# EUR-Lex - 52012DC0429 - EN

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# 52012DC0429

**REPORT FROM THE COMMISSION on the application in 2011 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents /* COM/2012/0429 final */**

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REPORT FROM THE COMMISSION

on the application in 2011 of Regulation
(EC) No 1049/2001 regarding public access to European Parliament, Council and
Commission documents

Foreword

This report, drawn up pursuant to Article
17(1) of Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents[1],
covers the year 2011 and is based on statistical data which are summarised in
the annex.

These statistics reflect the number of
applications and not of requested documents. In practice, applications may
cover a single document or entire files concerning a specific procedure.
Applications for access to documents which were publicly accessible at the time
of the request, are not included.

1.           Revision of Regulation
(EC) No 1049/2001

1.1.        Two different proposals for
the revision of Regulation 1049/2001 tabled by the European Commission are
still subject to interinstitutional reflection. The first proposal for a recast
of the Regulation, submitted by the Commission on 30 April 2008, introduces a
series of substantial amendments, clarifing the interpretation of Regulation
1049/2001. The second proposal was submitted by the Commission on 21 March 2011
with a view to adapt Regulation 1049/2001 to the formal requirements of the Treaty
of Lisbon by extending the institutional scope of the Regulation to all the
European Union institutions, bodies, offices and agencies, with some
restrictions as regards the European Court of Justice, the European Central
Bank and the European Investment Bank.

1.2.        The European Parliament
adopted its position with regard to both proposals in the first reading on 15
December 2011 proposing 63 amendments. The Danish Presidency of the Council has
been considering various options for taking the legislative process forward
with a view to reach an agreement between the European Parliament, the Council
and the Commission.

2.           Registers and Internet
Sites

2.1.        In 2011, 19,956 new
documents were added to the register of Commission documents (see table in
annex).

2.2.        According to Article 17 (1)
of Regulation 1049/2001 the Commission has to provide in its annual reports the
number of documents in its possession which are “sensitive” in the meaning of
Article 9(1) of the Regulation[2]
and have therefore not been recorded in the register. The Commission's public
register covered until the end of 2011 the documents of the COM, C, OJ, PV and
SEC series. No sensitive documents were created or received by the Commission
in 2011, that would fall within one of these categories of documents.

2.3.        The table below shows the
statistics for 2011 on consultation of the Openness and Access to Documents
website on EUROPA.

|| Number of visitors || Number of sessions || Pages viewed

Total || 41,408 || 46,191 || 425,434

Monthly average || 3,451 || 3,849 || 35,453

3.           Cooperation with the other
Institutions subject to the Regulation

The inter-institutional committee set up
pursuant to Art. 15(2) of the Regulation was not convened during 2011. The
three institutions (European Parliament, Council and Commission) maintained
regular contacts at the administrative level with a view to ensure a consistent
application of the Regulation.

4.           Analysis of Access
Applications

4.1.        In 2011, the flow of access
requests at the initial stage has remained fairly stable with a very
small increase in the number of applications (6447 in 2011 in comparison with
6361 in 2010) and even smaller decrease in a number of replies based on
Regulation 1049/2001 (6055 in 2011 in comparison with 6127 in 2010).

4.2.        As regards the confirmatory
stage, the number of the applications received diminished by almost 9 % (165
new confirmatory applications in 2011 against 181 in 2010). The total number of
responses to confirmatory applications closely corresponded to the number of
applications received (162 cases closed in 2011 in comparison with 150 in
2010). Among those, 144 replies (89 %) have been the confirmatory decisions
on access to documents under Regulation 1049/2001. Their number increased
in 2011 by 18% in comparison with 2010 where 122 such decisions have been
issued.

4.3.        In 2011, the DG for
Taxation and Customs Union received the highest number of initial requests (7.80%),
very closely followed by the DG Competition with 6.99% of initial applications,
and the DG Health and Consumer Protection, with 6.96%. It is worth noting the
increase of the interest in the recently reorganised sectors where four new
Directorates-General replaced previously existing two: Directorates-General
Mobility and Transport together with Energy (former DG Transport and Energy) as
well as Directorates-General Environement together with Climate Action (former
DG Environment).

Although the external relations of the EU have
become the competency of the newly organised European External Action Service,
in 2011 this was not yet reflected in the statistics of the Commission, as its
registers continued to cover the major part of the respective requests under
Regulatipon 1049/2001.

4.4.        The academic world proved
once again to be the most active category of applicants, accounting for 25.73%
of initial applications. As in the previous years it has been followed by the
law firms with 11.30% and civil society (NGO's, interest groups) with 8.59% of
the total number of applications. For 34.78 % of the applications, the
socio-professional profile is undefined.

4.5.        The geographical breakdown
of initial applications also remained similar to previous years with a slight
increase as regards the ever largest proportion of applications coming from
Belgium (21.42%). An almost equal number of application originated from Italy
and from Germany (12.37% and 12.27% respectively). None of the other Member
States, exceeded 10% of applications, the largest numbers coming from the
highly-populated Member States, i.e. France, Spain, the United Kingdom, the
Netherlands and Poland. The shares of applications from the 12 "new"
Member States are still slightly below the corresponding shares originating
from the "old" Member States.

5.           Application of Exceptions
to the Right of Access

5.1.        In 2011, the proportion of
applications that were fully refused in the first instance remained almost
identical to the previous year (12.17% in 2011 against 12.47 % in 2010). Full
disclosure, has been given in four out of every five cases (80.20% against
82.16% in 2010) whereas, a percentage of documents disclosed partially slightly
increased in comparison to the previous years to reach 7.63 % (in comparison
with 5.37 % in 2010).

5.2.        The number of cases where,
following a confirmatory application, the Commission reversed the position
taken by its services by fully disclosing previously refused documents,
remained fairly stable (14.58% against 15.57% in 2010). However, there were
less cases in which a refusal was fully confirmed and significantly more cases
where wider access was granted following a confirmatory application.

5.3.        Although the protection of
the Commission's decision-making process (Article 4(3)) accounted for a
slightly diminished percentage of grounds of refusal in comparison with the
previous year (25.73% against 26.42% in 2010), it comes first on the list of the
most frequently invoked exceptions, overtaking the exception of the protection
of the purpose of inspections, investigations and audits (third indent of
Article 4(2)), which dropped last year by almost 5 % to reach 21.90% of cases
(against 26.63 in 2010).

5.4.        The increasing tendency is
to be noted as regards the protection of commercial interests (16.83% against
11.84% in 2010) and the protection of international relations (12.02% against
9.83% in 2010)

5.5.        The most frequently invoked
ground for confirming a refusal of access was, as in the previous years, the
protection of the purpose of investigations (32.68% compared with 32% in 2010).

–
The protection of the Commission's
decision-making process, was invoked in 19.33% of cases (exactly the same as in
2010) but this number is a cumulated result of an increase as regards the cases
where the decision-making process was on-going (15.33% against 11.33% in the
previous year), and the parallel decrease of cases concerning opinions for
internal use, where the decision had already been taken (4 % in comparison with
8% in 2010).

–
An important increase is to be noted as regards
the protection of privacy and integrity of individuals (20.67% against 9.33% in
2010). On the other hand, the protection of commercial interests was invoked
slightly less frequently than in the previous years (14.10% compared with
16.67% in 2010), and the exception of the protection of court proceedings and
legal advice even more so (1.33% against 10% in the previous year).

6.           Complaints to the European
Ombudsman

6.1.        In 2011 the Ombudsman
closed the following 17 complaints against the Commission's handling of
requests for access to documents:

1 case closed without a finding of any form of maladministration

1735/2010/MHZ ||

8 cases closed with a critical and/or a further remark

56/2007/PB || 3196/2007/(BEH)VL || 1633/2008/DK || 1294/2009/TN

271/2010/GG || 1403/2010/GG || 2073/2010/AN || 339/2011/AN

8 cases closed without further action

715/2009/ANA || 1861/2009/(JF)AN || 1051/2010/BEH || 1109/2010/VL

1577/2010/GG || 1581/2010/(FS)GG || 2609/2010/BEH || 2691/2010/(VL)GG

6.2.        In the course of the year
the Ombudsman opened 10 new inquiries where access to documents was either the main
or a subsidiary part of the complaint. This is considerably less than in 2010,
when 22 investigations were opened.

7.           Judicial Review

As in previous years, signifiant new case law
was delivered in 2011 [3].

7.1.        The Court of Justice handed
down one important judgment on appeal in the My Travel case[4]. The Court reinforced the
burden of proof for invoking the exceptions aimed at protecting the
decision-making process and legal advice with regard to internal documents
related to a non-legislative matter, where a decision has already been adopted.

7.2.        As for the General Court,
it has handed down 6 judgments related to the right of access to document:

T-362/08 IFAW v Commission, judgment of 13.1.2011 || T-250/08, Batchelor v Commission, judgment of 24.5.2011 || Joined cases T-109/05 et T-444/05, Navigazione Libera del Golfo v Commission, judgment of 24.5.2011

T-161/04, V. Jordana v Commission, judgment of 7.7.2011 || T-29/08, LPN v Commission, judgment of 9.9.2011 || T-437/08 CDC v Commission, judgment of 15.12.2011

In the Batchelor and IFAW II judgments,
the Court has provided important clarifications as regards the assessment of
Member States' objections to disclosure of documents originating from them but
held by the Commission.

In Navigazione Libera del Golfo, the
General Court has annulled the Commission's decision taken prior to the Sweden
v Commisssion (IFAW I) judgment of the Court of Justice and in which
the objection of a Member State was invoked without further motivation for not
disclosing a document originating from that Member State.

In its judgment rendered in the Jordana
case, the Court clarified that Article 4(1)(b) of the Regulation is an
indivisible provision requiring that any undermining of the privacy or
integrity of the individual must always be examined and assessed in conformity
with the EU legislation regarding the protection of personal data, in
particular with Regulation 45/2001.

In the LPN case, the Court confirmed the
existence of a general presumption that disclosure of documents in infringement
proceedings in principle undermines the protection of the purpose of
investigation activities, as long as these proceedings are ongoing.

Finally, in the CDC judgment, the Court
ruled that the protection of the purpose of the investigations could not be
invoked to refuse access to a list of documents.

Three further cases have to
be mentioned which have been removed from the register following the withdrawal
by the applicant:

T-88/11 BIA Separations v Commission || T-14/11 Timab Industries and CFPR v Commission || T-399/07, Basell Polyolefine v Commission

7.3.        The
Court has decided not to adjudicate in five cases and therefore ordered their removal
from the register:

T-411/09, Terezakis v Commission || T-291/10, A. Martin v Commission || T-395/10 Stichting Corporate Europe Observatory v Commission

T-120/10 ClientEarth and Others v Commission || T-449/10 ClientEarth and Others v Commission ||

7.4.        15 new cases were brought
in 2010 against Commission decisions under Regulation (EC) No 1049/2001.

T-603/11 Ecologistas en Acción-CODA v Commission || T-545/11 Stichting Greenpeace Nederland and PAN Europe v Commission || T-534/11 Schenker v Commission

T-516/11 MasterCard and Others v Commission || T-480/11 Technion - Israel Institute of Technology and Technion Research & Development v Commission || T-362/11 Stichting Greenpeace Nederland and PAN Europe v Commission

T-341/11 Ecologistas en Acción-CODA v Commission || T-330/11 MasterCard and Others v Commission || T-278/11 ClientEarth and Others v Commission

Case T-211/11 Timab Industries and CFPR v Commission || T-111/11 ClientEarth v Commission || T-93/11 Stichting Corporate Europe Observatory v Commission

T-14/11 Timab Industries and CFPR v Commission || T-88/11 BIA Separations v Commission || T-447/11 Catinis v Commission

7.5.        Also, three new appeals
have been brought to the Court of Justice against order/judgment of the General
Court.

C-208/11P Internationaler Hilfsfonds v Commission || C-554/11 P Internationaler Hilfsfonds v Commission || Case C-135/11 P IFAW Internationaler Tierschutz-Fonds v Commission

8.           Conclusions

After nine years
of a continous increase, the number of access requests submitted to the
Commisson has remained at the same level in 2010 and 2011. With almost 6500
requests per year, the Commission handled by far the largest number of access
requests of all institutions and bodies of the European Union.

This stabilisation of the volume of requests is
possibly an indication that the right of access to documents has reached a
significant level of public recognition among European citizens, civil society
and economic operators. In the spirit of the Treaty of Lisbon, such awareness
paves the way for increased public debate and their closer participation in
shaping European policies.

On the other hand, the need to make requests
for access to documents diminishes as the Commission gradually increased
pro-active disclosure of documents and information through public registers and
websites.

Active transparency has been largely achieved
with regard to the legislative activity. A significant amount of access
requests and almost all confirmatory applications concern the Commission's
activities in the field of monitoring the application of EU law. These requests
have to be handled in parallel with the investigations concerned. In such cases
the Commission has to strike the right balance between ensuring transparency of
its activities and protecting other rights which are guaranteed by law and by
case law of the European Courts.

ANNEX

Statistics relating to
the application of Regulation (EC) No 1049/2001

1.           Number of documents
entered in the register

|| COM || C || OJ || PV || SEC || Total

2011 || 2414 || 14025 || 131 || 93 || 3293 || 19956

initial requests

2.           Applications received and
handled

|| 2009 || 2010 || 2011

Applications received || 5401 || 6361 || 6477

Replies given[5] [6] || 6636 || 7148 || 7075

Replies given based on Regulation 1049/2001 || 5055 || 6127 || 6055

3.           Result

|| 2009 || 2010 || 2011

No || % || No || % || No || %

Access granted || 4258 || 84.23 || 5034 || 82.16 || 4856 || 80.20

Access refused || 589 || 11.65 || 764 || 12.47 || 737 || 12.18

Partial access || 208 || 4.11 || 329 || 5.37 || 462 || 7.62

total || 5055 || 100 || 6127 || 100 || 6055 || 100

Confirmatory
requests

4.           Applications received and
handled

|| 2009 || 2010 || 2011

Applications received || 140 || 181 || 165

Replies to applications || 134 || 152 || 162

Decisions on confirmatory applications based on Regulation 1049/2001 || 120 || 122 || 144

5.           Result

|| 2009 || 2010 || 2011

No || % || No || % || No || %

Confirmation || 27 || 22.50 || 61 || 50 || 61 || 42.36

Partial revision || 33 || 27.50 || 42 || 34.43 || 62 || 43.05

Full revision || 60 || 50 || 19 || 15.57 || 21 || 14.58

total || 120 || 100 || 122 || 100 || 144 || 100

(1)
Breakdown of refusals by exception applied (%)

6.           Initial Requests

|| 2009 || 2010 || 2011

4.1.a. 1st indent – Protection of public security || 1.36 || 1.94 || 2.40

4.1.a. 2nd indent Protection of defence and military matters || 0.54 || 0.14 || 0.39

4.1.a. 3rd indent - Protection of international relations || 8.17 || 9.83 || 12.02

4.1.a. 4th indent – Protection of the financial, monetary or economic policy || 2.09 || 2.15 || 1.88

4.1.b. Protection of privacy and the integrity of the individual || 6.99 || 9.76 || 8.90

4.2.1st indent - Protection of commercial interests || 13.99 || 11.84 || 16.83

4.2 2nd indent - Protection of court proceedings and legal advice || 9.81 || 7.32 || 6.76

4.2 3rd indent - Protection of the purpose of inspections, investigations and audits || 27.61 || 26.63 || 21.90

4.3 subparagraph 1– Decision-making process, no decision yet taken || 17.80 || 16.80 || 17.15

4.3. subparagraph 2- Decision making process, decision already taken: opinions for internal use as part of deliberations and preliminary consultations || 7.81 || 9.62 || 8.58

4.5. Refusal by Member State/third author || 3.81 || 3.94 || 3.18

total || 100 || 100 || 100

7.           Confirmatory Requests

|| 2009 || 2010 || 2011

4.1.a. 1st indent – Protection of public security || 2.55 || 2,67 || 1.33

4.1.a. 2nd indent - Protection of defence and military matters || 0 || 0 || 2.00

4.1.a. 3rd indent - Protection of international relations || 4.38 || 6,67 || 4.67

4.1.a. 4th indent – Protection of the financial, monetary or economic policy || 3.28 || 3,33 || 3.34

4.1.b. - Protection of privacy and the integrity of the individual || 14.23 || 9,33 || 20.67

4.2. 1st indent - Protection of commercial interests || 17.52 || 16.67 || 14.66

4.2. 2nd indent - Protection of court proceedings and legal advice || 5.47 || 10 || 1.33

4.2. 3rd indent - Protection of the purpose of inspections, investigations and audits || 25.91 || 32 || 32.68

4.3 subparagraph 1 – Decision-making process, no decision yet taken || 12.77 || 11,33 || 15.33

4.3. subparagraph 2 - Decision making process, decision already taken: opinions for internal use as part of deliberations and preliminary consultations || 13.87 || 8 || 4.00

4.5. Refusal by Member State || - || - || -

total || 100 || 100 || 100

Breakdown
of requests

8.           According to social and
occupational Profile of Applicants (%)

|| 2009 || 2010 || 2011

Academics || 21.29 || 23.24 || 25.73

Lawyers || 10.24 || 10.69 || 11.30

Civil society (interest groups, industry, NGOs. etc.) || 9.85 || 8.18 || 8.59

Public authorities (other than the EU institutions) || 7.33 || 13.56 || 8.20

Other EU institutions || 3.77 || 8.32 || 8.15

Journalists || 2.02 || 3.35 || 3.25

Not specified || 45.5 || 32.68 || 34.78

total || 100 || 100 || 100

9.           According to geographical
Origin (%)

|| 2009 || 2010 || 2011

Belgium || 18.26 || 17.95 || 21.42

Italy || 7.18 || 8.85 || 12.37

Germany || 16.61 || 16.62 || 12.27

France || 8.01 || 9.05 || 8.90

United Kingdom || 6.23 || 7.24 || 8.59

Spain || 6.27 || 6.86 || 7.16

Netherlands || 5.45 || 4.43 || 4.18

Poland || 2.86 || 2.76 || 2.68

Luxembourg || 1.71 || 1.99 || 2.12

Denmark || 1.63 || 2.02 || 2.11

Sweden || 2.13 || 2.18 || 1.81

Finland || 0.78 || 0.81 || 1.57

Austria || 1.98 || 2.08 || 1.38

Portugal || 1.61 || 1.16 || 1.15

Greece || 1.06 || 1.22 || 1.10

Ireland || 0.72 || 1.49 || 1.02

Hungary || 0.70 || 0.89 || 0.96

Czech Republic || 1.11 || 4.23 || 0.93

Bulgaria || 0.56 || 0.69 || 0.93

Romania || 0.93 || 1.11 || 0.87

Slovakia || 0.50 || 0.56 || 0.56

Lithuania || 0.35 || 0.31 || 0.42

Slovenia || 0.39 || 0.52 || 0.31

Cyprus || 0.20 || 0.20 || 0.25

Estonia || 0.17 || 0.09 || 0.19

Latvia || 0.06 || 0.13 || 0.15

Malta || 0.30 || 0.22 || 0.12

Non-EU European countries || 0.83 || 0.50 || 0.40

North America || 0.37 || 0.11 || 0.23

Australia and New Zealand || 0.07 || 0.09 || 0.03

Africa || 0.20 || 0.05 || 0.02

South America || 0.09 || 0.05 || 0.02

Asia || 0.19 || 0.04 || 0.06

Not specified || 10.57 || 3.49 || 3.73

total || 100 || 100 || 100

10.         According to Area of
Interest (%)

Directorate-General / Service || 2009 || 2010 || 2011

SG – Secretariat General || 10.10 || 11.64 || 10.12

TAXUD – Taxation and Customs Union || 6.20 || 5.30 || 7.80

COMP – Competition || 7.03 || 9.07 || 6.99

SANCO – Health and Consumer || 4.69 || 5.44 || 6.96

ENV – Environment [7] || 8.37 || 4.86 || 6.37

ENER – Energy || - || 2.91 || 5.86

MARKT – Internal market and services || 7.27 || 6.14 || 5.72

ENTR – Enterprise and Industry || 4.55 || 4.48 || 4.84

HOME - Home Affairs || - || 1.63 || 4.74

TRADE – Trade || 2.08 || 3.06 || 3.47

DEVCO – Development and Cooperation-EuropeAid (former DEV + AIDCO) || 2.75 || 2.77 || 3.30

MOVE – Mobility and Transport || - || 3.13 || 3.02

SJ – Legal Service || 1.80 || 2.68 || 2.76

AGRI – Agriculture and Rural Development || 4.07 || 3.15 || 2.62

JUST - Justice (former JLS) [8] || 7.74 || 6.75 || 2.54

RELEX – External Relations[9] || 2.25 || 3.29 || 2.39

HR - Human Resources and Security + OIB + OIL - Offices for Infrastructure and Logistics in Brussels and Luxembourg + PMO – Office for Administration and Payment of Individual Entitlements || 3.15 || 2.29 || 2.34

REGIO – Regional Policy || 3.67 || 3.06 || 2.29

CLIMA – Climate Action || - || 1.21 || 2.22

INFSO – Information Society || 2.29 || 1.79 || 1.98

EMPL – Employment, Social Affairs and Inclusion || 3.28 || 2.74 || 1.64

ECFIN – Economic and Financial Affairs || 1.87 || 2.32 || 1.57

RTD – Research and Innovation  + JRC – Joint Research Centre || 1.74 || 1.82 || 1.27

COMM – Communication || 0.41 || 0.74 || 1.26

EAC – Education and Culture || 1.44 || 1.13 || 1.05

ELARG – Enlargement || 1.74 || 1.47 || 1.04

BUDG – Budget || 1.07 || 1.24 || 1.02

MARE - Maritime Affairs and Fisheries || 0.79 || 0.66 || 0.95

OP – Publications Office || 0.19 || 0.19 || 0.37

ECHO – Humanitarian Aid and Civil Protection || 0.24 || 0.28 || 0.33

OLAF – European Anti-Fraud Office || 0.24 || 0.27 || 0.25

EPSO – European Personnel Selection Office || 0.26 || 0.14 || 0.23

ESTAT – Eurostat || 0.11 || 0.31 || 0.20

DGT – Translation || 0.13 || 0.36 || 0.14

CAB – Commissioners' Cabinets || 0.30 || 0.28 || 0.11

BEPA – Bureau of European Policy Advisers || 0.06 || 0.03 || 0.11

DIGIT – Informatics || 0.07 || 0.09 || 0.09

IAS – Internal Audit Service || 0.02 || 0.09 || 0.05

SCIC – Joint Interpreting and Conference Service || 0.02 || 0.08 || 0.00

TREN[10] || 8.02 || 1.10 || -

total || 100 || 100 || 100

[1]               OJ L 145,
31.5.2001, p. 43

[2]               "Documents
originating from the institutions or the agencies established by them, from
Member States, third countries or International Organisations, classified as
"TRÈS SECRET/TOP SECRET", "SECRET" or
"CONFIDENTIEL" in accordance with the rules of the institution
concerned, which protect essential interests of the European Union or of one or
more of its Member States in the areas covered by Article 4(1)(a), notably
public security, defence and military matters" (Article 9(1)).

[3]               For
details of each case referred to below, see http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en

[4]               Case
C-506/08 P Sweden/MyTravel and Commission, of
21/7/2011.

[5]               Please note that a single request can concern several
documents and can consequently give rise to several different replies;

[6]               Please note that the category "Replies
given" includes the replies given outside the scope of Regulation
10498/2001, for example replies given under Regulation 45/2001;

[7]               Please note that DG ENV split into DG ENV and DG
CLIMA in 2010;

[8]               Please note that DG JLS split into DG JUST and DG
HOME in 2010;

[9]               Please note that most of DG RELEX activity has been
taken over by the European External Action Service as of 1 January 2011;

[10]             Please note that DG TREN split into DG ENER and DG MOVE
in 2010;