Right of access to documents – what does it mean?
The right of access to documents was introduced with the Amsterdam Treaty in 1999. Under this framework, on 30 May 2001, the Council and the European Parliament adopted Regulation 1049/2001 on public access to European Parliament, Council and Commission documents.
Following the entry into force of the Treaty on the Functioning of the European Union (TFEU), this right of access to documents extends to documents of all of the Union’s institutions, bodies, offices and agencies (Article 15). The right of access to documents is further underpinned in Article 42 of the Charter of Fundamental Rights of the European Union.
In the context of EDA, the Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European Defence Agency provides under Article 30 that the rules laid down in Regulation (EC) No 1049/2001 shall apply to documents held by the Agency.
The principles governing the right of access to documents are the following:
- General, unconditional right of access for everyone, meaning that applicants do not need to justify their requests.
- Right of access applies to all documents which EDA holds relating to policies, activities and decisions falling within the responsibility of EDA. Access to these documents can only exceptionally be refused (for more information, see below).
- Broad definition of the concept of documents: any medium is included.
- Exceptions may only be made after evaluation on a case-by-case basis.
- Widest possible access to documents. The possibility of partial access is always considered.
EDA policy on access to documents
The EDA policy on access to documents was revised on 7 June 2019 and describes the rules the Agency applies to grant access to the documents it holds.
Who can request access to documents?
Citizens of the EU and natural or legal persons residing or having their registered office in an EU Member State have the right of access to EDA documents under Article 2(1) of Regulation (EC) No 1049/2001. This right to access concerns documents held by EDA (that is to say, documents drawn up or received by EDA and in its possession).
In accordance with its policy, the Agency could grant access under the same conditions to any natural or legal person not residing or not having a registered office in a Member State.
How to submit a request?
The EDA Register of documents is on its website under EDA DOCUMENTS and provides access to documents that are already publicly available.
If, however, an EDA document has not been published yet, a request for access can be made. An unpublished document is any text (written on paper or stored in electronic form or as a sound, visual or audio-visual recording) which is related to the EDA’s areas of activity and kept by it, but which has not been made public.
Applications shall be made in writing and sent to the Agency by email to email@example.com.
How long will it take?
The procedure can take up to 15 working days from registration of the application. Exceptionally, this deadline can be extended by another 15 days.
When will access be granted, when will it be refused?
The principle is that the widest possible access to documents held by EDA should be granted. However, access will be refused where disclosure would undermine the protection of the public interest or the privacy and integrity of individuals. The public interest is in particular invoked where the fulfilment of EDA’s tasks is at stake or could be endangered (defence and military matters). Where an exception is justified, it will be examined to see whether it applies to the whole document or whether partial access to a document can be granted.
What if my request to access to documents is (partially) refused?
There is a possibility to make a ‘confirmatory’ application to the Chief Executive of EDA also to be sent by email to firstname.lastname@example.org. Processing confirmatory applications can also take up to 15 working days, and in exceptional cases, the deadline could be extended once by another 15 working days.
Means of redress
A confirmatory application is to be submitted within 15 working days of the date on which a response to the initial application has been received to EDA Chief Executive.
A decision on a confirmatory application may be challenged either before the Court of Justice of the EU or before the European Ombudsman in accordance with Articles 263 and 228 of the TFEU respectively.