Public Access to Documents (PAD)

According to Article 15 of the Treaty on the Functioning of the European Union, citizens and residents of EU countries have a right of access to documents of the Union’s institutions, bodies, offices and agencies, subject to the principles and conditions to be determined by means of regulations adopted under the ordinary legislative procedure. Regulation (EC) No 1049/2001 applicable to European Parliament, Council and Commission, including EU Agencies such as Frontex, sets out the general principles and the limits governing the right of access to the documents of these three institutions. Under Article 11 of this regulation, each institution shall provide public access to a register of documents in electronic form. The European Parliament, the Council and the Commission have established their own public registers of documents, which can be accessed directly by EU citizens through their websites. Other EU bodies, such as the European Central Bank, the European Court of Auditors, the European Economic and Social Committee, the Committee of the Regions, the European Ombudsman, the European Data Protection Supervisor and the agencies, are also subject to the principle of public access to documents and have their own rules and registers.

The EP Public Register of Documents is conducive to transparency and democracy for EU citizens because it allows them to access a wide range of documents produced or received by the European Parliament, which is the legislative body of the EU directly elected by its citizens. By accessing these documents, citizens can learn more about the work and activities of the Parliament, such as its legislative proposals, debates, resolutions, reports, etc. This can help them to understand the issues and policies that affect them, to hold the Parliament accountable for its decisions and actions, and to participate in the democratic process by expressing their opinions and preferences. The EP Public Register of Documents also facilitates the dialogue and cooperation between the Parliament and other EU institutions, national parliaments, civil society organisations, media and the general public, which can enhance the legitimacy and effectiveness of the EU governance.

The main concepts enshrined in Regulation 1049/2001 are:

●?????? The right of public access to documents: This is the main purpose of the regulation, which is to give the fullest possible effect to the right of public access to documents of the European Parliament, the Council and the Commission. This right is founded on Article 255(2) of the EC Treaty, which was introduced by the Treaty of Amsterdam in 1997. This right is significant because it enhances the transparency and accountability of the EU institutions and promotes the participation of citizens in the decision-making process. It also strengthens the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.

●?????? The definition of a document: This is the concept that determines the scope of the regulation, which is to apply to all documents held by the institutions, regardless of their format or medium. This definition is founded on Article 3(a) of the regulation, which states that a document is "any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audio-visual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility". This definition is significant because it covers a wide range of information that may be of interest to the public and ensures that the regulation is adaptable to the technological developments and the diversity of the institutions' work.

?●?????? The principle of widest possible access: This is the concept that guides the interpretation and implementation of the regulation, which is to grant the public the widest possible access to documents. This principle is found in Article 4(1) of the regulation, which states that "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". This principle is significant because it balances the right of access with the protection of certain public or private interests that may be harmed by disclosure, and ensures that the exceptions to access are interpreted and applied narrowly.

?●?????? The procedure for exercising the right of access: This is the concept that regulates the practical aspects of the right of access, such as the conditions, deadlines, fees, confirmatory applications, complaints and judicial remedies. This procedure is founded on Articles 6 to 9 of the regulation, which set out the rules for making and handling applications for access, as well as the means of redress available to the applicants. This procedure is significant because it facilitates the exercise of the right of access and guarantees that the applicants receive a prompt and reasoned response from the institutions.

?●?????? The direct access to documents: This is the concept that complements the procedure for exercising the right of access, which is to make documents directly accessible to the public through electronic means, such as registers, databases or websites. This direct access is founded on Article 11 of the regulation, which states that "the institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned". This direct access is significant because it increases the transparency and openness of the institutions and reduces the administrative burden of handling individual applications.

Some of the most recent requests for public access to documents are:

• The?Joint Declaration on EU legislative priorities for 2023 and 2024, which was signed by the Presidents of the European Parliament, the Council and the Commission on 15 December 2022. This document sets out the shared European vision for a stronger and more resilient Europe in the face of Russia’s aggression against Ukraine and other challenges, such as the climate crisis and the digital transition. It was made public after a request from a group of journalists and civil society organisations, who wanted to know more about the EU’s plans and actions for the next two years.

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• The?European Universities initiative, which is a flagship initiative of the European strategy for universities. It aims to create transnational alliances of higher education institutions, paving the way towards the universities of the future. It involves more than 500 higher education institutions in 60 European Universities alliances by mid-2024. It was made public after a request from a student association, who wanted to learn more about the opportunities and benefits of studying and researching in a European University.

• The?Home Page of the EP Public Register of Documents, which is a website that provides direct access to documents of the European Parliament, such as agendas, minutes, reports, resolutions, etc. It also allows users to make online applications for access to documents that are not directly accessible. It was made public after a request from a citizen, who wanted to follow the work and activities of the European Parliament more closely.

There are 45 European Union Commission agencies that have created a public register of documents that give access to documents that they create or process. These agencies cover a wide range of policy areas, such as health, environment, security, justice, transport, education, amongst many others.

There are several possible arguments that a European Union agency or institution, that does not deal with law enforcement issues, could use for not disclosing documents that they have processed, and access to these documents has been requested by a European Union citizen under regulation 1049/2001. Some of these arguments are:

• The disclosure of the document would undermine the protection of the public interest in the spheres of public security, defence and military matters, international relations, or the financial, monetary or economic policy of the Community or a Member State.
• The disclosure of the document would undermine the protection of the privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.
• The disclosure of the document would undermine the protection of commercial interests of a natural or legal person, including intellectual property, court proceedings and legal advice, or the purpose of inspections, investigations and audits.
• The document is covered by the obligation of professional secrecy, in particular the proceedings of the institutions and those relating to legal advice and litigation.
• The document reflects the opinions for internal use as part of deliberations and preliminary consultations within the institution concerned or between institutions, in particular during the decision-making process.
• The document is a third-party document, which means that it originates from an institution or body not covered by the regulation, or from a Member State, or from any other natural or legal person outside the institution, and the third party has not agreed to its disclosure.

These arguments are based on the exceptions to the right of access to documents, which are listed in Article 4 of Regulation 1049/2011. However, these exceptions are not absolute, and must be interpreted and applied narrowly, taking into account the public interest in disclosure and the principle of proportionality. Therefore, the institution or agency must justify its refusal to disclose a document by demonstrating that the disclosure would cause a specific and actual harm to one of the protected interests, and that this harm would outweigh the public interest in disclosure. The institution or agency must also state the reasons for its decision and inform the applicant of the means of redress available to challenge the decision.