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Draft Ombudsman recommendation concerning access to Council documents

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01 March 2001

Strasbourg, 01-03-2001

Tony Bunyan, Esq.
Statewatch PO Box 1516
UK - London N 16 OEW

Complaint 916/2000/GG

Dear Mr Bunyan,

Please find enclosed a draft recommendation [see below] to the Council in the above case. The draft recommendation is made in accordance with Article 3 (6) of the Statute of the Ombudsman.

The operative part of the draft recommendation is as follows:

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.

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 the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.

Yours sincerely,

Jacob Söderman

Draft recommendation
to the Council of the European Union
in complaint 916/2000/GG

(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman, Footnote 1)

SUMMARY

The complaint in this case concerns the failure by the Council of the European Union to grant access to certain documents (notably agendas of the "Senior level Group" and the "EU-US Task Force").

The Council had originally argued that the documents concerned had not been prepared under the sole responsibility of the Council and that Article 2 (2) of Council Decision 93/731 on access to documents was thus applicable. According to this provision, where a document was written by another legal or natural person, applications for access must not be sent to the Council, but direct to the author. The complainant had then turned to the European Ombudsman (complaint 1056/25.11.96/Statewatch/UK/IJH). In his decision of 30 June 1998, the Ombudsman had taken the view that neither the wording of Article 2 (2) of Decision 93/731 nor the case-law of the Community courts supported the Council's position that documents of which it was a joint author fell within the scope of Article 2 (2).

The Council thereupon informed the complainant that the relevant documents were never considered by the Council as such but only by the officials in its General Secretariat who were following the matter kept copies for the purpose of their work. On this basis, the Council took the view that these documents were not "held by the Council" in the sense of Article 1 (2) of Decision 93/731 but only by officials in the General Secretariat and therefore fell outside the scope of application of Decision 93/731.

In these circumstances, the Ombudsman makes a draft recommendation in which he asks the Council 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.

[Footnote 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.]

THE COMPLAINT

The complaint was lodged by Statewatch, a private organisation, in July 2000.

Background

The complainant had asked the Council for access to (inter alia) agendas of the "Senior level Group" and the "EU-US Task Force" already in 1997. The Council refused to grant this access, arguing that the documents concerned had been prepared jointly by the Council's Presidency, the Commission and US authorities and thus not under the sole responsibility of the Council. In the Council's view, Article 2 (2) of Council Decision 93/731/EC of 20 December 1993 on public access to documents [Footnote 2] was thus applicable.

This provision is worded as follows:

"Where the requested document was written by a natural or legal person, a member state, another Community institution or body, or any other national or international body, the application must not be sent to the Council, but direct to the author."

The complainant then turned to the European Ombudsman (complaint 1056/25.11.96/Statewatch/UK/IJH). During the inquiry, the Council expressly stated that it did not consider its Presidency to be "another institution or body" within the meaning of Article 2 (2) of Decision 93/731. In his decision of 30 June 1998 [Footnote 3], the Ombudsman expressed the view that neither the wording of this provision nor the case-law of the Community courts supported the Council's position that documents of which it was a joint author fell within the scope of Article 2 (2). The Ombudsman concluded that the Council's position appeared to be based on a misapplication of Decision 93/731 and made a critical remark in which he invited the Council to reconsider the complainant's application and to grant access to the relevant documents, unless one or more of the exceptions contained in Article 4 of Decision 93/731 applied.

The present complaint

The complainant wrote to the Council to renew its request for access on 9 July 1998. The Council replied on 29 July 1998, pointing out that in view of the lapse of time it considered this letter to be a new request. As to substance, it maintained its view that Article 2 (2) applied. The complainant sent a confirmatory application on 27 August 1998. In its decision of 28 September 1998 on this application, the Council noted that draft agendas for the meetings concerned were drawn up by the participating parties which remained drafts until they were agreed. According to the Council, the agendas were never considered by the Council as such and were therefore neither registered not filed systematically in the Council's archives. The Council concluded that these documents were not "held by the Council" in the sense of Article 1 (2) of Decision 93/731 but only by officials in the General Secretariat and therefore fell outside the scope of application of Decision 93/731.

[Footnote 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). Footnote 3: Annual Report of the Ombudsman for 1998, p172.]

The complainant thereupon turned to the Ombudsman again, making the following allegations:

1) By introducing entirely new grounds for the refusal of access to the documents concerned, the Council failed to respect the decision of the European Ombudsman of 30 June 1998

2) The Council erred when claiming that the General Secretariat was not part of the Council

3) By failing systematically to register and file the documents concerned, the Council breached its duty to keep records

4) The Council failed to give sufficient reasons for its decision

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:

1) The Council did not fail to respect the Ombudsman's decision of 30 June 1998

As the Ombudsman had pointed out himself, the only authority competent to give a final ruling on the interpretation of Community law was the Court of Justice. Certainly, the Ombudsman's views could provide useful guidance in this respect to the institution concerned which, in the light of the Ombudsman's views, would usually re-examine its position. In the present case, the Council did reconsider its first decision. While it left open its position as to the problem of documents of which the Council was one of the coauthors, it concluded, after careful consideration, that the documents in question were still to be refused, albeit for different reasons than those stated in its first decision. This new decision could be the subject of a new complaint to the Ombudsman.

2) The General Secretariat was not "part of the Council"

This question was currently under examination by the Court of First Instance (in case T205/00, Spa Renco v. Council). Pending these proceedings, the Council would therefore abstain from commenting further on it in the present context.

3) The obligation to register documents and the duty to keep records

For the reasons set out in more detail in its response concerning complaint 91 7/2000/GG lodged by the same complainant, 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 held by one of its officials.

4) The Council gave sufficient reasons for its decision

The adequacy of the reasons given for a decision was a question that affected the legality of that decision, the review of which did not fall within the remit of the Ombudsman's competencies.

The complainant's observations

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

The Council's view that it was free to refuse access to the relevant documents on new grounds and that a complaint could then be brought against this new decision entailed the risk of a circular process that could go on for ever and that could potentially undermine the role of the Ombudsman. The complainant did not have any knowledge about case T-205/00. It was possible that the Council was simply making the same argument there that it had made in the present case. In any event, it was inconceivable that the Court would decide that the General Secretariat was not part of the Council. This argument of the Council could therefore only be viewed as an attempt to delay a decision.

Regarding the duty to give reasons, the issue at stake here was one of maladministration for which the Ombudsman was the statutory authority. In any event, it was necessary for an institution to provide sufficient reasoning to allow for judicial review. The Council had consistently failed to do so in the present case.

THE DECISION

1 Failure to respect the decision of the Ombudsman of 30 June 1998

1.1 The complainant asked the Council of the European Union for access to certain documents (notably agendas of the "Senior level Group" and the "EU-US Task Force") under Council Decision 93/731/EC of 20 December 1993 on public access to documents) [Footnote 4]. The Council originally argued that the documents concerned had not been prepared under the sole responsibility of the Council and that Article 2 (2) of Council Decision 93/731 on access to documents was thus applicable. The complainant then turned to the European Ombudsman (complaint 1056/25.11.96/Statewatch/ UK/IJH). In his decision of 30 June 1998, the Ombudsman took the view that neither the wording of Article 2 (2) of Decision 93/731 nor the case-law of the Community courts supported the Council's position that documents of which it was a joint author fell within the scope of Article 2 (2). When the complainant subsequently renewed his application for access, the Council informed it that the relevant documents were never considered by the Council as such but only by the officials in its General Secretariat following the matter who kept copies for the purpose of their work. On this basis, the Council took the view that these documents were not "held by the Council" in the sense of Article 1 (2) of Decision 93/731 but only by officials in the General Secretariat and therefore fell outside the scope of application of Decision 93/731. The complainant claims that by introducing entirely new grounds for the refusal of access to the documents concerned, the Council failed to respect the decision of the European Ombudsman of 30 June 1998.

[Footnote 4: 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).]

1.2 The Council points out that while the Ombudsman's views could provide useful guidance, the only authority competent to give a final ruling on the interpretation of Community law is the Court of Justice. The Council further claims that it did reconsider its position in the light of the Ombudsman's decision of 30 June 1998 and arrived at the conclusion that the documents in question were still to be refused, albeit for different reasons than those stated in its first decision.

1.3 In his decision of 30 June 1998 on complaint 1056/25.11.96/Statewatch/ UK/IJH, the Ombudsman made a critical remark in which he invited the Council to reconsider the complainant's application and to grant access to the relevant documents, unless one or more of the exceptions contained in Article 4 of Decision 93/731 applied. The Ombudsman considers that the Council did indeed, in its decision of 28 September 1998, reconsider its position. Although Article 1 (2) of Decision 931731 had not been invoked by the Council in reply to the complainant's first request for access to the documents concerned, the Ombudsman takes the view that his decision of 30 June 1998 did not prevent the Council from subsequently relying on this provision if it arrived at the conclusion, upon having reconsidered its position in the light of the Ombudsman's comments, that it was applicable. The Ombudsman notes the complainant's concern that this might lead to a circular process that could go on for ever. In his view, principles of good administration prevent an administration from arbitrarily substituting the reasons for its decision by new ones. The Ombudsman considers, however, that there is no evidence to show that this would have been the case here.

1.4 On the basis of the above, there appears to have been no maladministration on the part of the Council in so far as the first allegation is concerned.

2 The General Secretariat as part of the Council

2.1 The Council claims that the relevant documents were never considered by the Council as such but only by the officials in its General Secretariat following the matter who kept copies for the purpose of their work. On this basis, the Council takes the view that these documents were not "held by the Council" in the sense of Article 1 (2) of Decision 93/731. The complainant claims that this is incorrect.

2.2 The Council claims that the question as to whether the General Secretariat is an institution "different" from the Council is currently under examination by the Court of First Instance (in case T-205/00, Spa Renco v. Council). Pending these proceedings, the Council would therefore abstain from commenting further on it in the present context.

2.3 Article 1 (2) of the Statute of the European Ombudsman [Footnote 5] provides that the Ombudsman may not intervene in cases before courts. This means that the Ombudsman is prevented from examining or continuing to examine a complaint where the relevant facts have also been submitted to a court [Footnote 6]. The Ombudsman notes, however, that the case referred to by the Council concerns a different set of facts, as shown by the summary of case T-205/00 that was published in the Official Journal [Footnote 7]. It may be that in that case, the Council has made the same argument as in the present case, i.e. that a distinction should be made between the Council and its General Secretariat for the purposes of applying Decision 93/731. The Ombudsman does however not consider it necessary or appropriate to suspend his examination of this issue pending the proceedings before the Court.

2.4 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)."

2.5 Decision 93/731 has to be seen in the context of the Code of Conduct concerning public access to Council and Commission documents [Footnote 8] 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." [Footnote 9]

[Footnote 5: 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. Footnote 6: Cf. Article 2 (7) of the Ombudsman's Statute which reads as follows: "When the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed without further action." Footnote 7: OJ 2000 C 285, p19. Footnote 8: OJ 1993 L 340, p 41. Footnote 9: Case T-174/95, Svenska Journalistforbundet v Council L 1998] ECR II-2289, paragraph 66.]

2.6 The Ombudsman considers that this objective would not be attained if it were to be accepted that documents of which the Council is the author (or co-author) should not be covered by Decision 93/731 for the simple reason that they are not held by the Council itself but its General Secretariat. According to Article 207 (2) of the EC Treaty, the Council shall be assisted by a General Secretariat. The Ombudsman is however not aware of any provision in the Treaty or in Community law acts that would suggest that the General Secretariat ought to be considered as an institution or body separate from the Council. Decision 93/731 itself attributes an important role to the General Secretariat in so far as access to documents is concerned by directing applicants to write to "the relevant departments of the General Secretariat" and by charging the latter with dealing with such requests in the first place (cf. Article 7 of Decision 93/731). In the view of the Ombudsman, there is thus nothing that would warrant the conclusion that the Council's General Secretariat should be considered as "another Community institution or body" within the meaning of Article 2 (2) of Decision 93/731. The Ombudsman thus takes the view that documents held by the General Secretariat of the Council are documents "held by the Council" to which Decision 93/731 applies. It must be recalled, however, that the highest authority on the interpretation of Community law is the Court of Justice.

3 Failure systematically to register and file the documents concerned

3.1 The complainant claims that by failing systematically to register and file the documents concerned, the Council breached its duty to keep records.

3.2 The Council replies that for the reasons set out in more detail in its response concerning complaint 917/2000/GG lodged by the same complainant, it is not of the opinion that it was necessary or appropriate to keep a complete, centralised record and register of each paper which was held by one of its officials.

3.3 The relevant issue has also been raised in complaint 917/2000/GG. Both the Council and the complainant have made detailed comments on that issue in this complaint, and the Ombudsman will consider these arguments when he deals with complaint 917/2000/GG. The Ombudsman therefore takes the view that there is no need further to examine this issue in the context of the present inquiry.

4 Failure to give reasons

4.1 The complainant claims that the Council failed to give sufficient reasons for its decision, given the way in which it changed the justification for refusing access to the documents concerned during the procedure and that the reasoning was unacceptably vague and confusing.

4.2 The Council takes the view that the adequacy of the reasons given for a decision is a question that affects the legality of that decision, the review of which does not fall within the remit of the Ombudsman's competencies.

4.3 Article 195 of the EC Treaty entrusts the Ombudsman with the task of examining possible instances of maladministration. The term "maladministration" is not deemed in the EC Treaty or the Ombudsman's Statute. It is useful to recall that in his Annual Report for 1997 [Footnote 10], the Ombudsman stated that he considered the following interpretation of the term "maladministration" to be appropriate: "Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it." The Ombudsman added [Footnote 11] that when investigating whether a Community institution or body has acted in accordance with the rules and principles which are binding upon it, the Ombudsman's "first and most essential task must be to establish whether it has acted unlawfully". The European Parliament adopted a resolution on 16 July 1998 welcoming the definition of maladministration. The Ombudsman thus considers that his mandate allows him to examine complaints in which it is alleged that an institution has failed to give sufficient reasons for its decision.

4.4 The Ombudsman takes the view, however, that the reasons given by the Council in its decision of 28 September 1998 were sufficient since the Council made it clear that the refusal of access to the relevant documents was based on Article 1 (2) of Decision 93/731. The question as to whether the Council acted properly when changing the reasons on which it based its refusal during the procedure has already been considered (see point 1.3 above).

4.5 On the basis of the above, there appears to have been no maladministration on the part of the Council in so far as the fourth allegation is concerned.

5 Conclusion

The Ombudsman therefore considers that the Council's approach in the present case gave rise to an instance of maladministration in so far as it based its refusal to grant the complainant access to the relevant documents on Article 1 (2) of Decision 93/731.

The Ombudsman therefore makes the following draft recommendation to the Council, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

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.

The Council and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Council shall send a detailed opinion by 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 recommendation.

Strasbourg,

Jacob Söderman

[Footnote 10: At page 23. Footnote 11: At page 24.]

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.