EUROPEAN COMMISSION Brussels, 24.8.2016 COM(2016) 533 final REPORT FROM THE COMMISSION on the application in 2015 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents



The effective implementation of the public's right to access documents held by the EU institutions is one of several means by which the EU seeks to increase transparency and accountability towards its citizens. In 2015, the Commission continued to put into practice its strong commitment to increased transparency in several ways. By the end of December 2015, information had been published about more than 7,000 bilateral meetings between Commissioners, Cabinet members and Directors General, and interest representatives. This allows citizens and stakeholders to know who is meeting the Commission and on which subjects. A new, improved version of the Transparency Register was launched in January 2015. The Commission's Decision that Commissioners, Cabinet Members and Directors General only meet interest representatives who feature on the Transparency Register has considerably increased the visibility of entities seeking to influence policy formulation and implementation at EU level. The Register continued to grow steadily and currently contains over 9,300 entries, having attracted over 3,600 new registrants since January 2015. During the second part of 2015, the Commission also implemented a good part of its Better Regulation Agenda presented in May 2015, with the objective of ensuring that EU policies to achieve their objectives in the most effective, efficient and transparent way. The Inter-institutional Agreement on Better Law-Making which the Commission proposed last year and was recently adopted reflects a shared commitment by the European Parliament, the Council and the Commission to improve transparency throughout the cycle of European decision-making. The Commission has also set up new stakeholder feedback mechanisms at very early stages in the preparation of proposal by publishing roadmaps and inception impact assessments. The Commission honoured its commitment made in November 2014 to inject more transparency into the negotiations for a Transatlantic Trade and Investment Partnership (TTIP) with the United States. As from January 2015, it has been publishing and updating, on a regular basis, a list of TTIP documents and making public more negotiating texts and detailed reports of the negotiating rounds. Within this broader transparency agenda, the right of access to documents, laid down in Article 15(3) of the Treaty on the Functioning of the European Union and Regulation 1049/2001, continued to be one of the main cornerstones of the Commission's approach to transparency. It complemented the Commission's proactive publication, in parallel, of a wealth of information and documentation on its various webpages. 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, provides information on how the Commission applied the access-to-documents rules in 2015. It includes data on the number of access requests and the disclosure rate, and is based on statistical data which are summarised in annex. The statistics reflect the number of applications and replies and not the number of documents requested or released, which were far more numerous. Indeed, applications may cover a single document but more frequently a multitude of documents, or even entire files concerning a specific subject or procedure. The importance of the right of access to documents within the Commission's transparency policy is immediately apparent from these statistics, as the requested documents were fully or partially disclosed in 84% of cases at the initial stage, and wider or even full access was granted in 41% of cases reviewed at the confirmatory stage. 1.Registers and Internet Sites 1.1.In 2015, 18,945 new documents were added to the register of Commission documents (see annex – table 1). 1.2.In 2015, the Commission's public register covered the following documents: COM, SEC, C, JOIN, SWD, OJ and PV series. No sensitive documents were created or received by the Commission in 2015, that would fall within one of these categories of documents. 1.3.The following table shows the statistics for 2015 on consultation of the Access to Documents website on EUROPA.



Unique visitors Visits Pages viewed Total 15,525 18,939 23,324 Monthly average 1,294 1,578 1,944 2.Cooperation with the other Institutions subject to the Regulation The three institutions (European Parliament, Council and Commission) held regular technical meetings, at administrative level, to share experiences, develop best practices and ensure a consistent application of the Regulation. 3.Analysis of Access Applications 3.1.In 2015, the inflow of access-to-documents requests at the initial stage increased by more than 8% (6,752 applications in 2015 compared to 6,227 in 2014). The number of initial replies based on Regulation 1049/2001 similarly increased, from 5,637 in 2014 to 5,819 in 2015 (see annex – table 2).

3.2.As regards confirmatory applications for a review, by the Commission, of the initial full or partial refusal, the number of applications received slightly decreased (284 new confirmatory applications in 2015 against 300 in 2014). Accordingly, the number of confirmatory replies issued also decreased, from 327 in 2014 to 291 in 2015 (see annex – table 5). 3.3.The Directorate-General for Health and Food Safety received the highest proportion of initial requests (9.2% of the total), whilst the Secretariat General occupied the second rank, with a decrease from 11.6% in 2014 to 8.7% in 2015. Initial requests for documents held by the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs increased from 5% to 8.6%, putting it in third place. Four other Directorates-General received a number of requests representing more than 5% of total requests (Competition, International Cooperation and Development, Environment, and Taxation and Customs Union). The remaining Directorates-General account for less than 5% of all initial requests (see annex – table 10). 3.4.Most applications in 2015 originated from citizens that did not specify their socio-professional profile (23% of the total number of applications). Amongst those who did, the academic world was the most active category of applicants, accounting for 22.3% of initial applications (in comparison with 19.8% in 2014), whilst the third rank was occupied by civil society, with 15.6% of total applications. Applications by lawyers, occupying the fourth place, decreased significantly, from 18.3% in 2014 to 13% in 2015 (see annex – table 8). 3.5.Regarding the geographical breakdown of initial applications, the largest proportion continued to originate from Belgium (26.8%) and Germany (11.7%). Applications from Spain increased significantly, from 6.2 in 2014 to 9.9% in 2015, putting it in third place. That Member State was followed by France and the United Kingdom (both 7.6%), Italy (7.3%) and the Netherlands (5.5%). None of the remaining Member States exceeded 5% of applications (see annex – table 9). 4.Application of Exceptions to the Right of Access 4.1.In 2015, full disclosure at the initial stage continued to be given in more than two out of every three cases with a slight decrease as compared to the previous year (68.8%, compared to 72.8% in 2014). The percentage of partially positive replies remained largely identical (15,3% in 2015 compared to 15.4% in 2014), up from a relatively lower percentage in the three previous years (7.6%, 8.6% and 10.7% in 2011, 2012 and 2013 respectively). In 2015, 15.9% of the applications were rejected (against 11.9% in 2014), i.e. a percentage similar to previous years (16.9% and 14.5% in 2012 and 2013 respectively) (see annex – table 3). 4.2.The number of cases where, following a confirmatory application, the initial (full or partial) refusal was reversed at confirmatory stage remained stable at 41.3% (the corresponding percentage in 2012, 2013 and 2014 was 43%, 44% and 43%). In 31.7% of cases, wider (though no full) access was granted than at initial level (representing an increase compared to the three previous years (when it vaccillated around 24%). The number of confirmatory applications giving rise to a fully positive confirmatory reply was lower (9.6%) than in previous years (when it varied between 15 and 20%)11 (see annex – table 6). 4.3.As regards the exceptions invoked, the protection of privacy and the integrity of the individual continued to be the main ground for (full or partial) refusal at the initial stage (with an increase from 21% in 2014 to 29.4% in 201511). It came ahead of the exception aimed at protecting the purpose of inspections, investigations and audits, which was invoked less frequently than in previous years (20.9% in 2015, against 25.3%, 23.6% and 25% in 2012, 2013 and 2014 respectively) (see annex – table 4). 4.4.The protection of the decision-making process, occupying the third place, was also less frequently invoked (20.3% in 2015, against 25.2%, 27.1% and 22.1% in 2012, 2013 and 2014 respectively). The relative use of the protection of commercial interests as an exception remained almost identical (14.8% in 2015 against 14.9% in 2014), whilst the exception based on the protection of international relations was less frequently invoked than in previous years (4.9% in 2015, against 6.2% and 7.3% in 2013 and 2014 respectively) (see annex – table 4). 4.5.At confirmatory level, the most frequently invoked main ground for confirming a (full or partial) refusal of access was, as in previous years, the protection of the purpose of inspections, investigations and audits. Its relative use increased from 33% in 2014 to 37.7% in 2015. The application of the protection of the decision-making process as an exception increased slightly from 14.5% in 2014 to 16.4% in 2015, but was stable as compared to previous years, whilst the relative importance of the 'privacy and integrity of the individual' exception as a main ground for refusal decreased from 18.1% in 2014 to 15.6% in 2015. 4.6.The third, fourth and fifth ranks were occupied by the exceptions pertaining to the protection of commercial interests (13.1%), international relations (7.4%) and court proceedings and legal advice (4.9% ). 5.Complaints to the European Ombudsman 5.1.In 2015 the Ombudsman closed 16 complaints against the Commission's handling of requests for access to documents, of which only two with a critical remark. 5.2.In 2015, the Ombudsman opened 11 new inquiries where access to documents was either the main or a subsidiary part of the complaint. This represents a significant decrease compared to the previous year, when 30 new inquiries were opened. 6.Judicial Review 6.1.As in previous years, important new case law was delivered in 2015. 6.2.The Court of Justice handed down two judgments on appeal where the Commission was a party to the proceedings. In the Stichting Corporate Europe Observatory judgment, the Court of Justice clarified that there is no basis in EU law for the alleged presumption that the fact of dispatching a document to collective entities (such as trade associations) would imply per se that such document was actually intended for a large number of persons and should therefore be made public. In its ClientEarth judgment, the Court of Justice ruled out the possibility of relying on Article 4(1) and (4) of the Aarhus Convention in order to assess the legality of Article 4(2), third indent of Regulation 1049/2001 relating to the protection of the purpose of inspections, investigations and audits. The Court also confirmed that conformity studies which, at the time of the decision on access had already led to the opening of the pre-litigation stage of infringement proceedings under Article 258 TFEU, are covered by a general presumption of non- disclosure. For other studies, a case-by-case analysis is required in order to assess whether those studies could be fully disclosed or not. 6.3.As for the General Court, it handed down eight judgments related to the right of access to documents where the Commission was a party to the proceedings. Regarding audit procedures, the General Court confirmed that, as long as such a procedure is ongoing, the documents forming part of the audit file manifestly fall in their entirety under the exception of Article 4(2), third indent of Regulation 1049/2001 relating to the protection of the purpose of inspections, investigations and audits, without it being necessary to proceed to a concrete and individual examination of each document.