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Науково-практична Інтернет-конференція 20.04.2016 - Секція №2
Transparency is the fundamental principle of the European Union on the same level as proportionality, supremacy and direct effect of the law and is guaranteed by the Article 1 of the EU Treaty, which defines that the decisions are taken «as openly as possible» in the European Union [4]. The principle of transparency requires access to official documents held by the European Union institutions, knowledge of the decision-making process and giving reasons for their decisions to the European citizens. Transparency is a crucial problem of the European Union institutions and citizens are not satisfied with the level of transparency of the decision-making bodies of the European Union, which results «democratic deficit» on the European Union level [1, p. 8]. 
The right of access to official documents is not an absolute human right and may be restricted in some circumstances prescribed by the Regulation 1049/2001. The purpose of the exceptions is to ensure a proper balance between the public and private interest. Exceptions of the right to access official documents are evaluated in the light of three tests: harm test, balancing test and the requirement of approval. Harm test means that access to information may be limited when openness will cause harm to some interests. Balancing test outweighs the public interest of transparency and interest defined by the restriction, and the requirement of approval implies personal information, which may be disclosed after receiving an approval from the subject of this information. There are three types of exceptions, which applied to the right of access to official documents in accordance to the Regulation 1049/2001 [5].
Firstly, there are exceptions, which are subject to a harm test, and the interests, which may undermine by the disclosure of the information, public security, defense and military matters, international relations, financial, monetary and economic policy of the Community or a Member State as well as privacy and integrity of the individual.
Secondly, the access to documents may be refused if its disclosure would undermine commercial interests of a natural or legal person, court proceedings and legal advice and the purpose of inspections, investigation and audits, but the institutions should use the balancing test in the decision-making process to evaluate the exceptions in the light of the public interest in disclosure.
The third type of exception concerns to internal documents and stricter harm test applies to these documents, which requires that the documents should be closed if its disclosure seriously undermines the decision-making process.
Besides the exceptions, the Regulation 1049/2001 defines a different regime for access to information about sensitive documents. The category of sensitive documents is created for the purpose of protection of the interests of the European Union or its Member States in the areas of public security, defense and military matters and is regulated by separate rules adopted by the EU institutions. The sensitive documents classified as «Top Secret», «Secret» or «Confidential» in accordance with the rules of the EU institutions taking into account its content. Access to sensitive documents based on the need-to-know principle, which means that only persons who need to know certain information in order to exercise their duties authorized to have this information [5].
The effective enjoyment of right of access to information also depends on the procedural rules defined for implementation of the right in practice. Accordingly, to Regulation 1049/2001, application for access to a document should be submitted in any written form, including electronic, and should be sufficiently precise for institutions to identify the document. The EU institutions should send a response to the applicant within 15 working days whether they provide access to requested documents or refuse to its access with sufficient reasons [5].
In the case of total or partial refusal, applicant can submit a confirmatory application for reconsidering the application within 15 days and the institutions have a possibility to change its decision. If an applicant receives a negative answer to the confirmatory application, there are two remedies available. Firstly, the applicant can submit a complaint to the court against the institutions under Article 263 TFEU or make a complaint to the European ombudsman under Article 228 TFEU [3].
Deriving from the principle of transparency the EU institutions are obliged to provide some documents directly accessible to the public in electronic form or through a register, especially legislative documents, which are legally binding for the Member States. EU institutions are obliged to publish an annual report concerning the implementation of the right of access to documents for the members of the society.
The main areas of the complaints submitted to the European Ombudsman relates to the transparency of the European Union institutions and the right of access to official documents. The high number of complaints shows the implementation problem of the right of access to information in practice in the EU institutions. 
The European Ombudsman discusses the cases of the right of access to documents in two different dimensions: procedural issues and substantive issues [2, p. 4].
The cases concerning procedural issues mainly related to the late registration of the requests, complying with the applicable time limits and failure to provide reasons of the decision. Another procedural issue concerns defining fees for the requested documents, which should be regulated by the EU institutions and they should find a sufficient solution for defining reasonable fee in case of very large and numerous documents. The European Ombudsman also pays attention to the language policy of the European Union institutions and defined that the EU institutions should ensure access to information to the citizens in their own language. In case of procedural maladministration, the European ombudsman prepares a critical remark to the EU institutions and request to change the practice [1, p. 29].
The cases concerning substantive issues mainly related to the exceptions of the right of access to information defined by Regulation 1049/2001. The analysis of the EU Ombudsman’s case-law shows that the European Ombudsman discuss the exceptions concerning international relations; court proceedings and legal advice; inspections, investigations and audits; the institutions’ decision-making process. In case of refusal of access to information based on exception of international relations, the European Ombudsman took into account the sensitive nature of the issue and grants a wide discretion to EU institutions to determine whether disclosure determine the public interest. However, the European Ombudsman required the detailed inspection of the document and valid arguments why the disclosure should damage the negotiation process or interests of the parties [2, p. 6]. The exception concerning access to the legal advice may be accepted if the European institutions will show that the refusal will protect the interest to receive useful legal advice from its Legal Service. The access to information concerning investigation held by the EU institutions is very sensitive and highly requested area by the citizens. The European Ombudsman interpreted in several cases that the European institutions should provide to distinguish the secret and public part of the document and provides the partial access to documents where it is possible. It may works in case of information of the investigation or existence of high public interest in this area. In cases of substantive issues, the European Ombudsman may make a critical remark or draft recommendation to the European Institutions depending on the nature of the maladministration [1, p. 64].
As a conclusion, the European Ombudsman makes a huge work in the area of improving transparency and effective implementation of the right of access to information in the EU institutions. 
 
References:
1. Annual Report of the European Ombudsman, 2011. – 78 p.
2. Nino Tsukhishvili.  The right of access to information in the European Union institutions and the role of the European Ombudsman in this process, 2013. – 10 p.
3. Consolidated version of the Treaty on the Functioning of the European Union.
4. Consolidated version of the Treaty on European Union.
5. Regulation 1049/2001 {jcomments on}
 
 

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