The European institutions are subject to specific rules regarding registers and access to their documents. To guarantee transparency, political and administrative acts, which still has ample room for improvement. A brief vademecum follows.
1) European institutions, introduction
The main institutions European are the European Parliament, the Council (Council of the European Union), the European Council (European Council) and the European Commission. In addition to the General Court and the Court of Justice of the EU, the European Court of Auditors and the European Central Bank (ECB).
Parliament and Council exercise the function of co-legislation, defining and implementing the policies and legislation of the Union. The European Council – not to be confused with the Council of Europe (Council of Europe), which is not part of the EU institutions – is in turn attended by the leaders of the Member States, who meet every three months to define priorities and general political orientations.
The European Commission is the executive body and exercises a technical function, through proposals for new strategies and regulations to be presented to the Parliament and the Council. It also has the role of guarantor of the Treaty and must therefore verify the correct application of EU rules in the various Member States.
Figure 1 – Functions and interactions of the main EU institutions (source: European Parliament)
2) Access to documents, the rights
The access to documents is defined by the Treaty on the Functioning of the European Union (TFEU), where it is provided that ‘any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium’[ie physical or digital, ed.]. (1)
Every institution has internal regulations that define the procedures for implementing its activities, in line with the principles and objectives of the Treaties. All internal regulations must therefore guarantee the widest possible access to documents, while taking into account the limits that are essential to preserve the proper functioning of the institutions and the protection of public and private interests.
2.1) Internal regulations of the main European institutions
Internal regulations of the first institutions mentioned in the introduction, with regards to access to documents, provide as follows:
– European Parliament. Documents drawn up or received by the office holders of the Parliament, bodies, committees, interparliamentary delegations or by the Secretariat are present in the register, also in electronic form. If they comply with the Regulation, documents of individual Members or political groups may also be included; (2)
– Council. The General Secretariat is responsible for public access to the register of non-classified documents, including on the Internet. Some documents are made accessible to the public directly (i.e. adopted texts to be inserted in the Official Journal); (3)
– European Council. The decision to make public certain documents relating to the results of votes, statements in the minutes and specific points relating to the adoption of a decision shall be left to the General Secretariat. The conditions laid down for the Council shall apply mutatis mutandis to the European Council; (4)
– European Commission. All documents processed must be registered and identified to allow their identification and classification, based on the level of confidentiality. Requests for access to documents contain detailed provisions, based on the legislation in force. (5)
3) Registers
The various institutions may have multiple registers and must allow access to the related documents:
– European Parliament. In addition to the register, other sources of information are the Legislative Observatory (OEIL) and the IPEX platform for the exchange of information with Member States (6,7,8);
– Council and European Council. In addition to the register, the conclusions of the European Council are also available (9,10);
– European Commission. The Commission has two registers, one for direct document searches (RegDoc), while the Electronic Access to Commission Document (EASE) allows consultation and request access to documents (11,12).
The powers attributed to the Commission to issue implementing acts and delegated acts are linked to the exercise of ‘comitology’ – that is, control by committees made up of representatives of the Member States – and to the prior consultation of expert groups on the other. To the above-mentioned registers are therefore added those relating to committees and expert groups, as well as implementing and delegated acts (13,14,15).
4) Request for documents access
Regulation (EC) No 1049/2001 defines the modalities for sharing and adopting restrictions or limitations on documents of the institutions, which can be made accessible in written or electronic form. At the request of citizens and legal persons based in the EU, as well as subjects coming from third countries. (16)
4.1) Requests for access to documents
Access applications must be submitted in written form, including in electronic format, in a manner sufficiently precise to enable identification of the requested document or documents.
The exam of the applications, with a favorable outcome (full or partial access to the document) or negative, must be examined within 15 days. With a possible extension of 15 days, if the documents are voluminous or numerous. In this case, the institution may also contact the applicant to propose a compromise (fair solution).
In case of favorable outcome, access may occur through on-site consultation or the release of a physical copy (with possible printing and shipping costs) or electronic copy. Preference is given to existing versions and formats, taking into account the applicant’s preferences. In the case of disclosures already made and more easily accessible, the institution may simply describe the methods for ensuring such access.
4.2) Motivated refusals
Refusal of access to one or more documents, by the European institutions, is foreseen – and must in any case be motivated – in cases where disclosure could cause possible negative consequences in the following areas:
– public interest, with regard to public security, defence and military matters, international relations, financial, monetary or economic policy of the EU or of a Member State;
– private life and integrity of an individual, in light of the General Data Protection Regulation (GDPR);
– commercial interests of natural or legal persons, including intellectual property;
– legal proceedings and legal advice;
– objectives of inspection, investigation and audit activities;
– documents prepared for internal use by an institution, or received by it, where disclosure could seriously undermine its decision-making process.
Third parties must be consulted on aspects of public interest or privacy to assess the application of the exceptions, while Member States can directly ask the institutions not to disclose documents without prior agreement.
Access restrictions to documents apply for a maximum period of 30 years, except for aspects of private life, commercial interests and sensitive documents.
4.3) Refusal limits and restrictions
The applicant may nevertheless oppose the refusals of access to documents:
-the existence of an overriding public interest in disclosure, with the burden of demonstrating its existence
-the request to limit the restriction to only some parts of the document. So that the remaining parts can be disclosed.
4.4) Confirmation requests
The requests rejected or without a response within the deadlines provided may constitute the subject of a request for confirmation by the applicant within 15 days of the outcome received. Within the same terms (except for the additional 15 days for bulky or numerous documents), the applicant must receive a written response regarding the new outcome.
In case of a new refusal or failure to respond within the deadlines set, the European institutions must inform the applicant of the alternatives available, such as initiating a judicial appeal and lodging a complaint with the European Ombudsman ( ombudsman).
4.5) Sensitive documents
Sensitive documents are documents that come from institutions, agencies, Member States, third countries or international bodies classified as ‘Top Secret’, ‘Secret’ o ‘Confidential’ as they are essential for protection in the areas of public safety, defense and military matters.
These documents may be included in the registers only with the consent of the originators. Their initial access and the submission of confirmation requests is restricted to those authorised to come into possession of this type of information.
5) Annual reports of the Commission
Every year, the European Commission publishes a report on the implementation of Regulation (EC) No. 1049/2001, which summarises the main elements relating to the provision of information by the institution itself, and statistics on the number and type of documents requested, rejected requests and confirmatory applications. (17)
The 2023 report provides evidence of the administrative problems related to the application of the aforementioned regulation. The european Ombudsman, in fact, has launched 96 investigations, finding 12 cases of maladministration. More recently, there was a complaint filed by an NGO for the lack of access to documents relating to the new regulation on artificial intelligence. (18)
Court of Justice of the European Union (CJEU), in turn, has published four judgments to clarify both the application of the exceptions (see paragraph 4.2 above, reasoned refusals) and the concept of ‘overriding public interest’. 14 judgments and orders of the General Court in Luxembourg have also addressed these aspects.
6) Ask the EU
AsktheEU.org is an unofficial EU website managed by two non-profit associations (NGOs), Access Info Europe and mySociety. Interested parties can use it to request access to documents at the European institutions, as well as to submit confirmatory requests in cases of failure to respond or a negative outcome. (19)
The sharing of information – in compliance with applicable regulations, including information on privacy as well as specific information (i.e. environmental information, pursuant to Directive 2003/4/EC and Regulation (EC) No. 1367/2006, referring to the Aarhus Convention) – is also useful to officials of the various institutions, where the same requests for access to documents are submitted several times.
The dysfunction of the Commission’s procedures, moreover, is demonstrated in a document published by AsktheEU.org. (20) Where it is shown how the same inputs can lead to varied outputs. In addition to the poor accessibility of the system, the sometimes ineffective text search, the discrepancies between RegDoc and EASE.
7) Provisional conclusions
The instruments for access to registers and documents of the European institutions are still dysfunctional, in the case of registers. And requests for access to documents often receive unsatisfactory and late responses.
Transparency therefore remains unrealistic, especially when the institutions do not recognise the prevailing public interest in the disclosure of data over hypothetical commercial interests of private individuals. (21)
Our FARE (Food and Agriculture Requirements) team is available to those who need to perform more in-depth analysis. Also in the areas of research projects, technical-scientific and legal consultancy.
Dario Dongo and Andrea Adelmo Della Penna
Footnotes
(1) TFEU, Article 15(3)
(2) European Parliament 2024-2029. Rules of procedure – 10th legislature. 10.7.24 https://tinyurl.com/2v3a6zcn
(3) Council Decision adopting the Council’s Rules of Procedure. Latest consolidated version 1.1.24 https://tinyurl.com/y9jptwn7
(4) European Council Decision of 1 December 2009 adopting its Rules of Procedure https://tinyurl.com/36ecjvpy
(5) Rules of Procedure of the Commission [C(2000) 3614] https://eur-lex.europa.eu/eli/proc_rules/2000/3614/oj
(6) European Parliament’s public register website https://tinyurl.com/37kcmpjk
(7) European Parliament, Legislative Observatory https://tinyurl.com/bk99btvw
(8) IPEX https://tinyurl.com/49uc9crn
(9) European Council. Document register https://tinyurl.com/bdd4w6wz
(10) European Council adopts conclusions https://tinyurl.com/t3dpynch
(11) Register of Commission Documents https://tinyurl.com/p8df5a4s
(12) European Commission. Request a Commission document https://tinyurl.com/2nuka64z
(13) Comitology Register https://tinyurl.com/4csxvmfz
(14) Register of Commission Expert Groups https://tinyurl.com/354k99s8
(15) Register of delegated and implementing acts https://tinyurl.com/mtdsvdrv
(16) Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents https://tinyurl.com/3p22b66p
(17) Annual reports from the Commission on the application of Regulation 1049/2001 https://tinyurl.com/237ewpvw
(18) European Ombudsman (case 318/2024/TM). The European Commission’s refusal to give public access to documents concerning the proposal for an Artificial Intelligence Act (AI Act) https://tinyurl.com/3pvkdnd5
(19) Get answers from EU Institutions. AskTheEU.org https://www.asktheeu.org/
(20) Request a Commission document https://tinyurl.com/mr3hcj8k
(21) The Europe Direct information services, on the other hand, tend to provide timely and precise answers, albeit within the limits of the available expertise. See Europe Direct – answering your questions about the EU https://tinyurl.com/4vm5wc2m
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in Food Technologies and Biotechnologies, qualified food technologist, he follows the research and development area. With particular regard to European research projects (in Horizon 2020, PRIMA) where the FARE division of WIISE Srl, a benefit company, participates.
