Statewatch

EU secrecy proposals, Documents numbers 2 & 3

 

TEXT

EUROPEAN COMMISSION

Secretariat-General

Brussels, 23 April 1999

SG.C.2/VJ/CD D(99) 83

 

DISCUSSION PAPER ON

ON PUBLIC ACCESS TO COMMISSION DOCUMENTS

 

Nota Bene: this discussion paper has been drawn up by the department responsible for access to documents in the Secretariat-General of the European Commission. It is a preparatory document which has not yet been the subject of a formal inter-departmental consultation procedure. It does not commit the Commission in any way nor prejudge the content of the Commission's future formal legislative proposal implementing Article 255 of the EC Treaty. It is made available purely for information purposes.

 

DISCUSSION PAPER ON

ON PUBLIC ACCESS TO COMMISSION DOCUMENTS

 

I. Introduction

The Treaty of Maastricht(1), and the European Councils in Birmingham, Edinburgh and Copenhagen that followed, highlighted the need for greater openness in the working of the EU institutions to bring them closer to the people and, more particularly the need:

- to stimulate debate on topical issues in the Community and on the future of Europe;

- to improve public participation in the decision-making process;

- to strengthen the democratic nature of the institutions and public confidence in the European administration by giving people the opportunity to monitor its work.

The EU institutions accordingly took a series of measures to make their work more transparent and to bring themselves closer to the public. These were confirmed in the interinstitutional declaration of 25 October 1993 on democracy, transparency and subsidiarity. These measures complement the steps taken by the Commission in the field of information and communication with a view to informing the general public or, in certain cases, a specific target group, about the workings of the institutions and the policies carried out at Community level. The various initiatives are described in the annex.

The Amsterdam Treaty embraces the concept of openness:

· by including it among the general principles of the Union in the second paragraph of Article A of the Treaty on European Union ("This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen");

· by granting citizens of the Union a genuine right of access to European Parliament, Council and Commission documents (insertion of a new Article 255 in the EC Treaty).

This new Article 255 stipulates that:

"1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents."

Under the terms of this article, it is therefore for the Commission to produce draft legislation on the general principles and limits governing the exercise of the right of access to the documents of the three institutions referred to. It is important to stress here that the Treaty sought to make the rules on access to documents more understandable, by providing for a harmonised system rather than three separate systems.

This discussion paper, which must be seen in the overall context of transparency, presents a number of options on the framework and guidelines for preparing the Commission's formal proposal for implementing Article 255 of the EC Treaty. The paper starts, therefore, by reviewing the policy on access to Commission documents that has applied since February 1994.

II. Policy on access to Commission documents since 1994

One of the crucial measures taken by the Commission as part of the policy of openness relates to public access to its documents.

In accordance with the Declaration issued in Maastricht and in response to the request of the Copenhagen European Council that they define a set of basic principles and minimum requirements for improving public access to information, the Commission and Council adopted a joint code of conduct in December 1993. This embodies the principle that the public should have the broadest possible access to documents produced by the institutions, subject to certain exceptions intended to protect public and private interests or the proper working of the institutions. It also lays down the conditions and fundamental principles applying to the procedure, sets deadlines for dealing with requests and outlines the possibilities for review if a request is refused. The code of conduct was adopted by the Council on 20 December 1993(2) and by the Commission on 8 February 1994(3).

The European Parliament adopted a decision on public access to its documents on 10 July 1997, which introduced a system virtually identical to that of the Commission and Council(4).

1. Scope and basic approach

The policy on access covers all internal Commission documents, i.e. draft versions or versions that are not intended for publication (such as SEC documents, studies, information memorandums, etc.). It is aimed primarily at the preparatory documents relating to Commission proposals, the facts and analyses that the Commission regards as relevant to the formulation of its proposals and decisions, and other explanatory material relating to the Commission's policies, actions and decisions. The policy on access applies only to documents produced by the Commission. An applicant wishing to obtain a document produced by another institution, a Member State or a private individual will be referred to the document's author.

Final documents intended for publication and sale, such as final COM documents, will continue to be available from the Office for Official Publications (OPOCE) and its sales offices in the Member States and non-member countries.

This policy complements the Commission's information and communication policy. Documents such as leaflets and free brochures distributed to the general public on the Commission's initiative will continue to be dealt with as before, as will requests for information.

Any natural or legal person, regardless of their status, may request access to a Commission document without having to cite a special reason for their inquiry. Applicants need not be citizens of the Union, nor have their place of residence or registered office in a Member State. All requests must be made in writing. No distinction is made between categories of applicant, and no particular group (journalists, Members of the European Parliament acting in a personal capacity, interest groups) receives special treatment under this policy. The rules governing the procedure and deadlines for dealing with requests and the possibilities for review are applied strictly and impartially.

The basic principle governing the way each request is considered is that the fullest possible access should be granted to the documents produced by the Commission. However, the code of conduct does provide for certain exceptions to the general principle of access, in order to:

- protect the public interest,

- protect the individual and privacy,

- protect commercial and industrial secrecy,

- protect the financial interests of the Community,

- protect the confidentiality requested by the natural or legal person that supplied the information, or as required by the legislation of the Member State that supplied the information,

- protect the Commission's interests in the confidentiality of its proceedings.

However, no exception applies automatically, as each application is dealt with individually and examined in detail, case by case. The intention to refuse access to a document must therefore be properly justified and may only be based on one of the explicit and restrictive exceptions provided for.

The obligation to examine each case individually has been confirmed several times by the Court of First Instance, even where the institution intends to invoke one of the "mandatory" exceptions (the first five exceptions). In the case of the final "discretionary" exception, the CFI has even reinforced the obligation, by requiring the Commission and Council to balance the interest of citizens in gaining access to documents against the institution's interest in maintaining the confidentiality of its deliberations(5).

2. Procedure for dealing with requests

The administration of the policy of public access to Commission documents has been decentralised: each Directorate-General or service is responsible for dealing with requests relating to its documents. A reply, in the language used by the applicant, must be sent at the latest within a month of registering receipt of the request. If access is granted, the applicant receives a copy of the documents, for which a reasonable charge is made, or is offered the opportunity to consult them on the spot.

Applicants who receive no reply within a month, or whose request for access is refused, may write to the Secretary-General confirming their original request. If the Secretary-General confirms the refusal, the applicant may refer the matter to the Ombudsman or the Court of First Instance.

3. Results

A report on the first two years of the policy produced a broadly favourable assessment. As a result, the Commission decided to continue to develop the current policy on the basis of its code of conduct. A single change was made to the system on 19 September 1996, when the charge for copying the documents requested was made discretionary(6). The Council, for its part, amended Decision 93/731/EC on public access to its documents on 6 December 1996(7), to allow the time limit to be extended by one month in exceptional circumstances and provide for a report on implementation of the decision to be submitted every two years.

The figures compiled by the Commission for 1998 show that fewer than 10% of the 602 requests received were refused on one of the grounds provided for in the code of conduct. Over 90% of requests were thus granted. Most came from academics and professionals. Requests covered a wide variety of subject areas, though certain topics were of particular interest: the activities of the Secretariat-General (anti-fraud activity, third pillar, etc.), Industry, Internal Market, etc.

It is interesting to note that the number of confirmatory applications following refusal of access to a document, which had increased sharply in 1997 following the CFI judgement setting aside the Commission's decision in the WWF case, dropped markedly in 1998 (only 29 such requests were made compared with 44 in 1997).

There were also relatively few complaints to the Ombudsman in 1998 (only 10 since 1994). Most of the decisions reached to date have resulted in the cases being closed without any maladministration on the part of the Commission having been established. In two cases the Ombudsman's intervention led to the Commission and the applicant reaching an amicable solution (disclosure of part of a report in the first case, disclosure of the Member States' contributions by the Commission after obtaining the express authorisation of the national authorities, in the second).

There have so far been eight referrals to the CFI concerning Commission decisions. Three judgements have been handed down to date, two setting aside the Commission's decision to refuse access, on the grounds of insufficient justification (Cases T-105/95 and T-124/96), the third rejecting the application and accepting the Commission's arguments (Case T-83/96; an appeal is currently pending before the Court of Justice). The other cases are still pending.

The conclusion that may be drawn from these results is that, despite the importance of public access to the institutions' documents, from a political point of view and as a matter of principle, this initiative has had a relatively limited impact on the public, at least in certain Member States. It is clear, however, that people make less use of access at Community level than at national level largely for language reasons, given that the documents are not available in all EU languages.

 

III. Possible guidelines and framework for the new post-Amsterdam legislation

Following a meeting of the Secretaries-General in December 1997, an informal working party consisting of officials from the three institutions was set up under the leadership of the Secretariat-General of the Commission, to prepare the ground and outline possible directions for the Commission's draft legislation.

The options set out below take into account the guidelines suggested by this working party, the discussions between the Secretaries-General and the internal debates in the relevant Commission department. They also take account, as far as possible, of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (see point IV below).

1. Legal format and legal basis of the new legislation

The new legislation might take the form of a regulation based on Article 255 of the EC Treaty.

2. Scope

The formal right of access would be restricted to the documents of the European Parliament, the Council and the Commission, as provided for in Article 255 of the EC Treaty.

If the same definition is used as that in the current code of conduct, a "document" would mean any written text, whatever its medium, which contains existing data.

However, the documents covered by the new legislation should be defined and answers provided to the following questions.

2.1. Does the regulation apply to all documents held by the institutions or only those produced by them?

Under the current system the right of access applies only to documents originating with the Commission. The code of conduct adopted by the Council and the Commission states that "where the document held by an institution was written by a natural or legal person, a Member State, another Community institution or body of any other national or international body, the application must be sent direct to the author".

Article 255 of the EC Treaty grants right of access to "European Parliament, Council and Commission documents".

While Article 255 obviously covers all documents produced by the three institutions, the wording is less clear as regards documents held by the institutions but originating with a third party. The wording of Declaration N° 35(8), however, would support an interpretation of Article 255 as also covering documents originating with third parties.

In most Member States the right of access applies to all documents held by the administration(9). The move to extend the scope of the present code of conduct, which applies only to documents produced by the institutions, is also actively supported by both the European Ombudsman(10) and the European Parliament(11).

However, steps would be needed to ensure that the Community institutions did not grant access to documents originating with Member States which they themselves would not release (e.g. material that is classified in the Member States or documents relating to the second or third pillar). The Member States must be able to trust the institutions not to release to outsiders all of the documents sent to them. The same applies to non-member countries and international organisations.

There would also be practical difficulties for the Commission's administration associated with handling requests for non-Commission documents. Firstly, because there is no centralised registration of incoming documents at the Commission, there might be a problem identifying and locating the documents requested. However, given that non-Commission documents usually relate to a particular dossier, this problem should not be insuperable.

There is also the question of whether the consent of the document's author should be obtained before access is granted to the document - which in practice would entail a considerable burden of administration and an obligation to accommodate the wishes of the author - and whether the Commission would lay itself open to legal action by the author of the document if it failed to request consent.

Having weighed up the pros and cons of the two options, the right of access provided for in Article 255 would apply to all documents held by the institutions. It is understood, however, that access to a document originating with a third party could not be granted if the document was covered by one of the exceptions explicitly provided for (see point 4 below), particularly the protection of privacy and personal data. The question of copyright should also be considered in this context.

In addition, given the practical difficulties that might be caused by administering requests for documents from third parties, it would be necessary to ask applicants to supply precise information about the documents they require, to allow longer for answering this type of request (two months instead of one) and to limit access to documents from third parties to those postdating implementation of the legislation.

2.2. What type of internal documents will be covered by the future legislation?

Under the current arrangements, all internal Commission documents are in theory accessible, unless covered by one of the exceptions explicitly cited in the code of conduct. This applies to all types of preparatory document and those not intended for publication, regardless of the medium. Summary records of meetings, internal departmental memos, etc. and even the minutes of Commission meetings are therefore covered by the current policy on access.

Experience shows that the majority of requests relate to SEC documents (or non-final COM documents). Certain other documents are requested fairly regularly, such as the Manual of Operational Procedures, the Directory and the Guide des Services and various studies and reports carried out by or on behalf of a DG. Purely internal memorandums (e.g. memos written by one department when "consulted" by another, or notes written by an official for his superiors) are very rarely the subject of an explicit request, but must in some cases be included when dealing with a request for access to a particular dossier (e.g. on a complaint or suspected infringement, a State aid or a grant application or invitation to tender).

In order to avoid any problem that might arise in the future and make it easier to apply the right of access, the new legislation should define what is meant by a "document from one of the institutions". A distinction could therefore be made between:

· documents relating to the institution's internal organisation and administration (Manual of Procedures, Directory, etc.), some of which might interest outsiders;

· preparatory documents forming part of the legislative process (the framing of Commission policy initiatives and decisions), such as:

- preparatory documents for Commission policy decisions and initiatives (preliminary drafts, draft proposals for legislation or decisions, interim reports, etc.),

- explanatory documents and other factual information (statistics, studies, background notes, notes providing clarifications or definitions, etc.) relating to the Commission's policy initiatives and decisions;

· working documents in the form of contributions to internal proceedings (documents of a purely internal nature: summary reports of meetings, briefing notes, departmental opinions, mission reports, notes containing officials' personal thoughts or opinions, etc.).

Consequently, the scope of future legislation would not extend to working documents produced in the form of a contribution to internal proceedings (the third category of internal documents). This would make it possible to protect proceedings while ensuring access to the final outcome.

2.3. How can we ensure access to documents produced by committees operating under the Committee Procedures Decision?

The line taken by the Commission to date has been that documents from these committees are not Commission documents because the committees are set up by the Council and composed of representatives of the Member States. A case relating to this problem is in fact currently before the CFI (Case T-188/97 Rothmans v Commission).

At the same time, the transparency aspects (relating primarily to the final outcome of proceedings) could equally be covered by a regulation as part of the current review of the Decision laying down the procedures for the exercise of implementing powers conferred on the Commission (Committee Procedures Decision).

In any case, if the future regulation covers all documents held by the institutions, its rules will apply to documents from the committees operating under the Committee Procedures Decision and, by analogy, to the documents of all the committees assisting the Commission in the exercise of its implementing powers.

2.4. How is compatibility to be ensured between the general principle of access to documents and the existing specific provisions?

Many of the requests that have caused problems under the current system (because of the number of confirmatory applications) relate to State aid or competition cases, procedures for recruitment competitions and invitations to tender, all of which are covered by special provisions.

It is therefore important to state explicitly that the future regulation governing the general right of access to documents will apply without prejudice to the specific provisions constituting the "lex specialis", and in particular:

· other provisions instituting special rules for persons with a particular interest(12),

· other provisions governing the confidentiality of certain documents(13),

· other special rules applying to particular categories of document(14).

3. Who would enjoy right of access?

We should retain the wording of the Treaty itself, i.e. the "any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State".

The legislation is aimed at the general public. Even if the right of access is not intended for national administrations or other Community institutions and bodies, there is no need to specify this in the text(15).

4. Exceptions to the right of access

The present system of exceptions consists of mandatory exceptions (to protect the public interest, the individual and privacy, commercial and industrial secrecy, the Community's financial interests, confidentiality as requested by the natural or legal persons that supplied the information or as required by the legislation of the Member State that supplied the information) and one discretionary exception (to protect the confidentiality of the institution's proceedings).

On the whole the system of exceptions operates relatively well. It has been applied quite restrictively and on increasingly legitimate grounds. The only real difficulty has arisen with the application of the discretionary exception, since the CFI required the institution to balance the interest of the public in gaining access to a document against the interest of the institution in maintaining the confidentiality of its deliberations, given that applicants are not required to justify their requests.

Rather than introduce a radical reform of this system the following changes could be introduced to improve the status quo:

· as regards the mandatory exceptions: these should be better targeted and more precise, for example by defining the notion of monetary stability or by including under the heading of the public interest the stability of the Community legal order. A reference should also be made to the special rules that exist regarding, for example, the protection of personal data(16), access to files on infringements, State aids and competition, and Community rules on confidentiality in the area of fraud prevention. Specific exceptions might also have to be provided for the sectors of justice and home affairs, common foreign and security policy and fraud prevention (e.g. to protect whistleblowers or prevent the disclosure of operational details of ongoing enquiries);

· the protection of the confidentiality of the institutions' proceedings could remain a discretionary exception. However, in order to make it easier to weigh up the relative interests, as required by the CFI, it might be a good idea to define the criteria for making this assessment and the reasons that would justify invoking this exception. The problem might be partially resolved by introducing a definition of accessible documents that would automatically exclude certain types of internal memorandum and would thus help to reduce recourse to this exception to a minimum. In connection with this exception an embargo could be imposed, by way of a corollary, to delay access to certain documents to prevent interference in the decision-making process and to ensure that their premature dissemination does not cause resentment and damage the Union's interests (e.g. access to preparatory documents to be given only after a formal decision has been taken by the Commission, European Parliament or Council as appropriate).

In addition to this common core regulation, internal implementing rules would be needed for each of the three institutions to deal with the different situations.

5. Exercise of the right of access

In due course arrangements for implementing the right of access similar to those currently in force could be foreseen, given that the current system operates well. These arrangements are set out in the technical annex.

6. Final provisions

The following provisions could be included in the future legislation:

· The European Parliament, the Council and the Commission will lay down the measures needed to implement these principles in their respective rules of procedure.

· The institutions undertake to inform the public of the arrangements they intend to make regarding access to their documents.

· The institutions also undertake to devote sufficient resources to ensure that requests for access to documents are properly dealt with and to arrange training for their staff.

· The institutions agree that this regulation will be reviewed after three years of operation.

IV. Related questions

1. Establishment of a register

In order to give people an idea of the documents to which they may request access and to increase the public impact of the policy of freedom of information, a possibility of creating an easily accessible register of documents should be looked at(17). This suggestion is enthusiastically endorsed by the European Parliament and the Ombudsman(18). This register could be seen as one of several tools intended to make document search easier for members of the public. It is certainly not the intention to limit access only to those documents included in the register, as this would be much too restrictive.

However, it should be emphasised that unlike the Nordic countries, the Commission has no tradition of a public register. The same is true of most of the Member States. Even those Member States that recently passed freedom of information acts for their own documents have not instituted such a practice. The systems for recording documents currently used by the Commission are designed for administering incoming and outgoing mail and are not organised with a view to external distribution.

Moreover, at present the Commission does not have a standard system for registering and archiving documents. Registration of documents is entirely decentralised and is carried out by individual Directorates-General and departments.

Under these circumstances, it does not seem very realistic to envisage setting up a centralised and exhaustive public register. However, it might be possible to envisage, in connection with the implementation of Article 255 of the EC Treaty on access to documents, setting up a public register which initially would provide a list containing the documents belonging to those categories of document that are most in demand according to our statistics. Obviously access would not be limited only to the documents listed in the register, since that would be too restrictive. At a later date the possibility of setting up a more exhaustive register might be considered.

2. The Aarhus Convention

The Commission signed the EEC/UN Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters at the Inter-ministerial Conference in Aarhus (Denmark) on 23-25 June 1998. It contains a number of provisions on access to information, including documents, that differ to some extent from those of the current code of conduct on access to documents and that go beyond Article 255 of the EC Treaty. The definition of information used in the Convention, for example, is much wider than documents alone, the Convention makes no distinction between beneficiaries of the right of access and provides for discretionary exceptions which may be invoked only after weighing up the balance of interests.

On signing the Convention, the Commission therefore made a statement to the effect that the Community institutions would apply it in the framework of their current and future rules on access to documents, taking into account the provisions of the Treaty of Amsterdam on future legislation in this field, and that the Community would consider the need for possible reservations when it came to ratification.

Given that the future regulation will necessarily be limited by the provisions of Article 255 of the EC Treaty and that it would be impracticable to make special rules for access to documents in the environmental field, because of the difficulties of defining the scope of application, the feasible option seems to be to take the provisions of the Convention into account wherever possible while reserving the possibility to issue a reservation when the Convention is ratified on any remaining discrepancies.

Annexes :

· Commission initiatives in the field of openness and information. [not included here, document no. SG.C.2/VJ/CD D(99)60]

· Statistics on requests for access to Commission documents, 1998. [not included here, document no. SEC/1999/449]

· Comparison of scope of legislation in force in the Member States on public access to government documents. [not included here, document no: SG.C.2 VJ/CD D(99)51]

· Technical annex. [see below]


Document no 3

EUROPEAN COMMISSION

Secretariat-General

Brussels,

SG.C.2/VJ/CD D(98) 11/3

TECHNICAL ANNEX

Exercise of the right of access

In due course arrangements for the following aspects of implementing the right of access similar to those already in operation could be foreseen.

Processing of initial applications

· request must be made in writing and must be precise enough to allow the institution to identify the document;

· provision must be made for an amicable solution in the event of repetitive requests or requests for voluminous documents;

· compulsory time limit of one month from the date of registration of the request (with the possibility of extending it by a further month if detailed reasons are given and the applicant is notified in advance);

· answer to be given in the language used in the request.

Access to documents and charges

· documents may be consulted on the spot or copies delivered or sent electronically;

· a reasonable charge may be made;

· a clause attributing copyright to the institution will be included.

Processing of confirmatory applications and appeals

· possibility of internal review if the request is refused or no answer received within the specified time limit;

· a one-month time limit is set for replying to confirmatory applications (calculated from the date of registration). This may be extended for a further month if detailed reasons are given and the applicant is duly notified in advance;

· the reply must be in the language used in the request;

· an application for review may be made to the Ombudsman or the Court of First Instance if the request is refused or no answer is provided within the time limit.

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Telephone: direct line (+32-2)295.51.61, switchboard 299.11.11. Fax: 296.72.42.

Telex: COMEU B 21877. Telegraphic address: COMEUR Brussels.

 

Footnotes

1. Declaration No. 17 on the right of access to information, annexed to the Maastricht Treaty, reads as follows "The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions."

2. OJ L 340, 31 December 1993.

3. OJ L 46, 18 February 1994.

4. OJ L 263, 25 September 1997.

5. Case T-194/94 Guardian v Council [1995] ECR II-2765 and Case T-105/95 WWF v Commission [1997] ECR II-0313.

6. OJ L 247, 28 September 1996.

7. OJ L 325, 14 December 1996.

8. Declaration No. 35 allows a Member State to request the Commission or the Council not to communicate to third parties a document originating from that State without its prior agreement.

9. See comparison of national laws on public access to government documents in the annex.

10.  See in particular the Ombudsman's special report, published in OJ C 44 of 10 February 1998, on the own-initiative enquiry into rules on public access to documents held by Community institutions and bodies. See also the report presented by the Ombudsman to the 1998 FIDE Conference in Stockholm, 3-6 June 1998.

11. See Ms Lööw's report on transparency in the Union.

12. Examples of special rules:

· rules on State aids and competition (particularly the rules laid down by the Commission: see Annual Competition Reports);

· rules of the Staff Regulations of officials and other servants of the European Communities, for example on recruitment competitions;

· ACPC rules on invitations to tender;

· Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (a person's right of access to his/her own file).

13. Examples of other provisions:

· Council Regulation 2185/96 on anti-fraud enquiries (OJ L 292, 15 November 1996);

· Council Regulation 515/97 on enquires relating to customs and agricultural matters (OJ L 82, 22 March 1997);

· Commission Decision C(94)3382 of 30 November 1994 on security measures applicable to classified information.

14. Examples of other rules:

· rules on opening historical archives to the public (Council Regulation of 1 February 1983, Commission Decision of 8 February 1983 - OJ L 43, 15 February 1983);

· rules on statistics (Council Regulation of 11 June 1990 - OJ L 151, 15 June 1990);

· rules on information relating to the budget.

15. It would be useful to clarify the nature of the privileged access to the institutions' documents enjoyed by the European Parliament, the Council, the Court of Auditors, the Ombudsman, the Member States and the national administrations and courts. This might be done by drawing up agreements with them to facilitate access subject to compliance with certain undertakings. Work is currently under way, for example, to clarify the exchange of Commission documents with Parliament's committees on budgets and budgetary control.

16. Under Article 286 of the EC Treaty, Community acts on the protection of personal data also apply to the Community institutions and bodies. Directive 95/46/CE already applies to the Commission, which made its decision public in a Declaration to the Council (COM/90/314 final).

17. In the interests of openness the Council decided on 19 March 1998 to create a public register of its non-classified documents, accessible via the EUROPA server on the Internet. The Council register made public on 1 January 1999 does not contain internal documents (departmental memos, etc.) but does contain all non-classified Council documents, i.e. including those relating to the preparatory stages of decision-making.

18. See footnotes 8 and 9.