European Parliament resolution on the Special Report to the European Parliament following the draft recommendation to the European Commission in complaint 713/98/IJH (made in accordance with Article 3(7) of the Statute of the European Ombudsman)  (C5-0463/2001 — 2001/2194(COS))
Date: 2001-12-11
Institutions: European Parliament
Subjects: European Ombudsman, European citizenship, access to EU information, freedom of expression, personal data, protection of privacy, right to information

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Tuesday 11 December 2001

1.
Calls for the following provisions to be added to Article 194 of the EC Treaty: ‘To avoid the risk of
further infringements of the rights of a citizen drawing attention to non-compliance with a Community
provision Parliament, the Commission and the Council may, under the codecision procedure provided for
in Article 251 of the Treaty and in accordance with a request from Parliament endorsed by the Commis-
sion, formulate a new wording for the Community provision in question’;

2.
Calls on the Commission to consider measures to facilitate a rapid response in cases where the
parliamentary committee responsible, together with the Commission, establishes that a serious violation
of Community environmental or consumer protection legislation or legislation for the protection of flora
and fauna has occurred;

3.
Considers that, to implement these measures, provision should be made for new legal mechanisms
and suitably flexible procedures involving Parliament and the Commission so that immediate action can be
taken to bring to an immediate end the offending activity;

Instructs its President to forward this resolution to the Council, the Commission, the governments of

4.
the Member States and the Intergovernmental Conference responsible for amendment of the Treaties.

16. Ombudsman special report (Bavarian Lager Company) (procedure without

debate)

A5-0423/2001

European Parliament resolution on the Special Report to the European Parliament following the
draft recommendation to the European Commission in complaint 713/98/IJH (made in accordance
with Article 3(7) of the Statute of the European Ombudsman) (C5-0463/2001 1 2001/2194(COS))

The European Parliament,

1 having regard to the Special Report by the European Ombudsman to the European Parliament

(C5-0463/2001),

1 having regard to Articles 21, 194, 195, 255 and 286 of the EC Treaty,

1 having regard to Articles 1 and 6 of the Treaty on European Union,

1 having regard to its decision of 9 March 1994 on the regulations and general conditions governing

the performance of the Ombudsman’s duties (1),

1 having regard to Article 3(7) of the Statute of the European Ombudsman,

1 having regard to its previous resolutions of 16 July 1998 on the Special Report by the European
Ombudsman on public access to documents (2); of 15 May 2001 on the institution of the petition at
the dawn of the 21st century (3); of 6 September 2001 on the European Ombudsman’s Special Report
on a Code of Good Administrative Behaviour (4),

1 having regard to Articles 8 and 10 of the European Convention for the Protection of Human Rights

and Fundamental Freedoms,

1 having regard to Article 7, 8, 11, 41 and 42 of the Charter of Fundamental Rights of the European

Union,

(1) OJ L 113, 4.5.1994, p. 15.
(2) OJ C 292, 21.9.1998, p. 170.
(3)
‘Texts Adopted’, Item 8.
(4)
‘Texts Adopted’, Item 10.

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1 having regard to Regulation (EC) No 1049/2001 on public access to documents of the European

Parliament, Council and Commission (1),

1 having regard to Decision 94/90/ECSC, EC, Euratom (2),

1 having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of personal data and on the free
movement of such data (3),

1 having regard to Regulation (EC) No 45/2001 on the protection of individuals with regard to the
processing of personal data by the Community institutions and bodies and on the free movement of
such data (4),

1 having regard to Opinion 5/2001 of the Data Protection Working Party of 17 May 2001 (5),

1 having regard to Rules 47(1) and 179(2) of its Rules of Procedure,

1 having regard to the report of the Committee on Petitions (A5-0423/2001),

A. whereas any limitations of fundamental rights and freedoms must be clearly demarcated and justified
under Article 6 of the Treaty on European Union and the Charter of Fundamental Rights and Free-
doms,

B. whereas when there appears to be a collision between two or more fundamental rights or freedoms,
the first step must be to examine whether or not all such rights are genuinely applicable to the
situation at hand,

C. whereas the fundamental rights of respect for private and family life and protection of personal data
serve to protect the private life of individual citizens from unauthorised use of personal information
for commercial purposes and unjustified intrusion by public authorities,

D. whereas the principles of good administrative behaviour require that an official responsible for the

field in question must provide the public with the information requested,

E. whereas Directive 95/46/EC does not, therefore, apply to a request for information concerning the

names of participants representing a trade organisation to a meeting organised by the Commission,

F. whereas Article 27 of Directive 95/46/EC provides for the adoption by trade organisations and other
bodies representing other categories of controllers codes of conduct intended to contribute to the
proper implementation of the national provisions adopted by the Member States pursuant to this
Directive,

G. whereas draft Community codes, and amendments or extensions to existing Community codes, may

be submitted to the Working Party referred to in Article 29 of Directive 95/46/EC,

H. whereas such codes of conduct should guarantee, on the one hand, that unauthorised use is not made
of information concerning consumer behaviour and, on the other hand, that data protection is not
used in order to achieve benefits of unfair competition,

I. whereas the right to information and expression are preconditions for the formation of democratic

will formation within a society and, thus, for the democratic legitimacy of that society,

J. whereas the obligation set by Article 1 of the Treaty on European Union to take decisions as openly as

possible lays down a duty for public authorities, which corresponds to these rights,

(1) OJ L 145, 31.5.2001, p. 43.
(2) OJ L 46, 18.2.1994, p. 58.
(3) OJ L 281, 23.11.1995, p. 31.
(4) OJ L 8, 12.1.2001, p. 1.
(5) 5003/00/EN/Final 1 WP 44.

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K. whereas the Court of First Instance has considered that ‘openness enables citizens to participate more
closely in the decision-making process and guarantees that citizens can carry out genuine and efficient
monitoring of the exercise of the powers vested in the Community institutions’,

L. whereas the right to information and expression, therefore, is essential also for the efficient function-

ing of the institutions,

M. whereas activities which fall under Titles V and VI of the Treaty on European Union are excluded from

the protection of these rights under Community law,

1.
Endorses the European Ombudsman’s conclusion and considers that the Commission has misinter-
preted Directive 95/46/EC when applying the Directive to a request for information concerning the names
of participants representing a trade organisation to a meeting organised by the Commission;

2.
Considers, therefore, that the Commission should inform the complainant in complaint 713/98/IJH
of the names of the delegates of the ‘Confédération des brasseurs du marché commun’ who attended a
meeting organised by the Commission on 11 October 1996 and of companies and persons in the
14 categories identified in the complainant’s original request for access to documents who made submis-
sions to the Commission under file reference P/93/4490/YK;

3.
Notes that conflicts often exist between the demand for transparency and the protection of personal
integrity; stresses the fact that the aim of data protection is primarily to protect the private life and sensi-
tive information; considers therefore that data protection should not for instance be referred to while
persons are acting in a public capacity, while they are taking part in public decision making on their
own initiative or while they try to influence such decision making;

Asks the Working Party on Data Protection referred to in Article 29 of Directive 95/46/EC to inform
4.
Parliament on codes of conduct on data protection adopted by trade organisations and other bodies of
control in reference to Article 27(3) of Directive 95/46/EC, in particular of codes submitted to it for assess-
ment of compatibility with provisions adopted by Member States; suggests that the Working Party, in
order to achieve true Community codes of conduct, takes account also of the scope of application of
Regulation (EC) No 45/2001 and Parliament’s considerations when examining the compatibility with Com-
munity law of codes of conduct submitted to it; notes that the Data Protection Supervisor, who will be
engaged for the EU institution, will be bound by the Treaties’ principles on greater transparency in decision
making;

5.
Considers that, in the light of the fact that the regulation on access in the EU will come into force in
December 2001, an examination should be undertaken of the rules the Commission adopts and which
give confidentiality to informants;

6.
Proposes to the Data Protection Supervisor to draw up model codes of conduct with the intention of
ensuring respect for the consumers’ right to data protection and in order to set standards with a view of
preventing the abuse of data protection for purposes of unfair competition or confidential influence on
Community regulatory or financial decisions;

Regrets the en bloc exclusion of Titles V and VI of the Treaty on European Union from the scope of

7.
application of Directive 95/46/EC and Regulation (EC) No 45/2001;

Calls on the European Council in Laeken to amend the Treaties in order to include, in principle,

8.
activities falling under Titles V and VI into the scope of application of Article 286 of the EC Treaty;

9.
Instructs its President to forward this resolution to the Commission and for information to the
European Ombudsman, the Council, the governments of the Member States, the Data Protection Super-
visor and the Working Party on Data Protection.