Council
decision (20.12.93) on public access to Council documents
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Amendment
to the 1993 Decision on public access to Council documents and to the decision,
in December 1999 to include references to classified documents on the public
register
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THE
COUNCIL,
Having regard to the Treaty establishing
the European Community, and in particular Article 151 (3) thereof,
Having
regard to its Rules and Procedure, and in particular Article 22 thereof,
[Note 1]
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THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing
the European Union, and in particular Article 207 thereof,
Having
regard to its Rules of Procedure, and in particular Article 10 thereof,
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Whereas
on 6 December 1993 the Council and the Commission approved a code of conduct
concerning public access to Council and Commission documents, reaching
common agreement on the principles which must govern such access;
Whereas provisions should be adopted
for the implementation of those principles by the Council;
Whereas these provisions are applicable
to any document held by the Council, whatever its medium, excluding documents
written by a person, body or institution outside the Council;
Whereas the principles of allowing
the public wide access to Council documents, as part of greater transparency
in the Council's work, must however be subject to exceptions, particularly
as regards protection of the public interest, the individual and privacy;
Whereas, in the interests of rationalization
and efficiency, the Secretary-General of the Council should sign on behalf
of the Council and on its authorization replies to applications for access
to documents, except in cases where the Council is called upon to reply
to confirmatory application;
Whereas this Decision must apply
with due regard for provisions governing the protection of classified information,
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Whereas:
(1)
The European Council, meeting in Helsinki in December 1999, provided political
impetus for the development of the European Union's means for military
and non-military crisis management within the framework of a strengthened
European security and defence policy.
(2) In this context, the Council must
introduce rules guaranteeing effective protection of documents concerning
these matters disclosure of which could harm the essential interests of
the Union or of one or more of its Member States. For this reason, under
the Decision of the Secretary-General of the Council/High Representative
for Common Foreign and Security Policy of 27 July 2000 on measures for
the protection of classified information applicable to the General Secretariat
of the Council, such documents must be classified as TRES SECRET/TOP SECRET
or SECRET or CONFIDENTIEL.
(3) The seriousness of the consequences
of disclosure of such documents, in particular with regard to the prospective
development of the new strengthened European security and defence policy,
and the necessary confidence which those involved must be able to have
at a crucial moment in the development of this policy, justify the exclusion
of such documents from the scope of the rules on public access to Council
documents until such time as they are declassified, or declassified in
accordance with the rules referred to in recital (2) concerning classification
of documents.
(4) The exchange of information in
the particularly sensitive areas referred to in recital (1), which is one
of the features of the development of this new policy, will work only if
the originator of such information can be confident that no information
put out by him will be disclosed against his will. It is therefore necessary
to provide that a Council document from which conclusions may be drawn
regarding the content of classified information put out by a natural or
legal person, a Member State, another Community institution or body or
any other national or international body may be made available to the public
only with the prior written consent of the author of the information in
question.
(5) With the same objective of reinforcing
protection of the confidentiality of information when scrutinising documents
to which access has been requested, it should be provided that measures
are taken to ensure compliance with the principle that access to classified
documents must be reserved for those persons who are authorised to take
cognisance thereof.
(6) Since the security and defence
of the Union or of one or more of its Member States or military and non-military
crisis management represent public interests which Decision 93/731/EC [1]
is intended to protect, this should be specifically mentioned among the
reasons justifying refusal of access to a document,
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HAS
DECIDED AS FOLLOWS: |
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HAS
DECIDED AS FOLLOWS:
Article 1
The
provisions of Decision 93/731/EC is hereby amended as follows:
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Article
1
1.The public shall have access to
Council documents under the conditions laid down in this Decision.
2."Council document" means any written
text, whatever its medium, containing existing data and held by the Council,
subject to Article 2 (2). |
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Article
1(1) shall be replaced by the following:
"1. The public shall have access
to Council documents, except for documents classified as TRES SECRET/TOP
SECRET, SECRET or CONFIDENTIEL within the meaning of the Decision of the
Secretary-General of the Council/High Representative for Common Foreign
and Security Policy of 27 July 2000 on measures for the protection of classified
information applicable to the General Secretariat of the Council, on matters
concerning the security and defence of the Union or of one or more of its
Member States or on military or non-military crisis management, under
the conditions laid down in this Decision.
Where a request for access refers
to a classified document within the meaning of the first subparagraph,
the applicant shall be informed that the document does not fall within
the scope of this Decision.
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Article
2
1. An application for access to a
Council document shall be sent in writing to the Council. It must be made
in a sufficiently precise manner and must contain information enabling
the document or documents requested to be identified. Where necessary,
the applicant shall be asked for further details.
2.Where the requested document was
written by a natural or legal person, a Member State, another Community
institution or body, or any other national or international body, the application
must not be sent to the Council, but direct to the author.
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The
following paragraph shall be added to Article 2:
"3.
Without prejudice to Article 1(1), no Council document on matters concerning
the security and defence of the Union or of one or more of its Member States
or on military or non-military crisis management which enables conclusions
to be drawn regarding the content of classified information from one of
the sources referred to in paragraph 2 may be made available to the public
except with the prior written consent of the author of the information
in question.
Where
access to a document is refused pursuant to this paragraph, the applicant
shall be informed thereof."
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Article
3
1.The applicant shall have access
to a Council document either by consulting it on the spot or by having
a copy sent at his own expense. The fee shall be set by the Secretary-General.
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3.
Article
3(1) shall be replaced by the following:
"1.
The applicant shall have access to a Council document either by consulting
it on the spot or by having a copy sent at his own expense. The fee shall
be set by the Secretary-General/High Representative for Common Foreign
and Security Policy (hereinafter referred to as the "Secretary-General")."
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2.The
relevant departments of the General Secretariat shall endeavour to find
a fair solution to deal with repeat applications and/or those which relate
to very large documents.
3. Anyone given access to a Council
document may not reproduce or circulate the document for commercial purposes
through direct sale without prior authorization from the Secretary General.
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Article
4
1. Access to a Council document shall
not be granted where its disclosure could undermine:
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the protection of the public interest
(public security, international relations, monetary stability, court proceedings,
inspections and investigations),
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the protection of the individual and
of privacy,
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the protection of commercial and industrial
secrecy,
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the protection of the Community's financial
interests,
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the protection of confidentiality as
requested by the natural or legal person who supplied any of the information
contained in the document or as required by the legislation of the Member
State which supplied any of that information.
2. Access to a Council document
may be refused in order to protect the confidentiality of the Council's
proceedings.
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4.
The first indent of Article 4(1) shall be replaced by the following:
"- the protection of the public interest
(public security, the security and defence of the Union or of one or
more of its Member States, military or non-military crisis management,
international
relations, monetary stability, court proceedings, inspections and investigations)," |
Article
5
The Secretary-General shall reply
on behalf of the Council to applications for access to Council documents,
except in the cases referred to in Article 7 (3), in which the reply shall
come from the Council. |
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5.
The following sentence shall be added at the end of Article 5:
"The Permanent Representatives Committee
shall see to it that the necessary measures are taken to ensure that the
preparation of such decisions is entrusted to persons authorised to take
cognisance of the documents concerned."
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Article
6
Any application for access to a Council
document shall be examined by the relevant departments of the General Secretariat,
which shall suggest what action is to be taken on it.
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Article
7
1. The applicant shall be informed
in writing within a month by the relevant departments of the General Secretariat
either that his application has been approved or that the intention is
to reject it. In the latter case the applicant shall also be informed of
the reasons for this intention and that he has one month to make a confirmatory
application for that position to be reconsidered, failing which he will
be deemed to have withdrawn his original application.
2. Failure to reply to an application
within a month of submission shall be equivalent to a refusal, except where
the applicant makes a confirmatory application, as referred to above, within
the following month.
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3.
Any decision to reject a confirmatory application, which shall be taken
within a month of submission of such application, shall state the grounds
on which it is based. The applicant shall be notified of the decision in
writing as soon as possible and at the same time informed of the content
of Articles 138e and 173 of the Treaty establishing the European Community,
relating respectively to the conditions for referral to the Ombudsman by
natural persons and review by the Court of justice of the legality of Council
acts.
4. Failure to reply within a
month of submission of the confirmatory application shall be equivalent
to a refusal.
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6.
In Article 7(3), the references to Articles 138e and 173 of the
Treaty establishing the European Community shall be replaced by references
to Articles 195 and 230 of the Treaty establishing the European Community.
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7.
The following sentence shall be added at the end of Article 7(5):
"The extension may be for two
months where it is necessary to consult a source other than the Council,
as provided in Article 2(3)."
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Article
8
This Decision shall apply with
due regard for provisions governing the protection of classified information.
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Article
9
This Decision shall be reviewed
after two years of operation. In 1995 the Secretary-General shall submit
a report on the implementation of this Decision in 1994 and 1995, in preparation
for that review.
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Article
10
This Decision shall take effect
on 1 January 1994.
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Article
3
The Secretary-General of the
Council shall take necessary measures to ensure the implementation of this
Decision.
Article 4
This Decision shall take effect as
from the day of its publication in the Official Journal of the European
Communities.
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