Report from the Commission on the application in 2002 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents
Date: 2003-04-29
Institutions: European Commission
Subjects: EC Regulation, access to EU information, activity report, application of EU law

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 29.4.2003
COM(2003) 216 final

REPORT FROM THE COMMISSION

on the application in 2002 of Regulation (EC) No 1049/2001 of the European Parliament
and of the Council regarding public access to European Parliament, Council and
Commission documents

   
FOREWORD

On  30  May  2001,  the  European  Parliament  and  the  Council  adopted  Regulation  (EC)
No 1049/2001  regarding  public  access  to  European  Parliament,  Council  and  Commission
documents1.  This  Regulation,  which  implements  the  new  Article  255  of  the  Treaty
establishing the European Community, is in line with the more general policy of transparency
and information, of which it forms an intrinsic part.

The  policy  of  transparency,  in  turn,  represents  one  of  the  pivotal  features  of  European
governance2,  particularly  as  regards 
the  principles  of  openness,  participation  and
responsibility.  Other  action  has  been  taken  with  regard  to  transparency,  information  and
relations  with  European  citizens.  The  Commission  has,  for  example,  adopted  minimum
standards for the consultation of civil society organisations3. It has continued to work towards
simplifying and improving the regulatory environment4 and has proposed a new information
and communication strategy to the Council5.

Regulation 1049/2002 became applicable on 3 December 2001, thereby replacing the rules on
access  previously  introduced  by  the  three  institutions6.  Article  17(1)  stipulates  that  "each
institution  shall  publish  annually  a  report  for  the  preceding  year  including  the  number  of
cases  in  which  the  institution  refused  to  grant  access  to  documents,  the  reasons  for  such
refusals and the number of sensitive documents not recorded in the register".

The present document is the first annual report of this kind drawn up by the Commission. It is
of  a  factual  nature  and  takes  stock  of  how  the  Regulation  has  been  implemented  during  its
first year in force by all Commission services, including OLAF.

On the basis of the information contained in this report and in the similar reports produced by
the European Parliament and the Council, the European Commission will publish a report on
the implementation of the principles of the Regulation by January 2004, in  accordance  with
Article 17(2) of the Regulation.

The report is divided into three parts:

A
B
C

an overview of the action taken to implement the Regulation;
an analysis of the practical application of the Regulation;
figures on the application of the Regulation.

1

2

3

4

5

6

OJ L 145 of 31.5.2001.
White  Paper  on  European  Governance,  COM(2001)  428  final;  Report  from  the  Commission  on
European Governance, COM(2002) 705 final.
Communication  from  the  Commission  -  Towards  a  reinforced  culture  of  consultation  and  dialogue  -
General principles and minimum standards for consultation of interested parties by the Commission –
COM(2002)704 final; Communication from the Commission on the collection and use of expertise by
the  Commission:  principles  and  guidelines  -  "Improving  the  knowledge  base  for  better  policies",
COM(2002) 713 final
European  Governance:  Better  lawmaking,  COM(2002)  275  final;  Action  plan:  "Simplifying  and
improving the regulatory environment", COM(2002) 278 final; Communication from the Commission
on impact assessment, COM(2002) 276 final.
An information and communication strategy for the European Union, COM(2002) 350 final.
Decision 93/731 of the Council, Decision 94/90 of the Commission, Decision 97/632 of the European
Parliament.

2

                                                
To  illustrate  the  trends  in  requests  for  access  to  Commission  documents,  the  report  also
presents the data on the last three years of implementation of the Code of Conduct introduced
pursuant to Decision 94/90. The data can thus be used to compare four years during which a
policy of transparency towards the public has been in force.

Finally, it should be pointed out that requests for information and for published documents —
of  which  there  are  a  great  many  —  are  not  recorded  as  requests  for  access  to  documents
pursuant  to  Regulation  1049/2001,  with  the  result  that  they  are  not  included  in  the  figures
shown in part C of the present report.

3

A.

Implementation of the Regulation

The Regulation makes provision for a number of specific measures to ensure that members of
the public can fully exercise the right of access guaranteed in Article 255 of the Treaty. The
Commission has also introduced a number of initiatives to put into practice the principles laid
down in the Regulation. They largely consist of support measures to improve the provision of
information to the public and to promote good administrative practice.

1.

MEASURES LAID DOWN IN THE REGULATION AND THE JOINT DECLARATION

7

1.1.

Adaptation of the rules of procedure

Article  255  of  the  EC  Treaty  makes  provision  for  the  right  of  access  to  be
implemented at two levels:

–  a  legal  framework  establishing,  for  the  three  institutions,  the  general  principles

and limitations governing this right of access;

–  specific  provisions  to  be  incorporated  into  the  rules  of  procedure  of  each

institution.

Regulation 1049/2001 lays down the general legal framework.

It  further  stipulates,  in  Article  18(1),  that  each  institution  should  adapt  its  rules  of
procedure to the  provisions contained in  the  Regulation.  On  5  December  2001,  the
the
Commission  adopted  a  Decision 
implementation of the Regulation as an annex to its rules of procedure8.

incorporate  provisions  concerning 

to 

Decision  2001/937  extends  the  right  of  access  to  Commission  documents  to  all
natural or legal persons, irrespective of nationality, place of residence or location of
registered office. It also lays down the practical arrangements for implementing the
Regulation, particularly in the following areas:

(1) 

(2) 

processing  of  applications  at  two  levels  in  order  to  guarantee  the  applicant
internal administrative means of appeal: i.e. the initial requests are processed
by  the  Directorates-General  which  authored  or  hold  the  documents  and
confirmatory  requests  are  processed  by  the  Secretary-General  acting  on
behalf  of  the  College  of  Commissioners;  where  a  confirmatory  request
concerns a document which relates to investigations carried out by OLAF, the
Director-General of OLAF takes a decision on behalf of the Commission;

consultation  of  third-party  authors:  they  are  consulted  as  soon  as  the
Commission  plans  to  disclose  a  document  from  a  third  party  which  has  not
yet  been  made  public  legitimately,  unless  its  disclosure  would  clearly
undermine one of the interests protected by the Regulation;

7

8

Joint Declaration relating to Regulation (EC) No 1049/2001, OJ L 173 of 27.6.2001.
Commission  Decision  of  5  December  2001  (2001/937/EC,  ECSC,  Euratom)  amending  its  rules  of
procedure, OJ L 345 of 29/12/2001, pp. 94-98.

4

                                                
(3) 

categories of documents which can be accessed directly: these consist largely
of  agendas  and  ordinary  minutes  of  Commission  meetings  and  documents
adopted  by  the  Commission  which  are  intended  for  publication;  moreover,
preparatory  versions  of  documents  adopted  by 
the  Commission  are
automatically  made  public  as  long  as  it  is  clear  that  none  of  the  exceptions
provided for in the Regulation applies to them.

1.2.

Establishment of an interinstitutional committee

As  the  three  institutions  use  the  same  system  for  accessing  their  documents,  the
Regulation  stipulates,  in  Article  15(2),  that  "the  institutions  shall  establish  an
interinstitutional committee to examine best practice, address possible conflicts and
discuss future developments on public access to documents".

At a tripartite meeting held on 28 November 2001, the three Presidents agreed to set
up  the  interinstitutional  committee  at  political  level  and  entrusted  the  three
Secretaries-General  with the  task  of  preparing  the  groundwork  for  this  process  and
monitoring its operation.

The  interinstitutional  committee  held  its  inaugural  meeting  in  Strasbourg  on
13 March 2002 in the presence of Patrick Cox, President of the European Parliament,
Josep Piqué, Acting President of the Council, and Loyola de Palacio, Vice-President
of  the  Commission.  During  the  meeting,  it  was  agreed  that  each  President  would
appoint a representative from his/her institution to sit on the committee and that the
meetings of the committee would be organised and chaired by each institution in turn
in the order of precedence set out in the Treaty. The committee also decided that its
meetings  would  be  prepared  by  the  Secretaries-General,  who  would  draw  up  the
agendas, and that the institution organising the meeting would take the minutes.

At  its  second  meeting,  in  Strasbourg  on  10  April  2002,  the  interinstitutional
committee discussed the following points in particular:

(1) 

(2) 

(3) 

information  for  the  public:  the  committee  decided  to  publish  a  joint
information brochure for the public (see point 2.2 below);

direct access to legislative documents (see point 2.3);

extension of the scope of the Regulation to the agencies (see point 1.6).

A third meeting was held in Brussels on 9 July 2002, at which the committee:

(1) 

(2) 

(3) 

welcomed  the  opening,  on  3  June  2002,  of  the  public  registers  of  the
Parliament and the Commission (see point 1.3)9;

reported on the progress of work on the joint information brochure;

approved  the  signing  of  a  memorandum  on  mutual  consultation  by  the
institutions;

(4) 

had an exchange of views on how to deal with extensive or abusive requests.

9

The Council has maintained a public document register since 1.1.1999.

5

                                                
These meetings were preceded  by preparatory meetings held by the senior officials
responsible for this area from  the  three institutions10. Furthermore, on  the technical
and administrative front, the officials responsible for implementing the Regulation in
the three institutions keep in touch regularly in order to ensure that the Regulation is
applied consistently, to share their experience and to identify best practice.

1.3.

Document register

To make citizens' rights under the Regulation effective, Article 11 of the Regulation
stipulates  that  each  institution  should  take  the  necessary  action  to  provide  public
access to an electronic register of documents.

Before the Regulation was adopted, the Commission provided public access via the
Internet  to  a  register  containing  references  to  correspondence  addressed  to  the
President  of  the  European  Commission11  as  well  as  replies  to  this  correspondence
and  letters  sent  by  the  President  on  his  own  initiative.  On  31  December  2002,  the
register contained references to 34 383 documents.

In  order  to  improve  public  access  to  information  on  legislation  in  preparation,  the
Commission  also  set  up  a  database  of  documents  which  form  part  of  the  decision-
making  process  between  the  Commission  and  the  other  institutions.  The  database
provides  information  on  the  progress  of  the  procedure  and  gives  direct  access  to
electronic versions of the preparatory acts which are available12.

The Commission also installed a new register of internal and preparatory documents,
which was made available to the public on 3 June 2002. Given that  the Regulation
gives priority to legislative documents,  as  set  out in  Article  12(2),  the Commission
decided  that  the  register  should  initially  list  documents  with  the  codes  "COM,  "C"
and "SEC", as of 1 January 2001.

The "COM" series of documents covers all the proposals and communications which
the  Commission  addresses  to  the  Council  and  the  European  Parliament.  The  "C"
series brings together the legal instruments adopted by the Commission by virtue of
its own powers or delegated powers. Both series thus cover the legislative functions
of the Commission. Finally, the "SEC" series covers internal documents concerning
the  decision-making  process  and  the  general  operation  of  the  Commission's
departments.

The  register  can  be  accessed  on  the  Internet13.  To  make  it  easier  to  search  for
documents,  the  register  appears  on  the  same  website  as  the  other  electronic
information  sources.  A  help  page  provides  information  on  how  to  use  the  site.
Published documents are made directly accessible by means of an electronic link to
the full text in the Eur-Lex system14. On 31 December 2002, the register  contained
references to 24 942 documents.

10

11

12

13

14

The Commission is represented by Moavero Milanesi, deputy Secretary-General.
This register was set up on the personal initiative of the President in order to improve transparency in
accordance with the undertaking he gave to the European Parliament on 14 September 1999, which was
published in OJ C 91 of 30 March 2000.
PreLex database.
http://europa.eu.int/comm/secretariat_general/sgc/acc_doc/index_en.htm
http://europa.eu.int/eur-lex

6

                                                
The Commission intends to gradually increase the scope of the register. To that end,
several changes are planned for 2003, in conjunction with the work to modernise the
management and electronic archiving of documents.

The register is designed to be a support tool for document searches. The accessibility
of  a  document  does  not  depend  on  the  fact  that  its  references  are  contained  in  the
register.

Article 9 of the Regulation foresees a specific treatment for “sensitive documents”15.
These documents are a particular category of “classified documents”. Pursuant to the
new  security  rules,  which  apply  as  from  1  December  200116,  internal  registers  of
classified documents are gradually being set up. Once they become fully operational,
it  will  be  possible  to  identify  each  document  being  classified  as  “confidential”  or
higher.  In  reality, the Commission produces  and  receives  a  limited  number  of  such
documents, only a part of which can be described as "sensitive documents". Among
the three categories of documents presently covered by the register (the COM, C and
SEC series of 2001 and 2002) there are no sensitive documents within the meaning
of Article 9(1) of the Regulation.

1.4.

Adaptation of the rules on public access to historical archives

In  adopting  Regulation 1049/2000,  the Community legislator wanted to ensure  that
the pre-existing rules on access to Commission documents were in keeping with the
principles  of  the  new  Regulation.  Hence,  Article  18(2)  stipulates  that  "the
Commission shall examine the conformity of Council Regulation (EEC, Euratom) No
354/83  of  1  February  1983  concerning  the  opening  to  the  public  of  the  historical
archives  of  the  European  Economic  Community  and  the  European  Atomic  Energy
Community(6) with this Regulation in order to ensure the preservation and archiving
of documents to the fullest extent possible".

The provisions of Article 3(1)(b), (1)(c) and (2) of Regulation 354/83 exclude certain
categories  of  documents  from  public  access.  However,  in  accordance  with
Regulation  1049/2001,  these  documents  are  covered  by  the  public's  right  of  access
and  their  disclosure  can  be  refused  only  on  the  basis  of  the  exceptions  set  out  in
Article 4 and the provisions relating to sensitive documents in Article 9. Moreover,
Article  4(7)  stipulates  that  only  three  exceptions  to  the  right  of  access  may,  if
necessary, apply for more than 30 years: these relate to the protection of privacy, the
protection of commercial interests and specific provisions on sensitive documents.

On 19 August 2002, the Commission adopted a proposal for a Regulation amending
Regulation  354/8317  in  order  to  bring  it  into  line  with  Regulation  1049/2001.  The
Parliament delivered its opinion at the plenary part-session in March 200318.

15

16

17

18

documents originating from the institutions or the agencies established by them, from Member States,
third  countries  or  International  Organisations,  classified  as  “TRES  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 of its Member States in the areas covered by
Article 4(1)(a), notably public security, defence and military matters
Commission Decision of 29 November 2001 (2001/844) amending the Rules of Procedure, OJ L 317,
3.12.2001, p. 1
COM(2002) 462 final.
PE 319.253

7

                                                
1.5.

Analysis of the specific rules on confidentiality in Community legislation

The  desire  to  bring  existing  legislation  into  line  with  the  principles  of  Regulation
1049/2001  is  reflected  in  more  general  terms  in  Article  18(3)  of  the  Regulation,
which stipulates that the Commission should examine whether the existing rules on
access  to  documents  conform  with  the  Regulation.  The  aim  is  to  ensure  that  the
specific rules in question do not make provision for exceptions in addition to those
set out in the Regulation.

As part of this exercise, the Commission examined more than 120 specific provisions
contained  in  current  Community  legislation  concerning  the  conditions  under  which
certain documents or pieces of information can be transmitted. It should be noted that
these provisions do not relate solely to access to documents, but often relate to access
to information.

An analysis of these provisions shows that they can be grouped into two categories.

A number of specific rules on access to documents or, as appropriate, to information
should be considered to be special cases to which one of the  general exceptions set
out  in  Article  4  of  Regulation  1049/2001  applies.  In  most  cases,  access  to  such
documents  is  refused  in  order  to  protect  commercial  interests,  personal  data  or
investigations.

None  of  these  rules  appear  to  be  incompatible  with  the  principles  set  out  in
Regulation 1049/2001. It should be stressed that all requests for access are treated on
the basis of Regulation 1049/2001 and that all decisions concerning the disclosure of
a document are taken in accordance with Article 4 of the Regulation.

Other  clauses  grant  the  parties  to  specific  proceedings  the  right  of  access  to
confidential  information  or  documents  whose  disclosure  to  the  public  would
undermine one of the interests protected under Article 4 of Regulation 1049/2001. In
such  cases,  certain  people  are  granted  specific  rights  which  go  beyond  the  right  of
public access. Such clauses exist, in particular, in the field of competition law.

1.6.

Extension of the applicability of the Regulation to the agencies

In  accordance  with  the  wording  of  Article  255  of  the  EC  Treaty,  the  Regulation
applies  only  to  the  European  Parliament,  the  Council  and  the  Commission.  The
Community  agencies  and  the  other  similar  bodies  created  by  the  Community
legislator have legal personality and therefore cannot be given the same status as one
of  the  institutions  covered  by  the  Regulation.  This  is  why,  in  adopting  the
Regulation, the three institutions stated that the similar agencies and bodies created
by  the  legislator  should  have  rules  on  access  to  their  documents  which  conform  to
those  of  the  Regulation19.  To  this  end,  it  fell  to  the  Commission  to  propose  the
necessary amendments to the acts establishing the agencies.

As  soon  as  Regulation  1049/2001  was  adopted,  the  attention  of  the  agencies  was
drawn to the fact that, in future, the Regulation  would apply  to  them, which  meant
that, where appropriate, they would have to adapt the rules of voluntary access which
they currently apply.

19

Joint Declaration relating to Regulation 1049/2001, OJ L 173 of 27.6.2001.

8

                                                
With  a  view  to  achieving  "better  lawmaking",  the  amendments  concerning  the
applicability of Regulation 1049/2001 were included in a "package" of amendments
to the acts establishing the agencies as a result of the new financial regulation. The
Commission  adopted  its  proposal  for  an  amendment  of  the  Community  bodies  on
17 July  200220.  The  proposal  is  currently  being  examined  by  the  European
Parliament and the Council.

The  amendment  involves  incorporating  a  clause  in  each  of  the  basic  regulations
stating  that  Regulation  1049/2001  applies  to  documents  held  by  the  agency  and
making its administrative board or board of management responsible for laying down
the detailed rules for the application of the Regulation.

Furthermore, a clause relating to the channels of appeal — the Ombudsman and the
Court  of  Justice  —  will  be  added  for  the  agencies  whose  founding  act  does  not
contain a general clause on jurisdiction.

2.

SUPPORT  MEASURES  CONCERNING  INFORMATION  AND  GOOD  ADMINISTRATIVE
PRACTICE

In addition to the specific measures concerning the implementation of the Regulation
set  out  in  the  previous  chapter,  Regulation  1049/2001  makes  a  number  of
recommendations  concerning  information  and  good  administrative  practice.  The
Commission has taken a number of steps to put these recommendations into practice.

2.1.

The website "Openness and access to documents"

The  Regulation  stipulates  that  the  institutions  should  inform  the  public  about  their
right of access (Article 14(1)) and facilitate the exercise of this right (Article 15(1)).

To this end, the Commission has developed and modernised the website "Openness
and  access  to  documents"  on  the  EUROPA  server,  which  it  created  to  inform  the
public about the Code of Conduct on accessing its documents. This site21 provides a
range of useful information enabling members of the public to become more familiar
with their rights and make use of them.

A key element of the site is the guide for citizens on access to European Commission
documents. The guide, which is available in all the Community languages, explains
in  detail  how  to  request  access  to  Commission  documents.  It  shows  how  to  obtain
documents which have been published or made accessible to the public, particularly
via websites, and also mentions specific contact points to which general requests for
information may be addressed.

In  order  to  make  it  easier  to  search  for  documents,  the  site  provides  access  to  the
register  of  internal  and  preparatory  documents  mentioned  above  (point  1.3),  to  the
register  of  the  President's  correspondence,  and  to  various  other  sources  of
information on the Commission's activities. These include:

20

21

COM(2002) 406 final.
http://europa.eu.int/comm/secretariat_general/sgc/acc_doc/index_en.htm

9

                                                
–  the  databases  relating  to  the  interinstitutional  legislative  process  and  current

Community legislation;

–  statistical data on the application of Community law;

–  the database of historical archives.

From the same screen, the user can access certain categories of documents directly:

–  agendas and ordinary minutes of Commission meetings;

–  press releases;

–  documents published in the Official Journal;

–  the Bulletin of the European Union and the General Report.

Another screen enables the user to view the organisational charts of the Directorates-
General and  departments  of  the  Commission.  Finally,  the  site  provides  links  to  the
corresponding sites of the other institutions and contains information on legislation in
the Member States concerning access to documents.

The "access to documents" site has been so successful that it is being consulted more
than 30 000 times a month.

2.2.

The interinstitutional brochure

In order to provide the public with general information on how to access documents
produced  by  the  European  Parliament,  the  Council  and  the  Commission,  the  three
institutions have published a joint brochure in all the Community languages22.

The  brochure  has  been  published  in  response  to  a  decision  of  the  interinstitutional
committee  mentioned  in  point  1.2.  It  can  be  obtained  from  the  representations,
delegations, relays and networks.

2.3.

Direct access to documents

Article 12 of the Regulation sets out recommendations on making documents directly
accessible  to  the  public,  particularly  documents  connected  with  the  Community
legislative  process.  Article  13,  which  relates  to  documents  to  be  published  in  the
Official Journal, confirms an existing practice.

The  categories  of  documents  which  are  made  directly  accessible  to  the  public  are
detailed in Article 9 of the implementing rules23.

By  virtue  of  these  provisions,  the  agendas  and  ordinary  minutes  of  Commission
meetings  can  be  accessed  directly  from  the  aforementioned  "access  to  documents"
site24. Documents adopted by the Commission which are intended for publication in

22

23

24

Catalogue number: KA-41-01-187-EN-C - ISBN 92-894-1904-0.
OJ L 345 of 29/12/2001, p. 94-98.
http://europa.eu.int/comm/secretariat_general/sgc/acc_doc/index_en.htm

10

                                                
the Official Journal can be accessed via the Eur-Lex system25 in the days following
their adoption.

Documents  which  have  already  been  disclosed  in  response  to  a  prior  request  or
documents  produced  by  third  parties  which  have  already  been  disclosed  by  the
author or with his consent are made available on request.

In addition to the documents which are made directly accessible in accordance with
the  arrangements  for  implementing  the  Regulation,  the  Directorates-General  and
other  Commission  departments  disseminate  a  large  quantity  of  documents  via  the
EUROPA  server  and provide  access to around  50 databases. This server  represents
an  excellent  way  of  accessing  information  on  the  activities  of  the  European
Commission. In 2002,  some  500  million documents  were  consulted  or  downloaded
on the EUROPA site.

2.4.

Raising staff awareness and providing information and training for staff

It  was  not  possible  to  implement  the  new  system  for  allowing  public  access  to
documents  without  providing  training  for  the  staff  concerned.  It  was  particularly
important  to  make  staff  aware  of  the  obligations  arising  from  Article  15(1)  of  the
Regulation, which stipulates that the institutions should develop good administrative
practices  in  order  to  facilitate  the  exercise  of  the  right  of  access  guaranteed  by  the
Regulation.

The new Regulation continues to make provision for the decentralised processing of
requests for access to documents. Initial training has been provided for members of
the  network  of  officials  responsible  for  the  system  within  the  various  Directorates-
General. This network, which was created with a view to implementing the Code of
Conduct,  serves  as  a  forum  for  the  exchange  of  information,  experience  and  good
practice. The members of the network also pass on information to their Directorates-
General and departments. They have thus ensured that their colleagues have received
appropriate training  and  have made staff in their  Directorates-General  aware  of  the
implications of the new Regulation.

A practical guide has been made available to officials in order to help them process
requests  for  access  to  documents.  This  guide,  which  can  be  found  on  the
Commission's  internal  website,  can  also  be  consulted  by  the  staff  of  the  other
Community institutions.

Finally,  a  module  focussing  on  the  public's  right  of  access  to  documents  has  been
incorporated into the training course for new Commission officials.

25

http://europa.eu.int/eur-lex/

11

                                                
B.

Practical application of the Regulation in 200226

1.

GENERAL RISE IN THE NUMBER OF REQUESTS FOR ACCESS

The  year  2002  was  marked  by  a  major  change  in  the  policy  of  allowing  access  to
Commission  documents.  The  number  of  initial  requests,  which  had  remained
relatively constant during the last three years of implementing the Code of Conduct,
more than doubled during the first year of implementing Regulation 1049/2001 (the
number rose from 450 requests in 2001 to 991 in 2002). The number of confirmatory
requests also almost doubled.

Although there are no objective factors which explain the reasons for this spectacular
increase  in  the  number  of  requests,  it  can  no  doubt  be  attributed  largely  to  the
adoption of the Regulation and the publicity surrounding it and to the opening of the
public register.

The type of requests and their origin have also  changed during the past  year. Some
trends are worth mentioning:

(cid:1)  An  increase  in  requests  has  been  particularly  noticeable  in  the  fields  of
competition and of customs and taxation; the percentage of requests in these areas
has  doubled,  which  means  a  fourfold  increase  in  absolute  figures.  However,  the
percentage  of  requests  concerning  the  internal  market  has  remained  constant
(which  still  means  that  the  actual  number  of  requests  has  doubled),  while  the
percentage  of  requests  relating  to  environmental  policy  has  fallen  to  less  than  a
half (the number of requests remains more or less the same in absolute figures). It
is  noteworthy  that  almost  40 %  of  the  total  number  of  requests  falls  within  the
remit of 4 Directorates-General, whereas the Secretariat-General deals with 15 %
of the total number of requests received by the Commission.

(cid:1)  The proportion of requests from members of the public or people who do not say
that they are acting on behalf of any particular organisation has risen sharply from
an average of 10% to over 30%. This is explained in part by the high number of
requests submitted by e-mail, where only the requester's name is shown.

(cid:1)  The  interest  shown  by  law  firms  in  accessing  documents  has  continued  and
remains  steady  at  around  22-23%.  Although,  in  percentage  terms,  the  interest
shown by law firms has remained stable, the numbers of requests from this sector
has actually doubled.

(cid:1)  In relative terms, requests from the academic sector have fallen sharply from 22%
to 12%, which nevertheless corresponds to a slight increase in absolute figures.

26

Only requests for access to documents  which  have not  been  published  or  which  are  not  in  the  public
domain are considered to be requests for access in accordance with Regulation 1049/2001.

12

                                                
(cid:1)  Many  requests  for  access  submitted  to  the  Commission  are  very  extensive  and
vague. For example, a large number of requests relate to accessing all documents
on  a  particular  subject.  Requests  of  this  kind  can  cover  hundreds  of  documents.
They tend to be submitted by researchers, students and law firms.

2.

INITIAL REQUESTS

The number of requests has more than doubled — rising from 450 in 2001 to 991 in
2002. The number of identifiable documents taken into consideration for all requests
has increased almost fourfold.

The proportion of negative replies to initial applications has gradually increased over
the  past  four  years.  It  stood  at  approximately  20%  in  1999,  25%  in  2000,  30%  in
2001 and 33% in 2002.

Various factors explain the relative increase in the number of refusals:

(1) The  increasing  number  of  requests  concerning  infringement  proceedings  and
cases relating to competition policy. It should be noted that in over a third of
cases  where  access  to  a  document  is  refused  (35.9%),  the  decision  to  refuse
disclosure  is  motivated  by  the  desire  to  protect  the  purposes  of  inspections,
investigations and audits. In most cases the requests were made by law firms.
The legal appeals clearly confirm this trend (see para 4.1).

(2) The extension of the rules to include documents from third parties.

(3) The  marked  increase  in  the  number  of  Commission  documents  which  have
been  published  or  are  directly  accessible,  particularly  via  the  EUROPA
website, as requests increasingly relate to non-communicable documents.

3.

CONFIRMATORY REQUESTS

The  number  of  confirmatory  requests  has  increased  in  proportion  to  the  number  of
initial requests, going from 52 in 2001 to 96 in 2002. The percentage of confirmatory
requests compared to the number of requests which are refused at the initial stage of
the process has  remained  relatively constant and stands at around a third. Although
the increase is slight, the number of initial requests which are refused has therefore
not resulted in an increase in the number of confirmatory requests.

It is notable that the number of decisions confirming an initial refusal has remained
at  the  same  level  as  in  2001,  i.e.  around  a  third  of  cases  as  against  approximately
three  quarters  of  cases  in  1999  and  2000.  In  almost  10%  of  cases,  the  Secretary-
General granted partial access to the documents to which access was initially refused.
This percentage reflects the increased transparency which has resulted from this new
provision in the Regulation. Finally, in almost one in four cases, the re-examination
of the request for access results in a decision to grant access.

By  far  the  most  common  reason  for  refusing  a  request  is  the  protection  of  the
purposes  of  inspections,  investigations  and  audits,  which  applies  to  almost  30%  of
confirmed  decisions  to  refuse  a  request.  It  should  be  noted  that  in  almost  half  of

13

cases in which a confirmatory request is refused, the decision to refuse the request is
based on several exceptions to the right of access.

On  completion  of  the  procedure  for  processing  requests,  approximately  70%  of  all
requests are granted.

4.

4.1

APPEALS

Legal appeals

The only case which gave rise to a judgment of the Court of First Instance during the
reference  period  is  the  British  American  Tobacco  (Investments)  Ltd  v  Commission
case  (T-311/00,  ECR  2002  p.  II-2781).  In  this  judgment,  which  is  not  based  on
Regulation 1049/2001 but on Decision 94/90, the Court confirms that there is a right
of access to existing documents only.

Actions  have  been  brought  before  the  Court  of  First  Instance  of  the  EU  for  the
annulment of five decisions to refuse access, which were taken in 2002 on the basis
of Regulation 1049/2001. All these cases are pending.

(cid:1)  Case T-76/02 Messina v Commission27

The appellant has contested the implicit refusal to grant her access to an exchange of
correspondence  between  the  Commission  and  the  authorities  of  a  Member  State
concerning a notified state aid scheme about which the Commission had decided not
to raise objections.

Access  to  the  documents  concerned  was  initially  refused  on  the  basis  of  the
exception provided for in Article 4(2), third indent, of the Regulation (protection of
the purpose of the investigation). On being consulted when the confirmatory request
was examined, the national authorities said that they were opposed to the disclosure
of  the  documents  which  they  had  sent  the  Commission  in  connection  with  the
provision  of  aid.  However,  as  the  consultation  process  did  not  allow  a  reply  to  be
provided within the time-limit set by the Regulation, the appellant brought an action
for annulment of the implicit refusal of her request.

(cid:1)  Cases T-68/02 and T-159/02 Masdar (UK) v Commission28

These  appeals  concern  the  refusal  to  disclose  audit  reports  in  order  to  protect  an
investigation  (Article  4(2),  third  indent)  and,  to  a  lesser  extent,  the  commercial
interests of the company which underwent the audit (Article 4(2), second indent).

(cid:1)  Case T-168/02 Internationaler Tierschutz-Fonds (IFAW) GmbH c/Commission29

The dispute concerns the refusal, in accordance with Article 4(5) of the Regulation,
to provide access to documents originating from a Member State which did not want
them to be disclosed. The appellant has contested the Commission's interpretation of

27

28

29

OJ C 109 of 04/05/2002 p.68
OJ C 131 of 01.06.2002 and OJ C 202 of 24.08.2002 p.29
OJ C 202 of 24.08.2002 p.30

14

                                                
this provision and takes the view that a Member State's opposition to the disclosure
of a document does not constitute sufficient justification for refusing access to it.

(cid:1)  Case T-237/02 Technische Glaswerke Ilmenau GmbH c/Commission30

This  appeal  concerns  the  application  of  the  exceptions  relating  to  the  protection  of
investigations  in  the  context  of  an  aid  scheme  (Article  4(2),  third  indent)  and  the
protection of commercial interests (same article, first indent). The appellant feels that
the  Commission  has  applied  these  exceptions  across  the  board  without  clearly
illustrating the harm which would be caused by disclosing the documents requested.
She  has  also  contested  the  application  of  case  law  concerning  infringement
proceedings to cases concerning state aid.

(cid:1)  Case T-2/03 Verein für Konsumenteninformation (VKI) c/Commission31

This  appeal,  which  was  brought  on  7.1.2003,  concerns  a  Commission  decision  of
18.12.2002 to refuse access to the file relating to a cartel case. The refusal is based
on the exception concerning "investigations" (Article 4(2), third indent) as well as on
the  need  to  protect  the  commercial  interests  of  the  companies  concerned,  the  legal
procedure under way and the integrity of the individuals cited in the case file. Basing
its  decision  on  the  principle  of  proportionality,  which  has  been  recognised  by  the
Court of Justice and by the Court of First Instance in several rulings, the Commission
feels  that  a  disproportionate  administrative  burden  would  be  caused  by  examining
each individual document in order to find those parts which could be disclosed.

4.2

Complaints submitted to the European Ombudsman

Only  complaints  dealing  principally  with  a  request  for  access  to  documents  are
considered in the present report.

(cid:1)  Complaint 1128/2001/IJH by Mr Hoedeman  (on behalf of the Corporate Europe

Observatory)of 21.7.2001 (case closed)

The complaint concerns the refusal to grant access to briefing notes drawn up for the
Member of the Commission and the Director-General in connection with meetings of
the  organisation  "Transatlantic  Business  Dialogue".  It  should  be  noted  that  all  the
documents requested are available on the Internet or have been disclosed.

The request was processed under the terms of the Code of Conduct. The Ombudsman
asked the Commission to review its decision in the light of the Regulation, which had
since  come  into  force.  The  Commission  confirmed  its  refusal  on  the  basis  of  two
exceptions: the protection of the Commission's negotiating position (and thus of the
decision-making  process  —  Article  4(3),  first  indent)  and  the  protection  of
international relations (Article 4(1)(a)).

The  Ombudsman  initially  took  the  view  that  the  Commission  had  failed  to  take
sufficient  account  of  the  fact  that  it  would  be  in  the  public  interest  to  disclose  the
documents  requested.  In  a  draft  recommendation,  he  asked  the  Commission  to
disclose the documents unless there were serious reasons for refusing access to them.

30

31

OJ C 233 of 28.09.2002 p.35
OJ C 55 of 08.03.2003 p.37

15

                                                
The  Commission  provided  more  detailed  arguments,  which  were  accepted  by  the
Ombudsman. The file was closed on 9.12.2002.

(cid:1)  Complaint  1184/2002/PB  by  Mr  Jens-Peter  Bonde  MEP  of  29.5.2002  (case

closed)

This file  comprises a  number  of  very  extensive  requests  which,  to  some  extent,  go
beyond the scope of the Regulation, as some of the documents requested do not exist.
The Commission reacted as follows to these requests:

–  the  full  list  of  all  the  committees  and  working  parties  with  the  names  of  their
members: the complainant received the list of committees and working parties; a
list of members is not available, as participation in meetings varies depending on
the subject under discussion;

–  the  full  list  of  people  who  received  reimbursement  of  travelling  and  subsistence

expenses: no such list exists;

–  the list of all the documents to which access could be refused, even in part: such a

list does not exist and would be impossible to compile;

–  all  the  opinions  of  the  Legal  Service  concerning  the  Community  acquis:  this
request is too extensive; in view of the protection granted to opinions of the Legal
Service  (Article  4(2),  second  indent),  the  possibility  of  disclosing  them  must  be
examined on a case-by-case basis for specific documents;

–  screening  reports  concerning  Malta:  these  documents  do  not  come  from  the

Commission; the Member States have to be consulted.

The  Commission  sent  its  comments  to  the  Ombudsman  on  1.8.2002.  The
Ombudsman  closed  the  case  on  11.3.2003,  concluding  there  had  been  no
maladministration on part of the Commission.

(cid:1)  Complaint 1437/2002/IJH of 31.7.2002

The  complainant  is  one  of  the  private  investors  in  the  Lloyd's  insurance  market
(Lloyd's "names") who suffered financial  ruin as a  result of  the losses sustained  by
Lloyd's in the USA following extensive compensation payouts to victims of asbestos.
He  filed  a  complaint  against  the  UK  authorities  for  failure  to  apply  the  "non-life
insurance" Directive (73/239/EEC).

The complainant asked for a copy of the letter of formal notice. The refusal  by the
Internal  Market  DG  to  grant  his  request  was  confirmed  by  the  Secretary-General.
The Commission sent its comments  to the  Ombudsman  on 24.10.2003. The  case is
still pending.

(cid:1)  Complaint 1753/2002/GG of 7.10.2002

The  complainant  contests  the  refusal  to  grant  him  access  to  documents  originating
from  a  Member  State.  On  being  consulted  by  the  Commission,  the  national
authorities were opposed to the disclosure of the documents. By virtue of Article 4(5)
of  the  Regulation,  the  Taxation  and  Customs  Union  DG  refused  to  make  its

16

documents  available.  This  decision  was  subsequently  confirmed  by  the  Secretary-
General.

The  complainant  contests  in  particular  the  fact  that  the  Commission  consulted  the
national authorities. He feels that, under the implementing rules which apply  to  the
Regulation,  the  Commission  should  have  granted  him  access  to  the  documents
concerned without consulting the national authorities.

The Commission sent its comments to the Ombudsman on 9.1.2003. The case is still
pending.

17

C.

Figures concerning the application of the Regulation

Reminder:  these  statistics  relate  only  to  requests  for  documents  which  have  not  been
published.  They  do  not  include  the  numerous  general  information  queries  and  the  growing
number  of  requests  for  copies  of  published  documents,  which  have  been  dealt  with  by
Commission services.

1.

INITIAL REQUESTS

Number of initial requests

2000

481

2001

450

Number of identifiable documents taken into consideration

2000

505

2001

589

2002

991

2002

2150

Proportion of positive/negative replies (%)

2000

2001

2002

76.6 / 23.4

70.3 / 29.7

66.5 / 33.5

1999

408

1999

587

1999

81 / 19

Number of requests for which partial access was granted

1999

2000

2001

Data not available

2002

44

18

Cases  in  which  access  was  refused  —  breakdown
according to the exception invoked (%)

1999

2000

2001

2002

Protection of the public interest (public security)

Protection  of  the  public  interest  (defence  and  military
matters)

Protection of the public interest (international relations)

Protection of the public interest

(financial, economic or monetary policy)

Protection of court proceedings and legal advice

50.6

58.8

65.3

Protection 
investigations and audits

the 

of 

purposes 

of 

inspections,

-

0.46

1.8

0.46

3.7

35.9

Protection 
intellectual property

of 

commercial 

interests, 

including

2.6

4.1

2.6

3.7

Protection of privacy and the integrity of the individual
(protection of personal data)

-

2.1

1.7

5.2

Protection of the decision-making process

Confidentiality requested by a Member State

13.0

6.5

9.3

5.1

8.7

2.6

8.6

2.1

Various exceptions or unspecified exception

27,3

19.6

19.1

38.0

19

2.

CONFIRMATORY REQUESTS

Number of confirmatory requests

1999

33

2000

46

2001

52

2002

96

Breakdown 
confirmatory requests (%)

of 

decisions 

on

1999

2000

2001

2002

Confirmation of refusal

Partial access

Complete reversal

73.1

-

26.9

73

-

27

65.3

-

34.7

66.9

9.2

23.9

Cases in which refusal of access was confirmed — breakdown according to
the exception invoked (%)

2002

Protection of the public interest (public security)

Protection of the public interest (defence and military matters)

Protection of the public interest (international relations)

Protection of the public interest

(financial, economic or monetary policy)

Protection of court proceedings and legal advice

Protection of the purposes of inspections, investigations and audits

Protection of commercial interests, including intellectual property

Protection of privacy and the integrity of the individual
(protection of personal data)

Protection of the decision-making process

Confidentiality requested by a Member State

Various exceptions

-

-

7.2

-

4.4

29.4

3.3

0.6

1.6

4.4

48.9

20

3.

STATISTICS RELATING TO ALL REQUESTS

Proportion of positive replies with respect to the procedure as a whole (%)

1999

82.8

2000

80.7

2001

74.7

2002

70.7*

*

including 8.3 % of cases in which partial access was granted

Breakdown of requests

According to the professional profile
of the requesters (%)

Members of the public or unspecified

Lawyers

Civil  society  (industrial  sectors,  lobby
groups, NGOs, etc.)

Academic sector

Public authorities

Journalists

MEPs

1999

2000

2001

2002

10.5

21.6

25.4

20.4

13.2

5.7

3.2

12.6

23.5

23.2

22.0

12.0

2.6

4.1

31.8

22.4

17.8

12.3

8.6

3.8

3.1

10.5

18.4

26.0

26.2

13.4

2.5

2.7

21

2000

28.5

2.8

9.3

0.4

4.2

6.6

2.3

12.1

0.2

11.0

1.1

0.6

1.1

1.5

13.4

2.8

1.3

0.8

2001

2002

23.6

2.7

12.7

0.2

7.1

7.3

3.8

7.3

0.7

8.2

0.9

0.4

1.6

1.1

15.8

1.8

3.3

1.5

23.0

1.6

10.9

1.2

5.4

10.3

2.0

9.6

0.4

6.4

2.1

1.2

0.5

1.3

8.8

1.7

1.3

12.2

According to geographic origin (%)

1999

Belgium

Denmark

Germany

Greece

Spain

France

Ireland

Italy

Luxembourg

Netherlands

Austria

Portugal

Finland

Sweden

UK

European countries outside the
Community

Countries outside Europe

Other

27.5

1.2

10.0

1.0

7.1

10.5

1.0

7.6

1.7

9.0

1.7

0.7

0.2

2.0

15.0

1.7

2.0

0.0

22

According to subject area (%)

2000

2001

Agriculture

Anti-Fraud Office

Budget

Competition

Development

Economic and Financial Affairs

Education and Culture

Employment and Social Affairs

Energy and Transport

Enlargement

Enterprise

Environment

External Relations

Financial Control

Fisheries

Health and Consumer Protection

Humanitarian Aid

Information Society

Inspectorate-General

Internal Market

Joint Interpreting and Conference Service

Justice and Home Affairs

Legal Service

Personnel and Administration

Press

Regional Policy

Research (Joint Research Centre)

Research and Technological Development

Secretariat-General

Statistical Office

Taxation and Customs Union

Trade

Translation Service

2.2

2.2

1.6

4.3

2.4

1.4

2.0

4.5

4.0

1.4

4.1

2.9

1.2

3.7

5.2

2.4

1.4

1.7

3.5

2.3

1.2

5.0

14.6

16.3

2.8

0.2

2.2

3.0

0.6

0.6

0.0

5.7

0.0

6.3

1.8

1.8

0.2

2.6

0.4

0.6

3.7

0.6

1.0

2.7

0.4

0.6

0.4

0.0

5.8

2.9

1.9

0.8

1.7

0.2

0.6

15.8

12.1

0.0

9.7

1.0

0.0

0.4

5.0

0.8

0.2

23

2002

4.8

2.4

2.3

12.7

0.8

1.1

0.5

3.2

2.9

1.0

3.9

6.2

2.1

0.4

0.6

4.4

0.1

0.7

0.2

0.4

2.2

3.0

3.2

0.8

0.8

0.3

0.7

15.9

0.1

10.6

1.1

0.4

11.4

10.3