Openness is an important principle on which the European Union is founded. Article 1 of the Treaty on European Union envisages a European Union in which "decisions are taken as openly as possible…". Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents sets out a code for access to documents held by these institutions. It is the EU equivalent of the freedom of information regimes found in the UK and other states. The European Commission has proposed a revision of this Regulation. This report is part of our ongoing scrutiny of the proposal.
We highlight the extent to which the proposal would preclude disclosure both of documents submitted to courts in the course of litigation and documents arising in the course of investigations, even in the face of a strong public interest in disclosure. We conclude that such an exclusion is, in principle, justified in respect of court documents where the court itself can make provision for disclosure, and recognise the Government's concern that information provided by third parties in the framework of an investigation should remain confidential.
A particularly controversial issue is how far confidentiality is required for formulating policy (particularly to ensure that policy makers receive frank and open advice) and for negotiating legislation. We look at the relevant provisions of the proposal, particularly in the light of recent judgments by the European Court of Justice, and highlight the differences in the approaches of the European Parliament and the Government. We recommend that these documents should not be given absolute immunity from disclosure but should be protected subject to any overriding public interest.
We assess the effect of the proposal to amend the rules on disclosure by the institutions of documents which they hold but which originate from Member States and conclude that it would significantly reduce the existing right of access.
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