue tables of which a vast majority relates to
COREPER I competence.
These
initial requests are handled by the GSC's Transparency Service in DG COMM which makes
a final assessment after consultation of the policy DG, author of the document.
At the initial stage, documents in 2017 were refused mainly in order to protect the Council's decision-
making process (545 times, or 32%), to protect the public interest as regards international relations (269
times, or 15,8%) or for reasons of public security (51 times, or 3%). In nearly 46% of cases (780 times),
documents were refused based on the combination of a number of exceptions.
If access is refused on the basis of one of these exceptions, applicants can enter a so-called
confirmatory application (appeal).
In 2017, the GSC received 31 confirmatory applications relating to 135 documents. Full access was
granted to 25 documents (representing 18.5% of all documents requested) and partial access to 26
documents (19.3%). For the others, the refusal of access was confirmed. If no full access is granted,
the applicant may make a complaint to the Ombudsman or institute court proceedings with the ECJ.
In 2017, the GSC received three complaints from the Ombudsman. In such cases, the Council is
requested to re-examine the case and to inform the Ombudsman of the results of this re-
examination.
So far in 2018, the GSC has 22 confirmatory applications and no complaints from the Ombudsman.
These confirmatory applications are handled by the Transparency Service together with the Council
Legal Service. The Working Party on Information is consulted on the draft reply to the applicant
which afterwards requires adoption by CRP and Council (I/A item).
The full Council Annual Report on Access to documents for 2017 can be f
ound here.
LDH/SBL/04092018
ANNEX I
Article 4 of Regulation (EC) N° 1049/2001
Exceptions
1. The institutions shall refuse access to a document where
disclosure would undermine the protection of:
(a) the public interest as regards:
— public security,
— defence and military matters,
— international relations,
— the financial, monetary or economic policy of the
Community or a Member State;
(b) privacy and the integrity of the individual, in particular in
accordance with Community legislation regarding the
protection of personal data.
2. The institutions 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 proceedings and legal advice,
— the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure.
3. Access to a document, drawn up by an institution for
internal use or received by an institution, which relates to a
matter where the decision has not been taken by the institution,
shall be refused if disclosure of the document would
seriously undermine the institution'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 the
institution concerned shal be refused even after the decision
has been taken if disclosure of the document would seriously
undermine the institution's decision-making process, unless
there is an overriding public interest in disclosure.
4. As regards third-party documents, the institution shal
consult the third party with a view to assessing whether an
exception in paragraph 1 or 2 is applicable, unless it is clear
that the document shall or shall not be disclosed.
5. A Member State may request the institution not to
disclose a document originating from that Member State
without its prior agreement.
6. If only parts of the requested document are covered by
any of the exceptions, the remaining parts of the document
shall be released.
7. The exceptions as laid down in paragraphs 1 to 3 shall
only apply for 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 privacy or
commercial interests and in the case of sensitive documents,
the exceptions may, if necessary, continue to apply after this
period.
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ANNEX II
Main stages of the processing of requests for public access to documents2
Initial application
•
Registration of the application for access, including deadline for reply
3, and identification of
the requested documents.
•
Examination of the requested document(s) on the basis of Article 4 of Regulation 1049/2001
by DG COMM (Transparency Service).
•
Consultation of the responsible GSC service by a member of the Transparency Service,
making clear that access should in principle be granted unless the exceptional circumstances
envisaged by the Court are met.
•
Decision on access, partial access or refusal. Any (partial) refusal must be motivated, based
on the exceptions provided for in Article 4 of Regulation 1049/2001 and in line with the Court
judgment.
•
Letter of reply is sent to the applicant within 15 working days of the reception of the request,
possibly extended, containing the motivation in case of (partial) refusal.
The decision is taken by the General Secretariat (DG COMM on the basis of the
consultation with the DG)
Confirmatory application
In the event of partial access or a refusal of access, the applicant may, within 15 working days of
receiving the reply, submit a confirmatory application asking the institution to reconsider its
position.
•
Registration of the confirmatory application for access to one or several documents and
establishment of the 15 working-day deadline for reply.
•
Re-examination of the requested document(s) on the basis of Article 4 of Regulation
1049/2001 by DG COMM (Transparency Service) in cooperation with the Council Legal
Service.
•
Re-consultation of the originating service by a member of the Transparency Service.
2
See also Summary of procedures in
ST 6896/1/17 REV1
3
Time-limit of 15 working days, which in exceptional cases, for example, in the event of a very large
number of documents, may be extended by 15 working days.
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•
Draft reply is drawn up by the Transparency Service and submitted to the Council Legal
Service.
•
Approval by the Legal Service of the draft reply
•
Examination by the Information Working Party of the proposed draft reply.
•
Approval by COREPER (generally as an 'I' item).
•
Adoption by Council acting by simple majority (generally as an 'A' item).
The decision is taken by the Council.
Statutory remedies
In the event of a partial access or a refusal of access, the applicant may institute court proceedings
(within 2 months) against the Council or make a complaint to the Ombudsman (within 2 years).
This is also the case, if the Council fails to reply within the prescribed time limit.
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LDH/SBL/04092018
ANNEX III
Policy area of requested
2013
2014
2015
2016
2017
documents
Agriculture, Fisheries
3%
4,9%
3,6%
5,2%
4,9%
Internal Market
11,7%
6,7%
8,3%
5,3%
6,4%
Research
2,1%
1,1%
0,1%
0,3%
0,2%
Culture
0,5%
0,4%
0,4%
0,9%
0,9%
Education/Youth
0,6%
0,5%
0,5%
0,5%
0,8%
Competitiveness
1,1%
1,1%
0,4%
0,5%
1,7%
Energy
2%
1,3%
0,9%
0,7%
3,8%
Transport
2,6%
3,9%
3,3%
6,5%
4,2%
Environment
12,6%
13,1%
8%
11%
13,7%
Health and Consumer
4,5%
6,1%
5,2%
4,7%
2,8%
P t ti
Economic and Monetary Policy
8,7%
4%
8,5%
8,3%
9,4%
Tax Questions – Fiscal Issues
3,7%
4,2%
4,3%
6,5%
5,7%
External Relations – CFSP
8,1%
10,6%
12,7%
10,2%
10,2%
Civilian Protection
0,8%
0,6%
0,3%
0,5%
0,5%
Enlargement
0,4%
0,4%
0,6%
0,7%
0,5%
Defence and Military matters
2,5%
0,8%
1,4%
1%
1,1%
Assistance for Development
0,4%
0,1%
0%
0%
0,2%
Regional Policy and
0,1%
0,3%
0%
0,1%
0%
Economical/Social Cohesion
Social Policy
5,2%
5,1%
4,1%
3,5%
4,1%
Justice and Home Affairs
16,8%
23,4%
27,4%
19,1%
15,9%
Legal questions
5,1%
3,6%
2,2%
3,5%
3,4%
Functioning of the institutions
2,8%
2,8%
3,3%
6,2%
2,8%
Financing of the Union
0,4%
0,2%
0,1%
0,1%
0%
(Budget, Statute)
Transparency
0,5%
0,5%
0,5%
0,5%
0,7%
General policy questions
1,1%
1,8%
1,6%
1,3%
1,2%
Parliamentary Questions
0,7%
0,5%
1,1%
0,9%
0,7%
Various
0,1%
0,2%
0%
0%
1,77%
BREXIT
2,42%
LDH/SBL/04092018