13235/04 RJF/kb 1 DG F

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1 COUNCIL OF THE EUROPEAN UNION Brussels, 8 October /04 INF 136 API 81 JUR 413 COVER NOTE from : General Secretariat of the Council to : Working Party on Information Subject : Public access to documents - Confirmatory application made by Mr Nick MARCH (1/04) Delegations will find annexed hereto: a request for access to documents sent to the General Secretariat of the Council by Mr Nick MARCH on 23 September 2004 (Annex 1); the reply from the General Secretariat of the Council, dated 7 October 2004 (Annex 2); a confirmatory application from Mr March dated 7 October 2004, registered by the Council Secretariat on 8 October 2004 (Annex 3) /04 RJF/kb 1 DG F EN

2 ANNEX 1 [ message sent on 23 September :51] Please may I have access electronically to this document so as to evaluate the discussion concerning the proposed change. Document Number: 11162/04 Title: Proposal for a Council Directive amending Directive 77/388/EEC as regards the place of supply of services Content: (!)< N/A < Interinstitutional File: 2003/0329(CNS) Subject Matter: FISC 144 Document Category: NOTE Originator: Presidency Addressee: Working Party on Tax Questions - Indirect Taxation (VAT) Document Date: Date of Meeting: Archive Date: Document Language: EN (complementary clause) Nick March 13235/04 RJF/kb 2 ANNEX 1 DG F EN

3 ANNEX 2 COUNCIL OF THE EUROPEAN UNION GENERAL SECRETARIAT Directorate-General F Press Communication Protocol Brussels, 7 October 2004 Mr Nick March Transparency - Access to Documents RUE DE LA LOI, 175 B 1048 BRUSSELS Tel: (32 2) (32 2) Fax: (32 2) access@consilium.eu.int 04/1582-kb Dear Mr March, Thank you for your of 23 September 2004 requesting access to document 11162/04. The General Secretariat of the Council has examined your request on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Official Journal L 145, , p. 43) and the specific provisions concerning public access to Council documents set out in Annex II to the Council's Rules of Procedure (Council Decision No 2004/338/EC, Euratom, Official Journal L 106, , p. 38) and has come to the following conclusion: Document 11162/04 is a note from the Presidency to the Working Party on Tax Questions - Indirect Taxation (VAT) on the proposal for a Council Directive amending Directive 77/388/EEC as regards the place of supply of services. This delicate tax matter is still the subject of discussions within the preparatory bodies of the Council, and no decision has yet been taken. The General Secretariat has weighed your interest in being informed of progress in this area against the general interest that progress be made on this important issue. It considers that at this stage disclosure of this document would be premature in that it could impede the proper conduct of the negotiations and compromise the conclusion of an agreement on this sensitive subject. As there is no evidence suggesting an overriding public interest to warrant disclosure of the document in question, the General Secretariat has RJF/kb 3 ANNEX 2 DG F EN

4 concluded that protection of the decision-making process outweighs the public interest in disclosure. Accordingly, pursuant to Article 4(3) of the Regulation (protection of the Council's decision-making process) the General Secretariat is unable to accede to your request for access at this stage. As the exception applies to the entire content of the document, the General Secretariat is unable to grant you partial access as provided for in Article 4(6) of the Regulation. However, pursuant to Article 11(6) of Annex II to the Council s Rules of Procedure, this document and any other legislative document relating to this Directive, the content of which is not covered by Article 4(1), (2) or (3), second subparagraph, of Regulation (EC) No 1049/2001, shall be made available to the public in full after the final adoption of the act. Under Article 7(2) of the Regulation, you have 15 working days to submit a confirmatory application asking the Council to review its position. Yours sincerely, For the General Secretariat Ramon Jiménez Fraile RJF/kb 4 ANNEX 2 DG F EN

5 ANNEX 3 [confirmatory application sent on 7 October :39] Dear Sirs, Thank you for the response to my request. I must admit though, that I am somewhat surprised of this negative decision to my request. Given, that myrequest was not for a document of international security but simply so that I might be able to better advise my employer of what it should expect on the legislative horizon, I cannot agree that its disclosure would in any way compromise the valuable work undertaken by the Council. Further, I do not consider that this refusal is aligned with the spirit of the EU legislative ideal that, as a taxpayer, one ought to have reasonable foresight and understanding of the potential legislative changes. Businesses often have to prepare well in advance of law changes in order to achieve compliance with the legislation which my employer takes extremely seriously. I ask simply that you reconsider this decision so that we can properly evaluate the steps we must take to ensure that we have the flexibility to adapt for such a fundamental change to the Dir 77/388 such as the one proposed. Businesses provide the "air to breath" for the EU to function and its lack of transparency is disappointing and adds further weight to the wide view that there is inadequate feedback to the "hands that feed the EU". Thank you for your time in this matter. (complementary clause) Nick March 13235/04 RJF/kb 5 ANNEX 3 DG F EN