Ref. Ares(2016)4162935 - 05/08/2016
Access to documents
ARIANE II – BASIC Training
UNIT SG/B4 (Transparency)
Programme
•
1. Legal framework
•
2. Scope of Regulation 1049/2001
•
3. Principles and exceptions
•
4. Procedures
•
5. Further information
3. Principles and
exceptions
Principles
Principles
•
Principle of transparency: documents are accessible unless an
exception applies (the exceptions are listed in Art. 4 of
Regulation 1049/2001 )
• Exceptions to be
construed strictly
•
Concrete and individual examination of documents
•
No exempt categories, not even classified or sensitive
documents (Art. 9 of Regulation 1049/2001)
• Exceptions apply
as long as protection is justified, up to 30
years
Exceptions
Types of exceptions
•
Absolute exceptions
Single harm test
•
Relative exceptions
Double test:
Harm ?
Overriding public interest in disclosure ?
Absolute exceptions
Article 4(1) of Regulation 1049/2001
•
Public interest as regards ….
Public security
Defence and military matters
International relations
Financial, monetary or economic policy of the EU or a
Member State
•
Privacy and integrity of the individual
In case of harm, deny access!
Exceptions
Privacy and integrity of the individual
Art. 4(1)(b) of Regulation 1049/2001
When access request under Reg. 1049/2001 covers personal
data,
Reg. 45/2001 becomes applicable in its entirety
Protection of personal data in practice:
Personal data, including of all Commission staff (with the
exception our senior management) is systematically redacted!
* Consult the
Guidance note on Commission Staff Names
Relative exceptions
Art. 4(2) and 4(3) of Regulation 1049/2001
• Commercial interests
• Legal advice and court proceedings
• The purpose of inspections, investigations and audits
• Decision-making process
Balance harm against the public interest in disclosure
Exceptions
Protection of commercial interests
Art. 4(2)(1) of Regulation 1049/2001
Access refused if harm to the competitive position of the
company or its reputation or its intellectual property rights
unless overriding public interest in disclosure
* Consult the
Guidance note on Procurement Documents
Exceptions
Court proceedings and legal advice
Article 4(2)(2) of Regulation 1049/2001
Court proceedings: exception applies mainly to
documents
drafted for the proceedings,
such as application, defence, reply,
rejoinder
General presumption of non-disclosure: Case API (C-514/07)
Legal advice: exception applies to
legal opinions
• Consult
the Commission's Legal Service
unless overriding public interest in disclosure
Exceptions
Inspections, investigations, audits
Article 4(2)(3) of Regulation 1049/2001
Access is refused if disclosure would undermine the
purpose of
inspections, investigations or audits
unless overriding public interest in disclosure
This exception applies to
on-going investigations!
Exceptions
Inspections, investigations, audits
General presumption of non-disclosure exists for:
(in these cases
no individual assessment of documents is
required!)
•
State aid investigation (Case TGI C-139/07P);
•
Merger investigations (Cases Odile Jacob C-404/10 P and
Agrofert C-477/10 P
•
Cartel investigations (Case Netherlands/Commission T-380/08)
•
Infringement investigations and EU Pilot (Case LPN C-514/11
P and C-605/11 P)
•
OLAF investigations (Case Catinis T-447/11)
* Consult the
Guidance note on closed infringements
Exceptions
Decision-making process
Article 4(3) of Regulation 1049/2001
Access refused if disclosure would
seriously undermine the
decision-making process
unless overriding public interest in disclosure
1st paragraph: documents drawn up for internal use or received
before the decision has been taken
2nd paragraph: documents containing
opinions for internal use
even
after the decision has been taken
Exceptions
legislative
closed
open
administr.
4. Procedures
Initial applications: treatment
•
Step 5: Conduct the necessary consultations (unless it
is clear that the document shall or shall not be disclosed)
• - for the Commission documents consult the relevant
services;
• - for Member States’ documents consult the national
authorities concerned (Article 4(5) of Regulation
1049/2001);
• - for third-party documents consult the author of the
document (Article 4(4) of Regulation 1049/2001);
• - for documents of other EU institutions consult them
accordingly (Memorandum of Understanding).
•
Objections cannot be overruled at the initial stage!
Initial applications: treatment
•
Step 6: Assess all identified documents
How? Conduct a
concrete and individual examination of the
content of the documents and perform a
'harm test' by
checking if disclosure would undermine one of the interests
protected under Art. 4 of Regulation 1049/2001.
Exception: unless a general presumption of non-disclosure
applies to the documents requested.
Procedures
Initial applications: treatment
Step 7: Consider whether granting partial access is
possible
• If only
parts of the document are covered by exceptions,
the
remaining parts must be released.
• Partial access is granted if
meaningful!
• Article 4(6) of Regulation 1049/2001
Initial applications: treatment
•
Step 8: Draft a reply to the applicant
• In cases of negative (or partially negative) replies you
should duly
motivate your refusal on the basis of the
exceptions provided for in Art. 4 of Regulation 1049/2001.
• The question of a
possible partial access should always
be addressed.
Initial applications: treatment
•
Step 9: If you use one of the exceptions provided for in
Art. 4(2) of Regulation 1049/2001, i.e. the relative
exceptions, do not forget to …
•
assess whether there is an overriding public interest
in disclosure
•
Include the relevant justifications in your reply!
Procedures
Initial applications - treatment
Step 10: For partially negative and negative replies, make sure
that they are:
•
Signed by Director-General (Articles 3 and 10 of
Implementing Decision). If the reply is positive or when the
only parts redacted are personal data, it may be signed at
Head of Unit level.
• Applicant is informed
of right to request a review (Article
7(1) of Regulation 1049/2001)
