Conselho da União Europeia Bruxelas, 25 de maio de 2021 (OR. en) 8005/21 LIMITE INF 103 API 54
NOTA PONTO "I/A"
de: Secretariado-Geral do Conselho
para: Comité de Representantes Permanentes/Conselho
n.º doc. ant.: 8003/21; 8004/21
Assunto: Acesso do público aos documentos
- Pedido confirmativo n.º 13/c/01/21
1. Envia-se em anexo, à atenção das delegações, um projeto de resposta do Conselho ao pedido confirmativo n.º 13/c/01/21, aprovado pelo Grupo da Informação mediante consulta escrita que terminou em 21 de maio de 2021, com o voto favorável de todas as delegações.
2. Convida-se pois o Comité de Representantes Permanentes a sugerir ao Conselho que, na sua próxima reunião:
– aprove, como ponto "A", o projeto de resposta anexo ao presente documento
– decida, em conformidade com o artigo 12.º, n.º 1, primeiro parágrafo, do Regulamento Interno do Conselho e com o artigo 1.º da Decisão (UE) 2021/454 do Conselho, que o Conselho recorra ao procedimento escrito para a adoção do documento acima referido se, devido às circunstâncias relacionadas com a COVID-19, o Conselho não tiver realizado reuniões formais até 4 de junho de 2021
ANEXO DRAFT REPLY ADOPTED BY THE COUNCIL ON xxxx
TO CONFIRMATORY APPLICATION 13/c/01/21, made by email on 19 April 2021
and registered on 20 April 2021,
pursuant to Article 7(2) of Regulation (EC) No 1049/2001, for public access to document 7920/03
The Council has considered the confirmatory application under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43) (hereafter referred to as "Regulation (EC) No 1049/2001") and Annex II to the Council's Rules of Procedure (Council Decision 2009/937/EU, OJ L 325, 11.12.2009, p. 35) and has come to the following conclusion:
1. On 2 March 2021, the applicant made an initial application to documents 6646/02, 7306/02,
11010/02, 11010/02 COR 1, 5609/03 DCL 1, 5802/03 DLC 1, and 7920/03.
2. On 19 April 2021, the General Secretariat of the Council (GSC) replied to this application by granting access to documents 6646/02 and 11010/02 COR 1 and partial access to documents 7306/02, 11010/02, 5609/03 DCL 1 and 5802/03 DLC 1. Access to document 7920/03 was refused pursuant to Article 4(1) (a) third intend of Regulation (EC) No 1049/2001 as the disclosure of the document would undermine the public interest as regards international relations.
3. On 19 April 2021, the applicant introduced a confirmatory application regarding document
7920/03. No reasons were put forward in this application.
4. The Council has carefully considered the confirmatory application. It has re-assessed, in full consideration of the principle of transparency underlying Regulation (EC) No 1049/2001, whether public access can be provided to the requested document.
I. CONTEXT OF THE REQUESTED DOCUMENT
5. Document 7920/03 contains an opinion of the Council Legal Service on visa requirements of holders of diplomatic, official-duty and other official passports. This opinion was issued as a response to a request made by the Visa Working Party about the procedure to be followed where a Member State wishes to exempt a holder of a diplomatic, official-duty or other official passport from a visa requirement even though a visa would normally be required for nationals of that country.
6. The opinion analyses the visa requirements for holders of diplomatic, official-duty or other official passport under Regulation (EC) No 539/20011 and Regulation (EC) No 789/2001,2 which was adopted one month later than Regulation (EC) No 539/2001.
7. Regulation (EC) 539/2001 provided for the full harmonisation as regards the third countries whose nationals were subject to the visa requirement for the crossing of Member States' external borders, and those whose nationals were exempted from that requirement. As this Regulation was substantially amended several times, it was object of a codification proposal which resulted in the adoption of Regulation (EU) 2018/1806.3
8. Regulation (EC) No 789/2001 detailed the implementing powers of the Council to update and amend the "detailed provisions and practical procedures for examining visa application in the
diplomatic missions and consular posts of Member States participating in the closer cooperation" (recitals 2 and 4). This regulation was repealed by Regulation (EC)
No 810/2009.4
1 Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ L 81, 21.3.2001, p. 1–7.
2 Council Regulation (EC) No 789/2001 of 24 April 2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for examining visa
II. ASSESSMENT OF THE REQUEST UNDER REGULATION (EC) NO 1049/2001
9. Document 7920/03 contains an opinion of the Council Legal Service on visa requirements of holders of diplomatic, official-duty and other official passports under Regulation (EC) No 539/2001 and Regulation (EC) No 789/2001. This opinion was issued in response to the Visa Working Party's questions on the procedure that Member States needed to follow when they exempted a holder of a diplomatic, official duty or other official passport from a visa
requirement.
10. Both Regulation (EC) 539/2001 and Regulation (EC) No 789/2001 have been repealed since the legal opinion reflected in document 7920/03 was issued.
11. At the time, Article 4(1) of Regulation (EC) 539/2001 foresaw the possibility for Member States to waive the visa requirement for certain categories, including holders of diplomatic passport. Regulation (EC) 789/2001 regulated the process to update the Common Consular Instructions (CCI), including the list of visa applications for which prior consultation was required before a visa may be granted. At the time, according to document 7920/03 to which access is requested, Member States could not decide individually to exempt the diplomats of a particular state from the visa requirement, where nationals of that state were the subject of prior consultation pursuant to the CCI. Such exemption required the unanimous consent of the Council. According to document 7920/03, the idea underpinning this restriction was that where one Member State considered it necessary to be consulted before visas were issued to all nationals of a particular third country, other Member States would have to respect that position and could not waive the visa requirement for nationals from that country of a particular category.
12. However, Regulation (EU) 2018/1806 and Regulation (EC) 810/2009, which replaced Regulation (EC) 539/2001 and Regulation (EC) No 789/2001 respectively, have set up a different legal framework.
13. The legal opinion contained in document 7920/03 is therefore no longer sensitive and it has become of historical interest in view of the passage of time and the entry into force of a new legal framework regulating the visa requirements of holders of diplomatic, official-duty and other official passports.
14. In light of the above, the Council considers that the disclosure of document 7920/03 does not appear to undermine the protection of the public interest as regards international relations, as provided under the third intend of Article 4(1)(a) of Regulation (EC) No 1049/2001.
15. The Council notes that the present positive decision is based on an individual analysis of the content of the requested document and the specific circumstances of the present case. It does under no circumstances constitute a precedent for the future, since each application shall be assessed and judged on its own merit, pursuant to the established practice of the Council.
III. CONCLUSION
16. In the light of the above considerations, the Council considers that document 7920/03 could be disclosed as it does not appear that the protection of the public interest as regards
international relations would be undermined pursuant to the third intend of Article 4(1) of Regulation (EC) No 1049/2001.
