Draft recommendation
to the Council of the European Union
in complaint
917/2000/GG
(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

Contents

Summary
The Complaint
The Inquiry
The Decision

SUMMARY

The complaint in this case concerns the failure by the Council of the European Union (1) to grant
access to certain documents that were put before various meetings of the Council in September 1998
and January 1999 and (2) to maintain a list of all the documents that are put before these meetings.

The Council argues that a distinction needs to be drawn regarding the documents submitted to meetings
of the Council and that only documents falling into a particular category needed to be included in the
register of documents. It also appears to believe that it fully complied with the complainant's request for
access to documents.

The Ombudsman takes the view that Decision 93/731 on access to documents held by the Council
does not provide a basis for the distinction that the Council had put forward. In the Ombudsman's
view, the principle of openness obliges the Council to grant access to all the documents that are
considered by it, unless one of the exceptions laid down in Decision 93/731 applies. However, such
access is only possible if citizens know or are able to find out which documents have been considered
by the Council. The Ombudsman thus considers that principles of good administration oblige the
Council to maintain a list of all these documents. He also notes that there is evidence suggesting that the
Council, when deciding on the complainant's request for access, did not consider all the relevant
documents.

In these circumstances, the Ombudsman makes a draft recommendation in which he asks the Council
(1) to reconsider the complainant's application and give access to the documents requested, unless one
or more of the exceptions contained in Article 4 of Decision 93/731 applies and (2) to establish a list of
all the documents that are put before Council meetings and make this list or register available to citizens.

THE COMPLAINT

The complaint was lodged by Statewatch, a private organisation, in July 2000. According to the
complainant, the relevant facts may be summarised as follows:

The complainant had obtained copies of agendas and 'outcomes of proceedings' for meetings of the
Council of the European Union concerning justice and home affairs. It had noticed that many of the
documents listed in the 'outcomes of proceedings' were not listed on the agendas of these meetings. It
had also learnt that a number of documents, for example Room documents and SN documents, were
generally not listed on the agendas nor on the 'outcomes of proceedings'.

On 27 January 1999, the complainant wrote to the Council in order to ask for "all Room documents,
non-papers, meetings documents, SN ["sans numéro", unnumbered] docs etc" that were put before
specific meetings in the month of January 1999 and that had not been listed on the agendas for these
meetings. In its reply sent on 24 March 1999, the Council took the view that applications for access to
documents under Council Decision 93/731/EC of 20 December 1993 on public access to
documents(2) had to contain information enabling the documents requested to be identified. The
Council claimed that it was unable to identify the documents concerned, if they existed. In the Council's
view, the only means for doing so were the agendas or the 'outcomes of proceedings' that had already
been sent to the complainant or could be requested by the latter.

The complainant then lodged a confirmatory application in which it pointed out that there was no
guarantee that access to the 'outcomes of proceedings' to which the Council had referred would be
granted. It also stressed that it might well be the case that documents of the type referred to were not
listed in the agendas or the 'outcomes of proceedings' although they constituted part of the
decision-making procedure. It thus appeared to the complainant that the Council did not maintain a list
or a document that recorded all the documents circulated in advance or put before the meeting. In its
decision on this confirmatory application, the Council informed the complainant that on the basis of the
'outcomes of proceedings' it had identified 79 further documents that had been put before the meetings
and that access was refused in respect of 15 of them. The listed documents contained only one SN
document.

In another application made on 25 January 1999, the complainant asked for access to "all the
documents (Restreint, Limite, Non-paper, Meeting document, Room documents, SN document and
any other documents etc)" that had been put before a meeting of the Police Cooperation Working
Party (Experts' meeting - Interception of telecommunications) on 3-4 September 1998. The Council's
reply was virtually identical to the one given to the above application. The complainant lodged a
confirmatory application, pointing out that according to the agenda only one document of 4 pages (that
the Council had disclosed) had been put before this meeting that had lasted two days and dealt with
five substantial issues. In its decision on the confirmatory application, the Council informed the
complainant that on the basis of the 'outcome of proceedings' it had identified two further documents
that were both accessible.

According to the complainant, the Council issued the following instruction when its public register of
documents went online on 1 January 1999:

"Confidential, Restreint, SN and non-paper documents will not be included in the public
register. For this reason, from now on these documents will not be mentioned in official
Council documents (in particular: on provisional agendas and in outcomes of
proceedings)."

The complainant considered that there was no justification for the deliberate exclusion of such
documents from agendas, 'outcomes of proceedings' and the public register. It argued that without a full
list of the documents considered by the Council the citizen was unable to obtain a full understanding of
the proceedings. The complainant took the view that in neither of these two cases had the Council
indicated that further inquiries had been made in order to establish which documents had been put
before the respective meetings. Neither had the Council provided a list of documents or addressed the
issue.

In substance, the complainant made the following allegations:

1) The Council failed to provide the documents it had required, that is to say (1) all Room documents,
non-papers, meetings documents, SN ["sans numéro", unnumbered] docs etc that had been put before
specific meetings in the month of January that it had asked for on 27 January 2000 and (2) all the
documents (Restreint, Limite, Non-paper, Meeting document, Room documents, SN document and
any other documents etc) that had been put before a meeting of the Police Cooperation Working Party
(Experts' 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

THE INQUIRY

The complaint was sent to the Council of the European Union for its comments.

The Council's opinion

In its opinion, the Council made the following comments:

In the present case, 85 documents had been identified of which 68 were released to the complainant. In
more general terms, the present complaint raised a question of principle relating to the way in which the
Council operated.

The Council's rules on access to documents, unlike those of some Member States, did not distinguish
between preparatory documents and final documents: both fell within the scope of Decision 93/731 if
they were "held by the Council", including its preparatory bodies (committees and working parties).
However, not all preparatory documents were of the same nature.

On the one hand, there were documents which, although being preparatory, nevertheless represented a
certain degree of 'finality', in the sense that they could 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 'outcome of
proceedings' reflecting delegations' positions on a certain dossier). Those documents generally took the
form of official documents which, except for a very small number of documents classified confidential,
secret or top secret and relating to matters concerning security and defence or military or non-military
crisis management, were mentioned in the public register of Council documents at least with their
document number.

On the other hand, there were papers which represented the preliminary reflections 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. This
was the case, for instance, when the General Secretariat circulated 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 reflected the personal perception of a single official, which
could be incomplete or inaccurate. It was this type of papers which were usually circulated as
non-papers, SN documents or room documents or in any other informal way. Their common feature
was that they were of a purely transitory, preliminary nature: if their content was confirmed or if the
ideas presented in them were taken up by the group or committee to which they were addressed, those
would ultimately be reflected in a document which could be found on the public register.

The Council agreed 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 required to treat them in a special way -
include references to all documents in the first category. However, the Council was not of the opinion
that it was necessary or appropriate to keep a complete, centralised record and register of each paper
which was 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 'outcomes of proceedings'
of the meetings concerned, the Council's rules on access provided for access to documents in their
existing form but did not oblige the Council to include them in any particular elements of information.

The crucial problem was of course to determine the point at which a draft or informal paper was to be
considered as a document which should be registered and archived. This question was currently being
discussed in the context of the Commission proposal for a regulation based on Article 255 (2) of the
EC Treaty. At this stage, the Council was therefore not in a position to take a stand as regards the
criteria that would be applied to this effect.

The complainant's observations

In its observations, the complainant maintained its complaint and made the following further comments:

Contrary to what the Council claimed, the "reflections" of a "single person" could of greater or lesser
significance, for example if that person was the Secretary-General of the Council. Similarly a document
submitted by a "very small group of persons" could be a document expressing the views of one or more
governments or a near final draft of a measure. To argue that documents should not be recorded,
archived, registered or accessible to citizens when they were produced by a "single person" or a "very
small group of persons" was an extremely dangerous idea in democracy.

The point was not whether documents of a "purely transitory, preliminary nature" were reflected in the
final document but rather that the citizen had a right to know what arguments were on the table and
which were accepted and which rejected. Citizens had a right to know what influences were brought to
bear in determining public policy.

Decision 93/731 made no distinction between "official documents" and documents "of a purely
transitory, preliminary nature". It defined the term 'document' as being a document held by the Council.
The Council's response thus indicated that it did not abide by that definition.

To suggest, as the Council did, that to keep a complete, centralised record and to register every paper
which was circulated to the members and representatives of the Council would impose a heavy
administrative burden was not in accord with good administrative practice let alone basic democratic
standards.

The complainant enclosed a copy of the 'outcome of proceedings' for the meeting on 3 and 4
September 1998 that he had obtained in the meantime and pointed out that this document listed, in
addition to the documents that had been mentioned by the Council in its decision on the complainant's
request for access, several other documents that had been put before that meeting. In view of this
document, the complainant suggested that the Council's examination of these 'outcomes' had, to say the
least, been partial.

The complainant therefore invited the Ombudsman to address a recommendation to the Council.

THE DECISION

1 Failure to provide documents

1.1 The complainant claims that the Council failed to provide the documents it had required, that is to
say (1) all Room documents, non-papers, meetings documents, SN ["sans numéro", unnumbered] docs
etc that had been put before specific meetings in the month of January that it had asked for on 27
January 2000 and (2) all the documents (Restreint, Limite, Non-paper, Meeting document, Room
documents, SN document and any other documents etc) that had been put before a meeting of the
Police Cooperation Working Party (Experts' meeting - Interception of Telecommunications) on 3-4
September 1998.

1.2 The Council has not made any express comments regarding this aspect of the complaint. From the
comments it has made regarding the complainant's second allegation it emerges, however, that the
Council appears to believe that the relevant documents are not covered by Council Decision
93/731/EC of 20 December 1993 on public access to documents(3) and that it thus does not have to
grant access to these documents. The Council suggests that a distinction should be drawn between
documents which, although being preparatory, nevertheless represent a certain degree of 'finality' on the
one hand and documents of a purely transitory, preliminary nature on the other hand. It appears that the
Council believes that the rules on access to documents only apply to the first of these two categories.

1.3 Article 1 (1) of Decision 93/731 provides: "The public shall have access to Council documents
under the conditions laid down in the Decision." The term 'Council document' is defined in Article 1 (2)
as meaning "any written text, whatever its medium, containing existing data and held by the Council,
subject to Article 2 (2)."

1.4 Decision 93/731 has to be seen in the context of the Code of Conduct concerning public access to
Council and Commission documents(4) adopted by the Council and the Commission on 6 December
1993 to which the recitals of Decision 93/731 refer. This Code of Conduct provides, inter alia: "The
public will have the widest possible access to documents held by the Commission and the Council." On
this basis, the Court of First Instance came to the following conclusion: "The objective of Decision
93/731 is to give effect to the principle of the largest possible access for citizens to information with a
view to strengthening the democratic character of the institutions and the trust of the public in the
administration."(5)

1.5 In the light of these provisions, the Ombudsman considers that there is nothing to support the
distinction put forward by the Council. Decision 93/731 covers access to any document held by the
Council, irrespective of its nature. This is in conformity with the principle of openness enshrined in
Community law. The Ombudsman agrees with the complainant's view that citizens should have the right
to know which documents were placed before the Council in order to find out what influences were
brought to bear in determining public policy. It appears useful to add that this does not mean that the
Council has to grant access to all these documents, given that Decision 93/731 sets out a number of
exceptions where access can legitimately be refused.

1.6 The Ombudsman is aware of the fact that Article 255 (2) of the EC Treaty provides that a
regulation regarding public access to European Parliament, Council and Commission is to be adopted
within two years of the coming into force of the Treaty of Amsterdam. However, no such regulation has
yet been adopted. As the Ombudsman has explained in his draft recommendation in complaint
916/2000/GG, he considers that, when examining whether or not there is maladministration, his first
and most essential task is to establish whether the administration "has acted unlawfully". The
Ombudsman takes the view that this examination must by necessity be based on the law as it stands.

1.7 On the basis of these considerations, the Ombudsman takes the view that the Council's approach in
the present case gave rise to an instance of maladministration.

2 Failure to provide or maintain a list of all the documents concerned

2.1 The complainant claims that by failing to provide a list of all the documents concerned or by failing
systematically to register and file these documents, the Council contravened the principles of good
administration.

2.2 The Council argues that it is not 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 the view of the Council, this would impose a heavy administrative
burden on its General Secretariat. The Council also points out that its rules on access provide for
access to documents in their existing form but do not oblige the Council to include them in any
particular elements of information.

2.3 The Ombudsman considers that this allegation of the complainant comprises two aspects which
need to be distinguished, namely the question whether access has to be granted to a list of documents
and the question as to whether the Council is obliged to maintain such a list.

2.4 Decision 93/731 governs access to documents "held" by the Council. The Ombudsman
understands the comments made by the Council in the sense that it does not maintain a complete list of
all the documents submitted to meetings of the Council. Since the complainant has not been able to
prove the opposite, the Ombudsman considers that its claim according to which the Council committed
maladministration by failing to grant access to such list must fail.

2.5 However, the Ombudsman takes the view that a different conclusion is warranted in so far as the
Council's failure to maintain such a list is concerned. Community law grants citizens a right to access of
documents held by the Council. As explained above, this right extends to all documents held by the
Council, irrespective of their nature. It is obvious, however, that the exercise of this right could be
seriously impaired or even thwarted if a citizen does not even know which documents are held by the
Council. The present case provides a good example of the difficulties that would arise in such cases. In
its original reply to the complainant's request for access to all the documents placed before the meeting
held on 3 and 4 September 1998, the Council took the view that the relevant documents had not been
identified precisely enough. In its decision on the complainant's confirmatory application, the Council
listed a number of documents and explained that these had been identified on the basis of the 'outcome
of proceedings'. However, the text of this 'outcome of proceedings' that was subsequently submitted by
the complainant shows that there were further documents that had been put before the relevant meeting.

2.6 In these circumstances, the Ombudsman considers that principles of good administration require
that in order to allow citizens to make proper use of their right to access to documents, all the
documents that are put before the Council are listed in a document or register that is accessible to
citizens. The additional administrative work that this will entail for the Council will have to be accepted
in view of the fundamental importance which the right of citizens to have access to documents held by
the Council has in order to guarantee openness and transparency in the latter's decision-making.

2.7 On the basis of these considerations, the Ombudsman concludes that the Council's failure to
maintain a list or register of all the documents put before the Council also constitutes maladministration.

3 Conclusion

The Ombudsman therefore considers that the Council's approach in the present case gave rise to two
instances of maladministration. He thus makes the following draft recommendations to the Council, in
accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendations

1.The Council of the European Union should reconsider the complainant's application and give
access to the documents requested, unless one or more of the exceptions contained in Article 4
of Decision 93/731 applies

2.The Council should maintain a list or register of all the documents put before the Council and
make this list or register available to citizens

The Council and the complainant will be informed of these draft recommendations. In accordance with
Article 3 (6) of the Statute of the Ombudsman, the Council shall send a detailed opinion before 31 May
2001. The detailed opinion could consist of acceptance of the Ombudsman's decision and a description
of the measures taken to implement the draft recommendations.

Strasbourg, 1 March 2001

Jacob Söderman

(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General
Conditions Governing the Performance of the Ombudsman's Duties, OJ 1994 L 113, page 15.

(2) OJ 1993 L 340, p. 43; amended by Council Decision 96/705/EC, ECSC, Euratom of 6 December
1996 (OJ 1996 L 325, p. 19).

(3) OJ 1993 L 340, p. 43; amended by Council Decision 96/705/EC, ECSC, Euratom of 6 December
1996 (OJ 1996 L 325, p. 19).

(4) OJ 1993 L 340, p. 41.

(5) Case T-174/95, Svenska Journalistförbundet v Council [1998] ECR II-2289, paragraph 66.