Mr Soderman responds to Mr Prodi's letter to the President of the European Parliament:
English version of French original
Strasbourg, 14 March 2000
Mme Nicole Fontaine
B - 1047 Brussels
The President of the European Commission has sent me a copy of his letter to you dated 3 March 2000. Mr Prodi refers to an article published on 24 February 2000 in the Wall Street Journal, in which I criticised the Commission's draft Regulation on public access to documents. This article repeats views first expressed publicly in my speech on 2 February 2000 to the Convention drafting the Charter of Fundamental Rights for the European Union. Mr Prodi published a reply to my views in the Wall Street Journal on 8 March 2000.
I believe that this debate has been to the benefit of the European citizens, not least because it gave Mr Prodi the opportunity to promise that transparency will become a byword of his mandate as President of the Commission.
I also believe that it was right to conduct the debate in public, especially since the Commission was unable to fulfil its promise to publish a consultation paper before finalising its draft Regulation on public access to documents.
In considering Mr Prodi's letter, you should remember that most of the complaints which are within the mandate of the European Ombudsman concern the European Commission and that one of the main reasons for complaint to the Ombudsman over the years has been a lack of transparency of the Commission.
In dealing with the four annual reports which I have presented so far, the European Parliament has considered and approved the record of my work as Ombudsman. On all four occasions, the responsible Commissioner has congratulated me on the way I have carried out my tasks and welcomed the atmosphere of good co-operation between the Community institutions and the Ombudsman.
If the intention of Mr Prodi's letter is to restrict the European Ombudsman's right to take part in public debate on issues of concern to European citizens, it should be underlined that I have sworn to perform my duties with complete independence, in the general interest of the Communities and of the citizens of the Union. The Statute of the Ombudsman forbids me to accept instructions from any government or other body, including the European Commission.
According to the Treaty on European Union, the Union shall respect the principles enshrined in the European Convention on Human Rights and Fundamental Freedoms, including freedom of speech. I assure you that no undue pressure will make me give up the exercise of that right in defence of the interests of the Communities and of European citizens.
Mr Prodi rightly believes that a good law on public access to documents would benefit the Community institutions as well as European citizens and enhance relations between them. A large part of my professional life has involved dealing with laws on public access to documents and complaints about refusal of access. I remain convinced that European citizens are entitled to a better law than the one which the Commission has proposed.
In a spirit of sincere co-operation, therefore, I enclose a note of the main points at which changes should be made to the Commission's draft, in order to give effect to Mr Prodi's good intentions and implement properly the European citizens' right of access to documents under the Treaty of Amsterdam.
I remain entirely at the disposal of the European Parliament and its committees. In particular, I would be ready to suggest draft amendments if this could be helpful to you in your dealings with the Commission's draft Regulation.
cc Council Presidency
Note of the main changes which should be made to the Commission's draft Regulation on access to documents
1 Create rights not discretion
Article 1 of the draft Regulation states that citizens shall have "the right to the widest possible access" to the documents of the institutions (Ombudsman's emphasis).
However, key parts of the Regulation such as the exclusions from the definition of "document" and the exceptions to access, are drafted in unnecessarily general terms.
This means that application of the Regulation would involve the exercise of a large amount of discretion by the institutions. In practice, therefore, citizens would not so much enjoy rights as be dependent on the goodwill of officials exercising the discretion on behalf of the institution.
2 Avoid misleading the citizen
It seems obvious that the intention of the Commission's draft Regulation is to prevent Member States from giving access under their own laws to documents which the citizen could not obtain from a Community institution. The first clause of recital 12(1) could be misunderstood as saying the opposite and should therefore be amended or deleted.
3 List all the existing laws on secrecy in the Regulation
Article 2 (2) second indent states : "This Regulation shall not apply where specific rules on access to documents exist". This means, amongst other things, that all the existing special laws allowing secrecy will continue to apply. It is not clear why this is necessary. At least the relevant laws should be listed in an annexe, otherwise the citizens cannot know their rights.
4 Include all documents in the Regulation
The Regulation defines "document" so as to include documents produced by third parties. The Commission's explanatory memorandum says that this is a major step forward compared to the current system, which only covers documents produced by the institutions.
Citizens who read the explanatory memorandum could be in for a disappointment, because Article 4 of the Regulation contains an exception for:
"the protection of confidentiality as requested by the third party that supplied the document or the information ".
This appears to mean that anybody has the right to send a document to a Community institution in secret, without giving any reason.
The draft Regulation should limit the right of third parties to submit documents in confidence to cases which fall under grounds set out in law, such as commercial confidentiality. Otherwise all the third party documents which a citizen is likely to want to read might be excluded in practice.
5 Include a right to see supporting documents
Article 3 contains the following very broad exclusion from the definition of document:
"texts for internal use such as discussion documents, opinions of departments and informal messages".
Taken literally, this would mean that citizens could be permanently barred from even requesting access to the documents on which an institution has based its decision or conclusion on the matter concerned. Whilst the institutions need "space to think", the relevant results of their thinking should be publicly available, at least when a final decision has been made.
6 Delete unnecessary exceptions
The list of exceptions contained in Article 4 is more restrictive than the existing Code of Conduct. It is also drafted in unnecessarily broad terms as, for example, in the case of the new exception for "relations between and/or with the Member States or Community and non-Community institution".
Two of the categories of "public interest" should be deleted:
(i) infringement proceedings, including the preparatory stages thereof
The new exception for infringement proceedings appears to be intended to re-inforce the secrecy surrounding the Commission's role as the "Guardian of the Treaty", which a recent judgement of the Court of First Instance has indicated is not absolute under the existing rules.(2)
The secretiveness of the Commission's procedures has been criticised by many citizens, especially those who have complained to the Commission about infringements of Community law by a Member State. These procedures should be made more transparent, not less.
(ii) The deliberations and effective functioning of the institutions
The inclusion of this exception as a new category of public interest seems to be intended to abolish the rule, established by the Courts, that an institution must strike a balance between its interest in the confidentiality of its proceedings and the applicant's interest in disclosure of the document.
In any event, the exception for the institution's interest in the confidentiality of proceedings seems unnecessary and could be deleted.
7 Each institution should have a central register of documents
Article 9 requires each institution to provide "access to a register of documents" However, there is no definition of the term register, nor any indication of what it should contain. In particular, there is no obligation for each institution to maintain and publish a central register which includes all incoming and outgoing documents. It should also be made clear that the register must also include confidential documents, in a form that does not disclose confidential information.
Footnote 1: "Although neither the object nor the effect of this Regulation is to amend national legislation on access to documents, it is obvious that in accordance with the principle of loyalty governing relations between the Community institutions and the Member States, the latter will take care not to undermine application of this Regulation."
Footnote 2: Case T-309/97, Bavarian Lager v Commission, judgement of 14 October 1999, paragraph 41: "However, contrary to the Commission's assertions, it does not follow from the case-law, in particular the WWF judgement, that all documents linked to infringement procedures are covered by the exception relating to protection of the public interest. [ ]")