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European Union: Proposed Amendments to Right of Information Law

(June 1, 2009) The law on the right of information or, in European Union (EU) terminology, public access to documents produced by EU institutions, is in the process of being amended. On March 11, 2009, the European Parliament introduced several amendments to the law – Regulation (EC) 1049/2001 of the European Parliament and of the Council of May 30, 2001 Regarding Public Access to European Parliament, Council and Commission Documents – including one on the notion of a “top secret” category of documents “whose unauthorized disclosure could harm the interests of the European Union or its member states.” The documents would range from “EU restricted” to “EU top secret,” and their confidentiality would be retained for a period of up to 30 years. (MEPS Agree “Top Secret” Category for EU Documents, EU OBSERVER, Mar. 11, 2009, available at http://euobserver.com/9/27757/?rk=1.)

Discussions on the proposed amendments are currently being held at the level of the Council of the EU. On May 8, 2009, the Council accepted some of the European Commission's proposals on the issue. For instance, on the exception to the right of access to documents whose disclosure could threaten the environment, the Commission added new language, such as “breeding sites of rare species.” It also clarified the concept of “overriding public interest” in disclosing a document, by stipulating that such an interest is deemed to exist where the information requested deals with “emissions into the environment.” (Council of the European Union, Proposal for a Regulation of the European Parliament and of the Council Regarding Public Access to European Parliament, Council and Commission Documents (recast) 9234/09, May 8, 2009, available at http://www.statewatch.org/news/2009/may/eu-access-reg-council-9234-09.pd
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; European Commission, Proposal for a Regulation of the European Parliament and of the Council Regarding Public Access to European Parliament, Council and Commission Documents, COM(2008) 229 final (Apr., 30, 2008), available at http://ec.europa.eu/transparency/access_documents/docs/229_en.pdf.)

Meanwhile, on May 11, 2009, several countries, including Denmark, Estonia, Finland, and Slovenia requested that the Commission delete a proposed revision of the Regulation that would extend access to documents on court proceedings to include arbitration and dispute settlement documents. (Council of the European Union, Proposal for a Regulation of the European Parliament and of the Council Regarding Public Access to European Parliament, Council and Commission Documents, 9716/09 (May 11, 2009), available at http://www.statewatch.org/news/2009/may/eu-access-reg-council-9716-09.pd
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.) However, the Commission also made reference in its proposed amendments to the Regulation to include access to information on proceedings before World Trade Organization trade panels. It remains to be seen what amendments will be included in the final Regulation.