COUNCIL OF THE EUROPEAN UNION
RUE DE LA LOI, 175 B-1048 BRUSSELS
Tel: (32 2) 285 62 15 Fax: (32 2) 285 91 03

Mr Jacob SODERMAN,
European Ombudsman
1, Avenue du President Robert Schuman
BP 403
F-67000 STRASBOURG CEDEX
FRANCE

30 November 2000

Re: Your letter of 29 August 2000 concerning a complaint by Mr Tony BUNYAN (917/2000/GG)

Sir,

Pursuant to Article 3 (1) of Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties, the Council herewith sends you its reply to your letter of 29 August 2000 concerning the complaint made to you by Mr Tony BUNYAN (ref. 917/2000/GG).

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1. In the present complaint, Mr. Bunyan raises two instances in which the Council, according to him, had failed to supply information regarding a list of documents considered at meetings concerning Justice and Home affairs. He makes the following claims:

1) The Council failed to provide the documents he had required, that is to say

- all room documents, non-papers, meeting documents, SN documents etc. that had been put before specific meetings in the month of January (1999) that he had asked for on 27 January 1999 and

- all the documents (Restreint, Limite, non-paper, meeting document, room documents, SN documents and any other documents) that had been put before a meeting of the Police Cooperation Working Party (experts t meeting - Interception of Telecommunications) on 3-4 September 1998;

2) The Council failed to provide or failed to maintain a list of all these documents.

According to the complainant, there would be no justification for the deliberate exclusion of "SN" and "non-paper" documents, room documents ("DS", documents de seance) from agendas, outcomes of proceedings and the public register. Citizens would have a right to be provided with a list of the documents considered at Council meetings. Only then could the citizen fully understand all the issues "on the table" - and which were accepted, which rejected.

 

2. The Council would like to make the following comments on these points.

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3. By way of a preliminary remark, the Council underlines that in the cases referred to by Mr. Bunyan, the General Secretariat actually identified 85 documents, of which a total of 68 were released.

4. In more general terms, the present complaint raises a question of principle which relates to the way in which the Council operates and the nature of its documents.

5. The Council's rules on access to documents, unlike those of some Member States, do not distinguish between preparatory documents (or documents internal to a ministry) and final documents: both fall under the scope of Decision 93/731/EC if they are "held by the Council" (Article 203 of the Treaty), including its preparatory bodies (committees and working parties). This has been considered to be opportune given the nature of the institution: in fact, if only the final documents - on which the Council has reached agreement - were subject to the rules on access to documents, the practical meaning of those rules would be minimal, as they would cover little more than the texts published in the Official Journal.

6. However, not all preparatory documents are of the same nature.
7. On the one hand, there are documents which, although being preparatory because they are drafted with a view to the adoption of a Council act at a later stage, nevertheless represent a certain degree of "finality", in the sense that they can be considered to be the product of a preliminary consultation process and/or to represent an accurate picture of the state of the Council's deliberations on a certain dossier at a certain point in time (like for instance the final version of the agenda for a meeting, the final version of the outcome of proceedings of a meeting reflecting delegations' positions on a certain dossier, the final version of a compromise text by the presidency, the final version of a report from a working party to Coreper or another preparatory body, etc.).

Those documents generally take the form of official documents which, except for a very small number of documents classified CONFIDENTIAL, SECRET or TRES SECRET/ TOP SECRET and relating to matters concerning the security and defence of the Union or of one or more of its Member States or to military or non-military crisis management, are mentioned in the public register of Council documents at least with their document number [Footnote 1].

8. On the other hand, there are papers which represent the preliminary reflexions of a single person or a very small group of persons contributing to the Council's deliberations, which in certain Member States would probably not be considered as "final" - or "official" - documents subject to public access. However, the Council's structure is quite different from that of a Member State in that it is composed of fifteen members (Article 203 EC Treaty), which makes it opportune to circulate such papers to delegations before finalizing them. This is the case, for instance, when the General Secretariat circulates a draft note or report summarising delegations' positions on a certain dossier to the members of the working party or committee concerned: at this stage, such a draft merely reflects the personal perception of a single official, which may be incomplete or inaccurate. The same is true for the result of a first "brainstorming process" within the General Secretariat, which is circulated to a Council body with a view to getting delegations' first reactions, or for drafting suggestions circulated by the Presidency or a delegation during a meeting.

It is this type of papers which are usually circulated as non-papers, SN documents or room documents or in any other informal way. Their common feature is that they are of a purely transitory, preliminary nature: if their content is confirmed or if the ideas presented in them are taken up by the group or committee to which they are addressed, those will ultimately be reflected in a document which can be found on the public register.

9. The Council agrees that, as a matter of good administration, the register should - except in respect of a very small number of documents the specific nature of which requires to treat them in a special way - include references to all documents of the first category, and it has taken measures to this effect [2.] Indeed, those are the documents which accurately reflect the Council's deliberations at its different levels and are therefore useful to the citizen who wants to know how the institution arrived at its decisions. They should be - and are - filed and archived systematically [Footnote 2].

10. However, the Council is not of the opinion that it is necessary or appropriate to keep a complete, centralised record and register of each paper which is circulated to its members or their representatives, however preliminary or transitory it may be. In fact, this would impose a heavy administrative burden on its General Secretariat. As for the complainant's claim that such papers should be mentioned in the agendas or the outcomes of proceedings of the meetings concerned, the Council would like to underline that its rules on access to documents provide for access to documents in their existing form, but do not oblige the Council or its General Secretariat to include in them any particular elements of information. In fact, there is no obligation whatsoever to draft any outcome of proceedings of a meeting.

11. The crucial problem in this context is of course to determine the point at which a draft or informal paper is to be considered as a document which should be registered and archived. This question is currently being discussed in the context of the Commission proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents based on Article 255, paragraph 2 EC Treaty, it being understood that each institution needs some room for the expression of personal opinions and the free exchange of ideas ("brainstorming") or, in other terms, some "space to think" before an idea is ripe for being presentable to the public. At this stage, the Council is therefore not in a position to take a stand as regards the criteria which will be applied to this effect.

Yours sincerely,

Pierre de Boissieu

Footnote 1: See Article 2 of the Council Decision 2000/23/EC of 6 December 1999 on the improvement information on the Council's legislative activities and the public register of Council documents, OJ n L 9 of 13.1.2000, p. 22, as amended by Council Decision 2000/527/EC of 14 August 2000, OJ n L 212 of 23.8.2000, p. 9.

Footnote 2: See notably the Council Decision of 19 March 1998 on establishing a public register of Council documents. This register is operational and available on the Council's Internet website since 1 January 1999. It is a multilingual tool offering a wide range of facilities enabling any citizen to identify Council documents. Its coverage of Council documents was extended by the Council Decision of 6 December 1999 on the improvement of information on the Council's legislative activities and the public register of Council documents (see above). Since 1 January 2000, the provisional agendas of meetings of the Council and its preparatory bodies referring to cases where the Council acts in its legislative capacity (e.g. Coreper) are published on the Council's Internet site.