Report from the Commission on the implementation of the principles in EC Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents
Date: 2004-01-30
Institutions: European Commission
Subjects: Council of the European Union, EC Regulation, European Commission, European Parliament, access to EU information, application of EU law, official document, report

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.1.2004 
COM(2004) 45 final 

REPORT FROM THE COMMISSION 

on the implementation of the principles in EC Regulation No 1049/2001 regarding public 
access to European Parliament, Council and Commission documents 

EN 

   EN 

 
 
 
  
FOREWORD 

The  European  Parliament,  the  Council  and  the  Commission  have,  since  3  December  2001, 
been applying Regulation No 1049/2001 regarding public access to the documents they hold1. 
Pursuant to the provisions in the Regulation (Article 17(1)), each one of the three institutions 
has published a first annual report concerning the implementation of the Regulation: 

– 

– 

– 

Note  by  the  Secretary-General  of  the  European  Parliament  to  the  Bureau,  dated  23 
January 2003, ref. PE 324.892/BUR 

Report from the Council, dated 31 March 2003, ref. 7957/03 

Report from the Commission, dated 29 April 2003, ref. COM(2003) 216 final. 

The  Regulation  also  states  that  the  Commission  shall,  by  31  January  2004  at  the  latest, 
publish  a  report  on  the  implementation  of  the  principles  of  the  Regulation  and  shall  make 
recommendations  in  this  respect  (Article  17(2)).  This  report  has  been  produced  to  comply 
with this provision in the Regulation. 

The  purpose  of  this  report  is  to  attempt  to  produce  an  initial  qualitative  evaluation  of  the 
application of Regulation 1049/2001 in the light of the principles of the transparency policy 
pursued by the Community institutions. 

It emerges from the above-mentioned annual reports that the number of applications doubled 
in 2002 compared with the previous year, during which the institutions applied the old system 
of access to their documents. The provisional figures for 2003 indicate another considerable 
increase in demand. Despite this growing number of documents requested, the rate of positive 
responses  remains  stable.  In  addition,  the  number  of  documents  made  directly  accessible  is 
constantly  growing.  There  is  thus  a  substantial  increase  in  the  number  of  documents  made 
available  to  the  general  public.  Can  we  thus  deduce  from  this  increase  that  Regulation 
1049/2001 has helped achieve the objective of granting the general public as much access as 
possible to the documents held by the Community institutions? 

This report intends to answer this question using a detailed analysis of the way in which the 
three  institutions  concerned  applied  each  of  the  provisions  in  Regulation  1049/2001.  The 
analysis is essentially based on the practical experience of the relevant departments within the 
three  bodies.  It  is  still  too  early  to  assess  the  Regulation  in  the  light  of  case  law  and  the 
decisions  of  the  European  Ombudsman.  Two  years  after  the  implementation  of  the 
Regulation,  only  one  ruling  had  been  issued  by  the  Court  of  First  Instance2  and  eleven 
complaints had been resolved by the Ombudsman3. 

1 
2 
3 

OJ L 145, 31.5.2001, p. 43. 
Ruling of 17.9.2003 in the case T-76/02 Messina v. Commission, not yet published. 
Six  complaints  against  the  Council:  917/2000/GG,  1542/2000/PB,  573/2001/IJH,  648/2002/IJH, 
1015/2002/PB and 1795/2002/IJH. 
Five  complaints  against 
1753/2002/GG and 412/2003/GG. 

the  Commission :  1128/2001/IJH,  1184/2002/PB,  1437/2002/IJH, 

2 

 
 
  
 
                                                 
 
TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

1.3. 

2. 

The Community system of access to documents: 
legal framework and characteristics............................................................................. 6 

The legal framework .................................................................................................... 6 

General principles ........................................................................................................ 6 

Innovations introduced by Regulation 1049/2001 ....................................................... 7 

Scope of the Right of Access ....................................................................................... 8 

2.1. 

Institutions covered ...................................................................................................... 8 

2.1.1.  Provisions in the Treaty and in the Regulation ............................................................ 8 

2.1.2. 

Joint declaration by the three institutions..................................................................... 8 

2.1.3.  The de facto situation ................................................................................................... 9 

2.2. 

Beneficiaries............................................................................................................... 10 

2.2.1.  Provisions in the Treaty and in the Regulation .......................................................... 10 

2.2.2.  Extension of the right of access ................................................................................. 10 

2.2.3.  Categories of persons who have availed of their right of access ............................... 10 

2.3. 

Material scope ............................................................................................................ 11 

2.3.1.  Definition of “document”........................................................................................... 11 

2.3.2.  Areas of activity covered by the right of access ........................................................ 12 

2.3.3.  Concept of “document held by an institution”........................................................... 13 

2.3.4.  Documents in the form of sound or audiovisual recordings ...................................... 14 

2.3.5.  Documents and systems in electronic format............................................................. 14 

2.4. 

2.5. 

3. 

3.1. 

3.2. 

Scope in terms of time................................................................................................ 14 

Conclusions ................................................................................................................ 14 

 Limits to the right of access ...................................................................................... 16 

General overview of the application of exceptions in 2002....................................... 16 

Absolute exceptions ................................................................................................... 17 

3.2.1.  Protection of public security ...................................................................................... 17 

3.2.2.  Protection of defence and military matters ................................................................ 17 

3.2.3.  Protection of international relations ........................................................................... 18 

3.2.4.  Protection of financial, monetary and economic policy............................................. 18 

3.2.5.  Protection of privacy and the integrity of the individual ........................................... 18 

3 

 
 
  
 
3.3. 

3.4. 

Special treatment of sensitive documents .................................................................. 19 

Exceptions subjected to a public interest test............................................................. 20 

3.4.1.  Protection of commercial interests............................................................................. 21 

3.4.2.  Protection of court proceedings and of legal advice .................................................. 21 

3.4.3.  Protection of investigations........................................................................................ 22 

3.4.4.  Protection of the decision-making process ................................................................ 23 

3.4.5.  Balancing the public interest in disclosure of a document......................................... 24 

3.5. 

Access to third-party documents................................................................................ 25 

3.5.1.  General system ........................................................................................................... 25 

3.5.2.  Documents originating from Member States ............................................................. 25 

3.5.3.  Sensitive documents................................................................................................... 26 

3.6. 

3.7. 

3.8. 

3.9. 

Partial disclosure of documents ................................................................................. 26 

Accessibility of documents over thirty years old....................................................... 27 

Access to Community documents on the basis of a national law .............................. 27 

Cases not covered by the Regulation ......................................................................... 28 

3.10.  Compatibility of specific rules of access with the general system in the Regulation 29 

3.11.  Conclusions ................................................................................................................ 29 

4. 

4.1. 

4.2. 

4.3. 

4.4. 

4.5. 

4.6. 

4.7. 

4.8. 

4.9. 

Practical application of the right of access................................................................. 30 

Admissibility of applications ..................................................................................... 30 

Time-limits for reply .................................................................................................. 30 

Complex, very long or unfair applications – proportionality..................................... 31 

Methods of access – invoicing ................................................................................... 32 

Consultation of third parties....................................................................................... 32 

Internal administrative remedy .................................................................................. 33 

External remedies....................................................................................................... 34 

Administrative burden for the institutions concerned................................................ 34 

Interinstitutional cooperation ..................................................................................... 35 

4.10.  Conclusions ................................................................................................................ 35 

5. 

Publicity and active information ................................................................................ 37 

5.1. 

Registers..................................................................................................................... 37 

5.1.1.  Nature of registers ...................................................................................................... 37 

4 

 
 
  
 
5.1.2.  Contents ..................................................................................................................... 37 

5.1.3.  Documentary field...................................................................................................... 38 

5.1.4.  Use of registers........................................................................................................... 38 

5.2. 

5.3. 

5.4. 

6. 

6.1. 

6.2. 

6.3. 

Direct access to documents and dissemination of information.................................. 39 

Assistance to applicants ............................................................................................. 40 

Conclusions ................................................................................................................ 40 

Review and outlook ................................................................................................... 41 

General right of access ............................................................................................... 41 

Clarification of material scope ................................................................................... 41 

Application of the system of exceptions .................................................................... 41 

6.4.  Workload generated by the practical implementation of the Regulation................... 42 

6.5. 

6.6. 

6.7. 

7. 

Place of the Regulation in public information policy ................................................ 43 

Recourse to the Regulation with a view to exercising specific rights of access ........ 43 

Suitability of Regulation 1049/2001 .......................................................................... 44 

Proposed actions ........................................................................................................ 45 

7.1. 

Short-term actions ...................................................................................................... 45 

7.1.1.  Recommendation to adapt rules of access to those of Regulation 1049/2001........... 45 

7.1.2.  Recommendation to extend the right of access to all natural and legal persons, 

irrespective of nationality or residence ...................................................................... 45 

7.1.3.  Development of the registers and of direct access to documents............................... 45 

7.1.4.  Development of other information tools .................................................................... 46 

7.1.5.  Strengthening interinstitutional cooperation .............................................................. 46 

7.1.6.  Appropriate training for officials responsible for access to the documents of the 

agencies and other institutions ................................................................................... 46 

7.2. 

Longer-term actions ................................................................................................... 46 

7.2.1.  List of areas lacking specific rules of access ............................................................. 46 

7.2.2.  Examination of the need or advisability of amending Regulation 1049/2001........... 46 

5 

 
 
  
 
1. 

THE COMMUNITY SYSTEM OF ACCESS TO DOCUMENTS: 
LEGAL FRAMEWORK AND CHARACTERISTICS 

To  assess  the  implementation  of  the  principles  of  transparency,  it  is  worthwhile 
recalling the legal framework of the Community system of access to documents and 
the  underlying  principles.  The  first  system  of  access  to  documents  was  established 
jointly  by  the  Council  and  Commission  in  1993-1994.  The  principles  forming  the 
basis  of  the  system  are  still  valid  today,  despite  the  substantial  modification  of  the 
legal framework in 2001. However, the new Regulation 1049/2001 introduced major 
innovations which have extended the right of access and led to a significant increase 
in demand. 

1.1. 

The legal framework 

Since 1 May 1999, the date on which the Treaty of Amsterdam came into force, the 
Treaty establishing the European Community has contained a new Article 255 which 
enshrines  the  principle  of  public  access  to  European  Parliament,  Council  and 
Commission documents. 

The scope, limits and arrangements for exercising this right of access were laid down 
in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 
30  May  2001  regarding  public  access  to  European  Parliament,  Council  and 
Commission  documents,  which  came  into  force  on  3  December  2001.  The 
Regulation establishes a common legal framework for access to the documents of the 
three institutions concerned. 

To  apply  these  common  rules,  each  one  of  the  three  institutions  adopted 
implementing rules  forming  part of their rules of procedure4. These rules cover the 
practical  arrangements  in  each  institution,  in  accordance  with  the  principles  and 
limits laid down by the Regulation. 

This  set  of  texts  replaces  the  decisions  which  the  three  institutions  had  adopted 
concerning public access to their own documents. 

1.2. 

General principles 

The  Community  system  of  access  to  documents  is  similar  to  systems  of  access  to 
documents  or  information  in  force  in  most  countries  that  have  legislation  in  this 
field5. It is also very close to the recommendation by the Council of Europe6 and the 
Convention  of  Århus7.  This  system  is  characterised  by  its  broad  scope  and  limited 
number of exceptions to the right of access, formulated in a rather general way. It is 

4 

5 

6 

7 

the 

comparative 

Decision  of  28.11.2001  of  the  European  Parliament  Bureau,  OJ  C  374,  29.12.2001,  p.  1. 
Council Decision of 29.11.2001, OJ L 313, 30.11.2001, p. 40. 
Commission Decision of 5.12.2001, OJ L 345, 29.12.2001, p. 94. 
See 
analysis 
http://europa.eu.int/comm/secretariat_general/sgc/acc_doc/index_fr.htm. 
Recommendation  (2002) 2  of  the  Committee  of  Ministers  of  the  Member  States  on  access  to  public 
documents, adopted on 21 February 2002. 
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in 
Environmental Matters, signed in Århus, Denmark, on 25 June 1998. 

“document 

available 

access” 

site: 

the 

on 

6 

 
 
  
 
 
                                                 
 
based  on  the  principle  that  all  documents  are  accessible  except  when  disclosure 
would infringe a specific public or private interest. 

The fundamental principles of the Community system of access to documents are as 
follows: 

•  General, unconditional right of access: Right of access is granted to all natural 

and legal persons. They do not have to justify their applications. 

•  Broad  definition  of  the  concept  of  document:  The  definition  of  “document” 
covers all information kept in any form whatsoever: paper, electronic medium or 
sound,  visual  or  audiovisual  recording.  However,  the  documents  must  refer  to 
areas within the competence of the institution concerned. 

•  Principle of harm: No category of document is excluded from the right of access, 
not even classified documents. Refusal to disclose a document must be based on 
an analysis of the harm that would be caused by disclosure to one of the public or 
private interests expressly mentioned in the Regulation. 

•  Administrative appeal: All decisions refusing even partial access to a document 
may  be  the  subject  of  an  administrative  appeal  to  the  institution  concerned. 
Following a confirmatory application, the institution is required to re-examine the 
application  for  access.  Reasons  must  be  given  for  a  confirmation  of  the  refusal, 
and  the  applicant  is  then  entitled  to  institute  court  proceedings  or  to  make  a 
complaint to the European Ombudsman. 

1.3. 

Innovations introduced by Regulation 1049/2001 

The  fundamental  principles  mentioned  above  were  already  present  in  the  Code  of 
Conduct adopted jointly by the Council and Commission in 1993, and implemented 
by  Council  Decision  93/731  and  Commission  Decision  94/90,  and  by  European 
Parliament  Decision  97/632.  However,  Regulation  1049/2001  has  introduced  a 
number of innovations which have considerably broadened the right of access: 

•  Abolition  of  the  originator  rule:  the  right  of  access  has  been  extended  to  all 
documents  held  by  the  institutions  concerned,  including  documents  from  third 
parties. 

•  Adaptation of the system of exceptions: A specific exception has been added to 
cover  defence  and  military  matters,  with  these  documents  being  henceforth 
included within the scope of the Regulation8. Another specific exception concerns 
legal opinions: it is not a question of extending the system of exceptions, but of 
incorporating case law in this area9. 

•  Balancing interests: the Regulation states that the protection of certain interests 
must  be  balanced  with  the  public  interest  in  disclosure.  If  there  is  an  overriding 

8 

9 

They had been excluded from the scope of the Council access system by Decision 2000/527 amending 
Decision 93/731. 
Case T-610/97 R, Carlsen and others v. Council, [1998] ECR II-485. 
Case T-44/97, Ghignone and others v. Council, Reports. – public service 2000, p. IA-223 ; II-1023. 

7 

 
 
  
 
                                                 
 
public  interest  in  disclosure,  the  document  will  be  made  accessible  even  if  an 
exception is applicable to the right of access. 

•  Registers  and  direct  access  to  documents:  Each  institution  must  establish  a 
public register of documents that can be consulted on the Internet. In addition, the 
Regulation lays down the objective that the documents should, where possible, be 
made directly accessible in electronic form. 

•  Partial  access:  This  principle  laid  down  in  case  law10  now  forms  part  of  the 
Regulation  (Article  4(6)).  All  parts  of  a  document  not  covered  by  an  exception 
must  be  disclosed,  unless  the  selection  of  passages  to  be  disclosed  represents  a 
disproportionate  administrative  burden  compared  with 
the 
information contained in these passages. 

the  value  of 

•  Shorter time-limits for replies: The one-month time-limit for reply has been cut 
to  15  working  days,  with  the  possibility  of  an  extension  of  15  working  days  in 
duly justified cases. 

2. 

SCOPE OF THE RIGHT OF ACCESS 

The  scope  of  the  Regulation  is  very  broad:  it  covers  all  the  documents  held  by  the 
European  Parliament,  the  Council  and  the  Commission.  However,  there  are  some 
shortcomings, which will be looked at below. 

2.1. 

Institutions covered 

2.1.1.  Provisions in the Treaty and in the Regulation 

The Regulation covers only the three institutions mentioned in Article 255 of the EC 
Treaty  –  the  European  Parliament,  the  Council  and  the  Commission.  There  is  no 
legal  basis  at  the  moment  that  allows  the  right  of  access  to  be  extended  to  the 
documents held by the other European Union institutions and bodies. 

2.1.2. 

Joint declaration by the three institutions 

Aware  of  this  shortcoming,  the  three  institutions  concerned  adopted  a  joint 
declaration11 in which: 

(1) 

(2) 

they  undertake  to  make  the  Regulation  applicable  to  agencies  and  similar 
bodies set up by the Community legislator; 

they  appeal  to  the  other  institutions  and  bodies  to  adopt  similar  rules 
voluntarily. 

10 

11 

Ruling of the Court of First Instance in case T-14/98 Hautala v. Council, [1999] ECR II-2489; Court 
Ruling in case C-353/99 Council v. Hautala, [2001] ECR I-9565; Ruling of Court of First Instance in 
case T-204/99, Mattila v. Council and Commission, [2001] ECR II-2265. 
OJ L 173, 27.6.2001, p. 5. 

8 

 
 
  
 
                                                 
2.1.3.  The de facto situation 

Following  the  survey  conducted  by  the  European  Ombudsman  in  199612,  most 
Community  institutions  and  bodies  had  already  adopted  rules  relating  to  access  to 
their  documents  before  the  adoption  of  Regulation  1049/2001.  These  voluntary 
arrangements often fall short of the rules in the new Regulation, however. 

As  a  result  of  their  joint  declaration  (see  previous  paragraph),  the  institutions 
extended the application of Regulation 1049/2001 to the Agencies. During a review 
of  all  the  regulations  establishing  the  Agencies,  a  provision  was  included  in  the 
founding  instruments  making  Regulation  1049/2001  applicable  to  the  agencies  and 
stating  that  the  latter  should  adopt  implementing  rules.  These  modifications  were 
adopted  on  18  June  2003  (instruments  adopted  by  means  of  the  consultation 
procedure  with  the  EP)  and  on  22  July  2003  (instruments  adopted  by  co-decision). 
They came into force on 1 October 200313. The Agencies must adopt arrangements 
to apply the Regulation by 1 April 2004.14 

The Committee of the Regions and the Economic and Social Committee responded 
to the call by the three institutions. The Committee of the Regions adopted a system 
of  access  to  its  documents  on  11  February  2003  which  is  quite  in  line  with  the 
provisions in Regulation 1049/200115. The Economic and Social Committee adopted 
a similar system on 1 July 200316. 

The  Court  of  Auditors,  the  European  Investment  Bank  and  the  European  Central 
Bank  apply  rules  on  access  to  their  documents  that  are  more  restrictive  than 
Regulation 1049/2001. As judicial bodies, the Court of Justice and the Court of First 
Instance have not adopted rules on access to their documents. 

The  draft  Regulation  on  application  to  the  EC  institutions  and  bodies  of  the 
Convention of Århus17 provides for the extension of the access system established by 
Regulation  1049/2001  to  the  other  institutions  and  bodies  as  regards  access  to 
environmental information. However, these provisions will not apply to the Court of 
Justice and to the Court of First Instance except in cases where they are not acting as 
judicial  bodies.  The  Court  of  Justice  and  the  Court  of  First  Instance  are  therefore 
concerned only to a limited extent by the right of access to documents less than thirty 
years old. Following the expiry of this period, Regulation No 354/83 concerning the 
opening  to  the  public  of  historical  archives  will  be  applied.  This  covers  all 
Community institutions and bodies (see point 3.7). 

12 
13 
14 

15 
16 
17 

See the special report by the Ombudsman to Parliament dated 15.12.1997, OJ C 44 10.2.1998, p. 10. 
Regulations 1641/2003 to 1655/2003, OJ L 245, 29.9.2003. 
The Office for Harmonization in the Internal Market has already adopted implementing arrangements. 
Decisions are being prepared in the other agencies. 
Decision No 64/2003, OJ L 160, 28.6.2003, p. 96. 
Decision No 603/2003, OJ L 205, 14.8.2003, p.19. 
COM(2003) 622 final of 24 October 2003. 

9 

 
 
  
 
                                                 
2.2. 

Beneficiaries 

2.2.1.  Provisions in the Treaty and in the Regulation 

In  accordance  with  Article  255  of  the  EC  Treaty,  the  Regulation  guarantees  free 
access to citizens and residents of the European Union and to all legal persons whose 
registered  offices  are  located  in  a  Member  State.  However,  it  leaves  it  to  the 
institutions to extend the right of access to other categories of persons. 

2.2.2.  Extension of the right of access 

The Council and the Commission have extended right of access to all natural persons 
and  legal  persons  in  their  implementing  rules18.  The  European  Parliament  has 
provided  for  a  similar  extension  of  access  in  its  rules  of  procedure  “where 
possible”19.  While  this  wording  gives  Parliament  discretionary  powers,  it  has  in 
practice responded to applications from citizens from non-EU countries who are not 
resident  in  the  EU.  The  three  institutions  thus  apply  the  regulation  in  a  non-
discriminatory way to citizens of non-EU countries who are not resident in a Member 
State of the Union and to legal persons which are not established on the territory of 
the Union.  

Most of the Agencies have not yet adopted their implementing rules. The Economic 
and  Social  Committee  and  the  Committee  of  the  Regions,  which  voluntarily  apply 
the  principles  in  Regulation  1049/2001,  have  not  provided  for  the  extension  of  the 
right of access to citizens of third countries and to people who are not resident in the 
EU. 

It is worthwhile noting that, since more and more applications are being lodged by e-
mail, it is not always possible to check whether applicants are citizens of the Union 
or whether they are resident or have their registered offices on Community territory. 

Moreover, the Convention of Århus does not allow the right of access to be limited 
to citizens and residents of the European Union. Since the adoption of the Regulation 
on  the  application  of  the  Convention  of  Århus  set  down  in  paragraph  2.1.3, 
Community  institutions,  bodies  and  agencies  should  grant  right  of  access  to  all 
natural  and  legal  persons,  at  least  when  the  application  concerns  environmental 
information. 

2.2.3.  Categories of persons who have availed of their right of access 

The annual reports of Parliament, the Council and the Commission contain statistics 
relating to the professional profiles of the persons who availed of the right of access 
to documents in 2002. 

It emerges from the statistics on those who benefited from the right of access to the 
documents of the institutions that citizens exercising this right mainly belong to very 
specific  groups.  Applications  for  access  to  the  institutions’  documents  generally 

18 

19 

Council Decision of 29.11.2001 (2001/840) amending the rules of procedure; Annex III of the rules of 
procedure,  Article  1;  Commission  Decision  of  5.12.2001  (2001/937);  Annex  II  of  the  rules  of 
procedure, Article 1.2. 
EP Rules of Procedure, Rule 172.1.2. 

10 

 
 
  
 
                                                 
come from the academic world (for research purposes) or professional sectors (such 
as  lobbies  trying  to  influence  decision-making  or  lawyers  wanting  to  find 
information to defend the interests of their clients). 

Since applicants are not required to justify their applications and since only copying 
and  postal  charges  can  be  invoiced  to  them,  the  Regulation  paves  the  way  for 
commercial  applications.  Thus  the  Commission  has  had  to  process  applications  for 
access  to  documents  that  could  have  a  commercial  value  (lists  of  addresses  or  of 
contact  points)  or  documents  that  normally  have  to  be  paid  for,  but  of  which  the 
Commission holds copies. 

It  also  emerges  that  a  large  number  of  applications  for  access  (especially  to 
Commission  documents)  come  from  persons  with  a  specific  interest  in  obtaining 
certain  documents.  The  applications  are  lodged  pursuant  to  Regulation  1049/2001, 
but concern documents that can only be communicated to the persons concerned and 
cannot  be  placed  in  the  public  domain.  Such  applications  concern,  for  instance, 
recruitment procedures, invitations to tender and audits (see also point 3.10).  

It is interesting to note that although they act as vectors of information for the public, 
very few journalists avail of the right to access conferred on them by the Regulation. 
This seems to be because journalists are mainly interested in immediate news. They 
need to obtain  information  on the spot and cannot wait for fifteen working days to 
receive a reply. Applications for access from journalists concern sound recordings of 
European Parliament meetings, documents concerning negotiations at the Council, in 
particular in relation to the common foreign and security policy, the common foreign 
and  defence  policy  and  justice  and  home  affairs,  as  well  as  investigations  into 
specific issues such as the Commission’s real estate policy or the practice of granting 
leave  on  personal  grounds  to  officials.  This  last  type  of  application  clearly  falls 
within  the  domain  of  investigative  journalism.  The  vast  majority  of  applications 
come from a very small number of journalists. 

2.3.  Material scope 

2.3.1.  Definition of “document” 

The Regulation provides a very broad definition of the concept of “document” under 
Article  3(a).  Hence  all  sets  of  information  preserved  in  any  form  whatsoever 
constitute a document within the meaning of the Regulation. 

Bearing  in  mind  the  principle  of  partial  access,  as  it  was  first  defined  in  judicial 
decisions  and  then  incorporated  into  Regulation  1049/2001,  the  right  conferred  by 
this Regulation is in fact a right of access to the content of any existing document. 
The  Court  of  First  Instance  and  the  Court  of  Justice20  lay  down  the  principle  of 
access to the elements of information they contain. If some of these elements are not 
covered by an exception to the right of access, they can be disclosed. 

The wording used in Article 2(3), document drawn up by an institution, could imply 
a certain degree of formalisation of the document. However, the Regulation does not 
contain  any  criterion  or  any  other  indication  relating  to  the  official  nature  of  a 

20 

Rulings in cases T-14/98 Hautala/Council and C-353/99 Council/Hautala, mentioned above. 

11 

 
 
  
 
                                                 
document.  Nevertheless,  it  is  true  that  the  value  of  the  information  contained  in  a 
document and the harm caused by its disclosure may vary in line with elements such 
as  the  degree  of  completion  of  the  document,  the  rather  ephemeral  nature  of  its 
content or the presence of a signature and the administrative level of issue.  

Moreover, the Regulation does not at all oblige the institutions to create documents 
to respond to an application. When the information requested is not available in one 
or  more  existing  documents,  but  involves  research  in  different  sources  and  the 
drafting of specific documents and/or collation of data, the application clearly goes 
beyond the scope of the Regulation. It may be handled as a request for information in 
line  with  the  administrative  rules  of  the  institution  concerned.  Parliament,  the 
Council  and  the  Commission  have  adopted  codes  of  good  administrative  conduct 
comprising  rules  relating  to  the  handling  of  requests  for  information21.  In  practice, 
however,  it  is  not  always  easy  to  distinguish  a  request  for  information  from  an 
application for access to documents (particularly in the case of data bases - see point 
2.3.5). 

2.3.2.  Areas of activity covered by the right of access 

Article 3(a) of the Regulation limits the definition of “document” to matters relating 
to  the  policies,  activities  and  decisions  falling  within  the  institution’s  sphere  of 
responsibility. Moreover, Article 2(3) states that the Regulation applies to all areas of 
activity of the European Union. 

In accordance with Articles 28 and 41 of the Treaty on European Union, the right of 
access  specified  under  Article  255  of  the  EC  Treaty  also  covers  documents  falling 
under Titles V and VI of the Treaty on European Union, in other words the common 
foreign and security policy and cooperation in the area of justice and home affairs. 

The Euratom Treaty does not contain any provisions that are similar to Article 255. 
In  accordance  with  Declaration  No  41  annexed  to  the  Final  Act  of  the  Treaty  of 
Amsterdam, the institutions must use Regulation 1049/2001 as a basis for access to 
documents relating to matters in the Euratom Treaty. However, Article 305(2) of the 
EC Treaty specifies that the provisions in the EC Treaty shall not derogate from the 
Euratom  Treaty.  It  follows  that  Article  255  of  the  EC  Treaty  and  Regulation 
1049/2001 apply if there are no provisions to the contrary in the Euratom Treaty or in 
secondary legislation deriving from it22. On this basis, only documents classified by 
virtue of secrecy systems laid down in Regulation (EAEC) No 3 of 1958, applying 
Article 24 of the Euratom Treaty, are outside the scope of Regulation 1049/2001. 

21 

22 

OJ C 97, 5.4.2000 
OJ C 189, 5.7.2001 
OJ L 267, 20.10.2000. 

EP: 
Council: 
Commission : 
In a preliminary ruling, case 328/85 Deutsche Babcock v. Hauptzollamt Lübeck-Ost, [1987] ECR 5119, 
the Court interpreted the first paragraph of Article 232 EC (which became Art. 305 EC) to mean that the 
EC Treaty and the provisions applied by it should apply to matters falling within the scope of the ECSC 
Treaty unless there were specific provisions in this Treaty or in the Regulations adopted on the basis of 
it. This reasoning applies by analogy to the second paragraph of Article 305. 

12 

 
 
  
 
                                                 
 
 
2.3.3.  Concept of “document held by an institution” 

According to Article 2(3) of the Regulation, the latter “shall apply to all documents 
held by an institution, that is to say documents drawn up or received by it and in its 
possession”.  “Institution”  should  be  understood  as  the  European  Parliament,  the 
Council or the Commission (Article 1 of the Regulation). However, the Regulation 
does  not  specify  under  what  conditions  a  document  is  “held”  by  the  institution  or 
what exactly should be understood by an “institution”. 

This question differs depending on the institution: 

–  The  European  Parliament  comprises  on  the  one  hand  the  members,  some  of 
whom have a mandate (the President, the Vice-Presidents and the Quaestors), the 
organs (the Bureau, the Conferences of Group Presidents, Committee Chairs and 
Presidents  of  Delegations),  the  Political  Groups,  the  Committees  and  the 
Delegations, and on the other hand the Secretariat. 

–  The  Council  consists  of  Member  State  representations  at  ministerial  level.  Its 
work is prepared by the Permanent Representatives Committee and by committees 
and working groups. It is assisted by a General Secretariat. 

–  The  Commission  consists  of  Members  and  of  a  number  of  administrative 

departments. 

Parliament  has  specified  in  its  Rules  of  Procedure  what  must  be  understood  by  a 
“Parliament document”23. This concept covers the documents drafted or received by 
the members holding a mandate, by the bodies, committees and delegations, and by 
the Secretariat. The documents drafted by other members or by political groups are 
Parliament documents when they have been lodged in accordance with the Rules of 
Procedure. Parliament therefore considers that the documents drafted by members or 
by political groups that have not yet been lodged, and the documents by third parties 
held by members do not come within the scope of the Regulation. 

The Council has not defined in its Rules of Procedure what should be understood by 
“Council  document”.  However,  it  has  clarified  the  distinction  between  Council 
documents proper and Member State documents (see point 3.5.2). 

The  Commission  has  not  given  any  definition  of  “Commission  document”  in  its 
implementing rules. Any document held by the President, by a Vice-President or by a 
Member  of  the  Commission,  or  by  a  member  of  a  cabinet,  is  regarded  as  a 
Commission document in the same way as documents held by one of its departments. 
Moreover, in accordance with case law24, the documents drafted by the committees 
which  assist  the  Commission  in  the  performance  of  its  duties  are  regarded  as 
Commission documents25. 

23 
24 

25 

EP rules of procedure, Rule 172(2), 1st and 2nd indents. 
Ruling by the Court of First Instance in case T-188/97, Rothmans v. Commission, [1999] ECR II-2463 
(paragraph 62). 
See Article 7.2 of the Decision of 28.6.1999, OJ L 184, 17.7.1999, p. 25. 

13 

 
 
  
 
                                                 
2.3.4.  Documents in the form of sound or audiovisual recordings 

This type of application mainly concerns Parliament. All of its meetings are recorded 
and the recordings are placed in the archives, initially by the department concerned 
and afterwards in Parliament’s central archives. 

Handling of applications for access to sound recordings raises special problems. First 
the  content  of  the  recording  must  be  analysed  to  determine  whether  it  can  be 
disclosed  pursuant  to  Regulation  1049/2001.  Next,  copies  must  be  made  without 
damaging  the  content  of  the  recording.  The  problems  are  accentuated  when  partial 
access must be granted. 

Applications  for  access  to  audiovisual  recordings  of  plenary  sessions  lead  to  a 
disproportionate  work  load  for  Parliament  departments,  given  the  volume  of  the 
recordings.  Parliament  therefore  considers  that  citizens  should  justify  such 
applications, especially in the case of repetitive applications. 

The Commission has received only a few applications for access to recordings. The 
department concerned followed them up by asking the applicant to listen to them in 
its offices. 

2.3.5.  Documents and systems in electronic format 

The  definition  given  by  the  Regulation  also  covers  documents  kept  exclusively  in 
electronic  form  (Word,  PDF  and  HTML,  for  instance).  The  question  is,  however, 
whether  to  apply  this  definition  to  data  bases.  They  are  not  in  fact  collections  of 
documents,  but  constantly-changing  sets  of  data.  The  financial  and  accounts 
management  systems  are  examples  of  data  bases  that  do  not  correspond  to  the 
traditional definition of “document”. 

Normal practice at the Commission is to regard as a document any report extracted 
from such systems which corresponds to normal use of them. 

2.4. 

Scope in terms of time 

The Regulation, which came into force on 3 December 2001, guarantees the right of 
access  to  all  documents  in  the  possession  of  the  institutions.  The  extension  of  the 
right of access to documents from third parties also applies to documents received by 
the  institutions  before  3  December  2001.  Thus  there  is  a  retroactive  effect  with 
regard  to  third-party  documents.  This  is  partly  offset  by  consultation  of  the  third-
party originator (see point 3.5). 

2.5. 

Conclusions 

•  While  the  system  of  access  does  not  yet  cover  all  Community  institutions 
and  bodies,  it  has  been  extended  beyond  Parliament,  the  Council  and  the 
Commission. 

•  The three institutions grant access rights to citizens from non-EU countries 
and  to  legal  persons  that  are  not  resident  or  do  not  have  their  registered 
offices in the EU, but this practice is not followed by the other institutions, 
bodies and agencies. 

14 

 
 
  
 
•  A  more  precise  definition  of  the  concept  of  “document”  should  be  given, 

based on practical experience. 

•  The  Regulation  has  mainly  benefited  specialists;  therefore  awareness-

raising efforts must be undertaken with respect to the general public. 

15 

 
 
  
 
3. 

 LIMITS TO THE RIGHT OF ACCESS 

This  chapter  contains  an  analysis  of  the  application,  by  each  one  of  the  three 
institutions,  of  exceptions  to  the  right  of  access  arising  from  the  provisions  in 
Articles 4 and 9 of the Regulation. 

3.1. 

General overview of the application of exceptions in 2002 

Annual reports indicate for 2002 the following rates of positive response, following 
processing of confirmatory applications: 

Council 

Commission 

Full Access 

Partial Access 

76.4 % 

62.4 % 

12.2 % 

8.3 % 

Parliament  refused  access  to  9  out  of  528  admissible  applications,  hence  a  rate  of 
positive  response  of  98.3 %.  One  refusal  led  to  a  confirmatory  application, 
following which partial access was granted. 

The breakdown of refusals of initial applications according to the main reason for the 
exception is as follows: 

Exception 

Public security 

International relations 

EP 

Council  Comm. 

22.9 % 

24.5 % 

1.8 %

Protection of personal data 

22.2 %

0.2% 

5.2 %

Court proceedings and legal advice 

55.6 % 11.4 % 

3.7 %

Inspections, investigations, audits 

35.9 %

Protection of the decision-making process 

11.1 %

28.0 % 

8.6 %

Combination of several exceptions  

10.5 % 

38.0 %

These figures are for information only: they are not comparable or exhaustive. The 
Council and Commission figures concern only applications for access to documents 
which are not yet in the public domain and which must, consequently, be the subject 
of a harm test, whereas Parliament’s Registry records all applications for access that 
are  officially  sent  to  it.  Because  of  the  nature  of  Parliament’s  work,  most  of  its 
official documents can be communicated to the public, even when they have not yet 
been  made  accessible.  The  applications  sent  to  the  Council  and  Commission, 
however,  frequently  concern  documents  which,  if  disclosed,  would  harm  interests 
protected by the provisions in the Regulation. Lastly, the figures given above are not 
exhaustive since applications are sometimes processed through other channels, such 
as public information services. 

16 

 
 
  
 
 
 
The frequency of refusals based on each exception indicates the relative importance 
of  the  exception  compared  with  all  the  negative  decisions  by  the  institution  in 
question. The discrepancy in applying exceptions reflects the differences between the 
missions  and  activities  of  the  institutions,  not  a  different  interpretation  of  the 
provisions in the Regulation: 

•  The reason for over half of Parliament’s negative decisions is the need to protect 

legal opinions. 

•  The  restrictions  applied  by  the  Council  mainly  concern  the  protection  of  its 
activities  in  the  areas  of  intergovernmental  cooperation  (external  and  security 
policy,  defence  and  cooperation  on  justice  and  home  affairs)  as  well  as  its 
deliberation process. In relation to the latter, however, considerable partial access 
has frequently been granted. 

•  By far the most significant reason for refusing access invoked by the Commission 
concerns  the  protection  of  its  work  of  inspection,  investigation  and  auditing. 
Given  the  large  number  of  refusals  based  on  several  exceptions,  including  the 
protection of investigations, this reason for an exception is used to justify, at least 
partly, about two-thirds of the negative decisions. 

3.2. 

Absolute exceptions 

The  exceptions  set  down  in  Article  4(1)  of  the  Regulation  are  compulsory  and 
absolute.  Should  disclosure  of  a  document  cause  harm  to  one  of  the  interests 
mentioned,  access  to  this  document  must  be  refused.  The  institution  does  not  have 
discretionary powers and the harm must not be balanced against another interest. 

3.2.1.  Protection of public security 

This reason for an exception, which is found in the laws of every country, appears to 
be less significant in terms of current Community powers. All the same, it is applied 
in  relation  to  the  foreign  and  security  policy  and  cooperation  on  justice  and  home 
affairs. As these policies are essentially implemented by the Council, the latter may 
invoke this exception to a significant extent.  

3.2.2.  Protection of defence and military matters 

This exception was not provided for in the joint Code of Conduct of the Council and 
Commission  as  the  Community  had  no  power  at  the  time  in  the  field  of  defence. 
Integration  into  the  European  Union  of  the  Western  European  Union  has  led  to  a 
European security and defence policy. 

Classified documents relating to this policy were initially excluded from the right of 
access by a Council decision26. Since the entry into force of the Regulation, the right 
of access extends explicitly to this category of documents. However, given the need 
to  protect  this  particularly  sensitive  area  of  activity,  this  new  exception  was 
introduced  by  the  Regulation,  as  well  as  specific  provisions  relating  to  “sensitive” 
documents (see point 3.2). This exception has been used only in very rare cases: the 
Council and the Commission made marginal use of it in 2002 in initial applications 
(less than 1% of cases) and have not used it in confirmatory applications. 

26 

Decision of 14 August 2000 (2000/527) amending Decision 93/731. 

17 

 
 
  
 
                                                 
3.2.3.  Protection of international relations 

“International  relations”  is  understood  as  meaning  the  relations  between  the 
Community  institutions  and  third  countries  or  international  organisations.  This 
exception  covers  quite  a  broad  spectrum:  bilateral  and  multilateral  relations,  and 
political, commercial and development aid relations. In 2002, it was mainly invoked 
by the Council. 

In  the  case  of  the  Council,  the  refusals  generally  concerned  documents  exchanged 
with  third  countries  or  international  organisations  in  the  domain  of  external  and 
security policy or in cooperation on justice and home affairs. 

The  Commission  invoked  this  exception  in  order  to  protect  negotiations  with  third 
countries,  whether  bilateral  or  multilateral,  in  the  context  of  the  World  Trade 
Organisation.  These  decisions  led  to  three  complaints  being  made  to  the 
Ombudsman,  all  lodged  by  NGOs.  One  of  the  complaints  has  been  resolved  –  it 
concerned  a  refusal  to  disclose  internal  Commission  documents  produced  in 
preparation 
the 
Commission’s  arguments whereby disclosure of these documents would undermine 
trade relations with the United States27. 

trans-Atlantic  conferences.  The  Ombudsman  accepted 

for 

Parliament  refused  to  disclose  the  sound  recording  of  a  non-public  meeting  with 
members of parliament from a third country in order not to undermine relations with 
that country. 

3.2.4.  Protection of financial, monetary and economic policy 

This exception aims to protect the essential interests of the Community and Member 
States and is related more to specific Community powers than the first two. Despite 
this,  it  has  been  used  only  marginally  (less  than  1%  of  refusals  in  2002)  by  the 
Council and the Commission. 

3.2.5.  Protection of privacy and the integrity of the individual 

In the exercise of the right of access to documents, account must be taken of the right 
to  protection  of  personal  data.  This  is  stated  in  Article  4(1)(b),  which  contains  an 
explicit reference to Community legislation on the protection of personal data. This 
matter  is  governed  by  Regulation  45/200128.  Where  an  application  for  access 
concerns personal data, the exception in Regulation 1049/2001 and the reference to 
Regulation 45/2001 are applicable. The documents concerned, or at least the parts of 
these  documents  containing  personal  data,  can  only  be  communicated  if  the 
conditions laid down in Regulation 45/2001 are met. 

In  practice,  however,  the  interlinking  of  the  two  Regulations  is  fairly  subtle. 
According  to  the  definition  in  Regulation  45/2001,  all  information  concerning  a 
natural person who is identified or identifiable is personal data29. The question that 

27 
28 

29 

Complaint 1128/2001/IJH 
Regulation No 45/2001 of 18.12.2000 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, OJ L 8 
12.1.2001, p. 1. 
Article 2(a) of Regulation 45/2001. 

18 

 
 
  
 
                                                 
arises then is to what extent the disclosure of the names of people, which constitutes 
handling  of  personal  data,  can  be  carried  out  in  accordance  with  the  rules  on  the 
protection  of  personal  data30.  In  this  respect,  one  might  include,  in  addition  to 
officials  and  staff  members  acting  in  the  context  of  their  work  for  the  institutions, 
people mentioned in a document, those featured on a list of participants at a meeting, 
those taking part in Community programmes or those who have sent correspondence 
to the institutions. 

Only a small number of applications concern personal data. In one case, the question 
of the application of Regulation 45/2001 in the context of an application for access to 
lists of participants of meetings of a committee consisting of experts from Member 
States led to a judicial appeal31. 

The question of disclosing the identity of people had already arisen before the entry 
into  force  of  Regulations  1049/2001  and  45/2001  in  the  case  of  an  application 
concerning  the  disclosure  of  names  of  people  who  had  taken  part  in  a  meeting 
organised  by  the  Commission32.  At  the  time,  the  Commission  had  applied  the 
principles  contained  in  Directive  95/46/EC33  in  order  to  solve  the  question  by 
balancing the interests at stake in each case. With the entry into force of Regulations 
1049/2001  and  45/2001,  the  same  approach  can  be  maintained.  The  decision  on 
whether to grant access to documents containing personal data must be based on the 
balancing of the interests at stake, on the one hand the need to inform the public and, 
on the other, the protection of the persons concerned. This balancing exercise must 
be carried out in each case, with due regards to all the circumstances involved. 

It must be noted that the two Regulations have different scopes. Regulation 45/2001 
covers only matters that come under Community law either fully or partly, under this 
Treaty  and  hence  not  the  common  foreign  and  security  policy  or  justice  and  home 
affairs,  whereas  these  two  areas  are  covered  by  Regulation  1049/2001.  Moreover, 
contrary  to  the  latter,  Regulation  45/2001  applies  to  all the  Community  institutions 
and bodies. 

3.3. 

Special treatment of sensitive documents 

Article  9  of  Regulation  1049/2001  establishes  special  treatment  for  “sensitive” 
documents34: 

–  applications for access to these documents can only be handled by those persons 

who have the right to acquaint themselves with the documents; 

–  the documents shall be recorded in the register or released only with the consent 

of the originator35. 

30 

31 
32 
33 

34 

The first two rulings concerning the interpretation of data protection were issued in 2003, see C-465/00 
ruling of 20/05/2003, Österreichischer Rundfunk i.a. (“Rechnungshof” ruling), [2003] ECR I-4989; C-
101/01, ruling of 06/11/2003, Lindqvist, not yet published. 
Case pending T-170/03, British American Tobacco (Investments) Ltd v. Commission. 
Complaint 713/98/IJH, special report by the Ombudsman and Parliament Resolution A5-423/2001. 
Directive  95/46/EC  of  24.10.1995  on  the  protection  of  individuals  with  regard  to  the  processing  of 
personal data and on the free movement of such data, OJ L 281, 23.11.1995, p. 31. 
Under  Article  9  of  Regulation  1049/2001,  a  document  is  sensitive  when  it  is  classified  at  least  “EU 
CONFIDENTIAL”  in  order  to  protect  the  public  interest  as  defined  in  Article  4  (1)  (a)  of  the  same 
Regulation.  Only  documents  issued  by  the  institutions,  agencies,  Member  States,  third  countries  and 
international organisations can be classified as “sensitive”. 

19 

 
 
  
 
                                                 
The concept of a “sensitive” document coincides only partly with the classification 
system  envisaged  for  documents  under  the  Council  and  Commission’s  security 
rules36. The classified documents regarded as “sensitive” are only those which: 

–  have been classified at least “EU CONFIDENTIAL” 

–  in  order  to  protect  a  public  interest  (public  security,  defence,  international 

relations or financial, monetary or economic policy) 

–  and which originate from a Community institution or agency, a third country or an 

international organisation. 

This definition consequently excludes documents classified “EU RESTRICTED” as 
well  as  those  classified  “EU  CONFIDENTIAL”,  “EU  SECRET”  or  “EU  TOP 
SECRET”, but which do not concern areas of public interest (for instance documents 
relating to investigations by OLAF or containing information concerning private life) 
or which are not issued by a public authority (for instance documents provided by an 
undertaking on a confidential basis). 

While  the  security  rules  in  force  at  the  Commission  and  Council  were  adopted 
without prejudice to instruments implementing the right of access to documents, this 
divergence between “sensitive” documents and “classified” documents is a potential 
source  of  incoherence.  Logic  dictates  that  all  classified  documents  should  be 
submitted to the same rules. 

The security rules of the institutions do not contain additional exceptions, but they do 
define  the  treatment  of  classified  documents.  When  a  classified  document  is  the 
subject of an application for access, the harm caused by disclosure is examined as it 
is  for  all  documents.  If  it  emerges  that  none  of  the  exceptions  apply  at  the  time  of 
examination, the document should then be de-classified and disclosed. Thus there is 
no risk of documents being unavailable because of unfair classification. 

In  practice,  however,  this  divergence  has  not  yet  generated  any  specific  problems. 
The  number  of  classified  documents  held  by  the  Council  and  the  Commission  is 
small,  and  applications  for  access  to  such  documents  are  rare.  Parliament  does  not 
hold  sensitive  documents  and  has  not  yet  adopted  any  security  rules  of  its  own. 
However,  Parliament  and  the  Council  concluded  an  interinstitutional  agreement  on 
20 November 2002 concerning access by Parliament to sensitive Council documents 
and information in the field of the security and defence policy. Parliament adopted a 
decision on 23 0ctober 2003 concerning the implementation of this agreement37. 

3.4. 

Exceptions subjected to a public interest test 

The  exceptions  given  in  Article  4(2)  and  Article  4(3)  of  the  Regulation  are  also 
compulsory,  but  they  must  be  balanced  against  interest  of  the  public  in  becoming 
acquainted  with  the  content  of  the  documents  concerned.  When  this  interest  is 
overriding, the documents shall be disclosed despite the applicability of an exception. 

35 
36 

37 

See points 3.4.3. and 5.2. 
Council Decision 2001/264, OJ L 101, 11.4.2001, p. 1. 
Commission Decision 2001/844, OJ L 317, 3.12.2001, p. 1. 
The agreement and the implementing decision are to be found in Annex VII of Parliament’s Rules of 
Procedure. 

20 

 
 
  
 
                                                                                                                                                         
 
3.4.1.  Protection of commercial interests 

This exception protects commercial secrets and the intellectual property of a natural 
or legal person, as well as its commercial interests in a wider sense, including aspects 
relating  to  commercial  reputation.  It  is  invoked  almost  exclusively  by  the 
Commission. 

In  most  cases,  the  reason  for  a  refusal  arose  from  the  need  to  protect  the  data 
communicated by undertakings in the context of investigations relating to observance 
of the rules of competition and with a view to obtaining works or supplies contracts 
following  an  invitation  to  tender  launched  by  the  Commission.  Applications  for 
access generally came from rival undertakings. 

In a number of cases, refusals concerned not so much the information communicated 
by  the  undertaking,  but  data  which,  if  disclosed,  would  have  undermined  its 
reputation,  which  could  have  resulted  in  loss  of  market  share.  In  this  case,  the  aim 
was to protect the undertaking’s commercial interests. 

Refusal to disclose documents to protect commercial interests led to several appeals 
before  the  Court  of  First  Instance.  In  each  case,  however,  the  protection  of 
commercial interests was invoked in combination with other reasons for refusal38. 

3.4.2.  Protection of court proceedings and of legal advice 

This  reason  for  refusal,  invoked  by  the  three  institutions,  covers  two  examples: 
protection of the conduct of proceedings pending before a court and protection of the 
independence of legal opinions. 

The  scope  of  the  concept  of  “protection  of  court  proceedings”  is  limited:  it  covers 
only  documents  drafted  for  the  sole  purpose  of  specific  judicial  proceedings 
(pleadings or documents lodged, internal documents concerning the investigation of 
a case in progress, communications with the institution’s legal service or with a law 
firm).  This  reason  for  an  exception  does  not  permit  refusal  of  access  to 
administrative documents linked to the subject of the proceedings39. 

Protection  of  “legal  advice”  was  not  expressly  included  in  the  rules  on  access  to 
documents  prior  to  Regulation  1049/2001.  However,  judgments  had  already 
recognised on several occasions the need to give such documents special protection, 
considering  that  the  possibility  of  the  Community  institutions  seeking  independent 
legal  opinions  should  be  preserved40  41  42.  Inclusion  of  a  specific  exception  in  the 
Regulation simply confirms these judgments. 

38 

39 

40 

41 

42 

Cases  T-68/02  and  T-159/02,  Masdar  (UK)  Ltd  v.  Commission,  T-237/02,  Technische  Glaswerke 
Ilmenau  GmbH  v.  Commission  and  T-2/03,  Verein  für  Konsumenteninformation  v.  Commission,  all 
pending. 
Ruling  of  Court  of  First  Instance  in  case  T-92/98,  Interporc  Im-und  Export  GmbH  v.  Commission, 
Comp. [1999] ECR II-3521. 
Order by the President of the Court of First Instance of 3 March 1998 in case T-610/97R, Carlsen i.a. v. 
Council, mentioned above (see in particular paragraph 46). 
Ruling of the Court of First Instance of 8 November 2000 in case T-44/97, Ghignone i.a. v. Council, 
mentioned above. 
Order of the Court of 23 October 2002, case C-445/00, Austria v. Council, not yet published. 

21 

 
 
  
 
                                                 
The  interpretation  and  scope  of  this  exception  aimed  at  protecting  legal  opinions 
have, however, led to differences of views, particularly between the institutions and 
the  European  Ombudsman.  The  latter  considers  that  it  would  be  advisable  to 
distinguish  between  opinions  issued  in  the  context  of  legislative  activity,  which 
should be made public once the decision-making process is complete, and opinions 
referring to judicial proceedings. The exception under Article 4(2) of the Regulation 
would apply only to the second category43. 

Several  Members  of  the  European  Parliament  agree  with  the  Ombudsman  and 
consider that Parliament’s practice is itself too restrictive. One Member has referred 
this matter to the Court of First Instance44. 

In a specific case, the Ombudsman considered that it was reasonable to refuse access 
to  a  legal  opinion  that  does  not  form  part  of  the  legislative  process  or  of  judicial 
proceedings, if there is no higher public interest to justify disclosure45. 

3.4.3.  Protection of investigations 

This  is  the  reason  most  often  invoked  by  the  Commission  (35.9%  of  refusals  in 
2002).  The  importance  of  this  reason  can  be  explained  by  the  growing  number  of 
applications for access to documents relating to infringement procedures and to files 
concerning  competition  policy.  In  addition,  there  is  the  interest  aroused  by  the 
investigations of the European Anti-Fraud Office (OLAF), and the audits concerning 
projects and programmes financed by Community funds. 

Only  the  accessibility  of  documents  relating  to  infringement  proceedings  led  to 
Court  rulings  issued  on  the  basis  of  Decision  94/90  (the  Code  of  Conduct).  The 
Commission’s  practice  is  in  line  with  these  rulings,  which  are  still  quite  pertinent 
given  the  system  introduced  by  Regulation  1049/2001.  The  Court  of  First  Instance 
has,  on  several  occasions,  considered  that  the  objective  of  reaching  an  amicable 
settlement between the Commission and the Member State concerned before a Court 
ruling  was  issued  justified  refusal  of  access  to  documents  relating  to  infringement 
proceedings, the aim being to protect the investigation46. In a complaint against the 
refusal  to  disclose  exchanges  of  correspondence  with  a  Member  State  in 
infringement  proceedings  that  were  not  finished,  the  Ombudsman  also  considered 
that the refusal was justified on the basis of the exception in Article 4(2), 3rd indent, 
of the Regulation47. 

Anxious to strike a fair balance between the need to protect investigations relating to 
alleged  infringements  and  the  public  interest  in  having  greater  transparency  in  this 
domain, the Commission has laid down specific guidelines for handling applications 
for access to documents relating to infringement proceedings48. 

43 

44 
45 
46 

47 
48 

See the special report by the Ombudsman to the European Parliament following complaint 1542/2000 
(PB)SM  dated  12  December  2002  and  the  draft  recommendation  of  27  March  2003  concerning 
complaint 1015/2002/(PB)IJH. 
Case pending T-84/03, Turco v. Council. 
Complaint 412/2003/GG. 
For instance the rulings in cases T-105/95, WWF UK v. Commission, [1997] ECR II-313 (paragraphs 62 
et seq.) and T-191/99, Petrie v. Commission, [2001] ECR II-3677 (paragraphs 67 et seq.). 
Complaint 1437/2002/IJH. 
Commission Working Paper of 28 February 2003, reference SEC(2003) 260/3. 

22 

 
 
  
 
                                                 
The  Court’s  reasoning  in  the  above-mentioned  cases  applies  mutatis  mutandis  to 
proceedings similar to infringement proceedings such as the examination of state aids 
and the notification of technical rules and standards49. 

A  refusal  to  disclose  audit  reports  in  order  to  protect  an  investigation  concerning 
possible  irregularities  has  led  to  an  appeal  before  the  Court  of  First  Instance50,  as 
well as to several complaints to the Ombudsman. 

3.4.4.  Protection of the decision-making process 

The  exception  under  Article  4(3)  of  Regulation  1049/2001  enables  the  institutions, 
under  certain  conditions,  to  protect  internal  deliberations  held  prior  to  decision-
making. This exception, the objective of which is to ensure that decisions taken are 
shielded from undue external pressure, is relevant for the three institutions. 

The conditions for applying this exception are very strict, however. Unlike the other 
exceptions that apply if the disclosure of a document should undermine the protected 
interest,  in  this  case  disclosure  must  “seriously  undermine”  the  decision-making 
procedure.  The  distinction  between  the  concept  of  “undermining”  and  “seriously 
undermining”  is  very  theoretical  and  difficult  to  determine  in  practice.  What  will 
determine whether or not to disclose a particular document will be the balancing of 
this with the public interest rather than an examination of the seriousness of the harm 
caused. 

The existence of serious harm is particularly difficult to demonstrate when, pursuant 
to the second paragraph of Article 4(3), refusal concerns a decision that has already 
been taken. The decision-making process of the institution relating to this particular 
issue has been completed, and the disclosure of a preparatory document drawn up for 
internal  deliberations  concerning  this  matter  should  seriously  undermine  the 
institution’s capacity to take future decisions. Analysing the harm could thus become 
much too abstract an exercise. 

Moreover, the Regulation concerns only the internal decision-making process of each 
institution and ignores the interinstitutional nature of decision-making at Community 
level.  Once  the  Commission  has  forwarded  its  proposal  to  Parliament  and  the 
Council, its own decision-making process is complete. However, this constitutes just 
one stage in the Community decision-making process. The disclosure of Commission 
documents  relating  to  a  matter  on  which  the  final  decision  has  not  yet  been  taken 
could  undermine  the  decision-making  process  of  the  other  institutions,  for  instance 
the process of conciliation. 

In  practice,  the  protection  of  the  decision-making  process  concerns  almost 
exclusively  the  Council  and  the  Commission.  The  debates  at  Parliament  in 
committees  and  in  the  plenary  session  are  public  and  the  documents  drafted  by 
political groups that are not lodged are outside the scope of the Regulation. 

49 

50 

In  case  T-237/02,  Technische  Glaswerke  Ilmenau  GmbH  v.  Commission,  the  plaintiff  disputes  the 
admissibility of these judgments as far as State aid is concerned. 
Cases pending T-68/02 and T-159/02, Masdar (UK) Ltd v. Commission. 

23 

 
 
  
 
                                                 
3.4.5.  Balancing the public interest in disclosure of a document 

Balancing the public interest and the interest to be protected in the case of disclosure 
of a document is one of the most difficult exercises in the processing of applications 
for access to documents.  

This “exception to the exceptions” applies when two conditions are met: 

–  there is a public interest in disclosing the information contained in the document 

–  this interest must be overriding compared with the interest to be protected. 

The public interest is a quite vague legal concept. It is difficult to lay down criteria to 
identify  the  existence  of  a  public  or  general  interest  to  disclose  information.  It  is 
clear, however, that the interest of applicants, insofar as the latter have justified their 
applications at their own initiative, is not in itself a public interest. On the other hand, 
it  is  possible  to  maintain  that  there  is  always  a  public  interest  in  disclosing 
information held by the authorities. 

The  question  of  whether  or  not  a  public  interest  in  disclosing  a  specific  document 
exists  is,  therefore,  quite  academic.  However,  the  real  problem  is  to  determine 
whether the interest in disclosure is such that it justifies disregarding the harm that 
would  thus  be  caused  to  interests  protected  by  the  Regulation,  such  as  the 
commercial interests of an undertaking. 

There are no rules for determining a priori that the public interest in the disclosure of 
a  document  overrides  the  harm  that  disclosure  would  cause  to  one  of  the  public  or 
private interests protected by the Regulation. When it comes to balancing interests at 
a specific time, such rules cannot be laid down. The harm must be assessed in each 
specific  case,  and  it  must  be  decided  whether  the  interest  in  making  public  the 
information it contains takes precedence over this. Decisions taken in specific cases 
could,  however,  be  used  as  a  precedent  and  thus  permit  the  development  of  an 
administrative practice.  

In  every  application  examined  to  date,  the  institutions  concluded  that  the  public 
interest  of  disclosing  the  documents  requested  was  not  overriding  and  did  not 
therefore justify going beyond the exception.  

In  most  cases  in  which  the  applicant  himself  invokes  the  greater  public  interest  of 
disclosure, which is frequent in confirmatory applications, the arguments put forward 
indicate a personal interest by the applicant. The interest of a private individual can 
never justify disregarding an exception, as any document made accessible following 
an  application  enters,  as  a  result  of  this,  into  the  public  domain  and  becomes 
accessible to all. 

Several  applicants  considered,  notably  on  the  basis  of  Article  1  of  the  Treaty  on 
European  Union,  that  the  general  principle  of  transparency  was  in  itself  a  greater 
public  interest  justifying  the  disclosure  of  a  document.  Lastly,  researchers  have 
sometimes based their arguments on the scientific nature of their application in order 
to  prove  the  existence  of  a  greater  public  interest  in  disclosing  the  desired 
documents. These arguments cannot be accepted as they would render the exceptions 
in the Regulation devoid of all substance. The public interest in disclosure is in fact 
an “exception to an exception” which must be applied restrictively. In one particular 

24 

 
 
  
 
case,  the  Ombudsman  considered  that  the  fact  that  a  document  was  requested  for 
scientific  reasons  did  indeed  constitute  a  public  interest  for  disclosure,  but  that  the 
interest was not overriding51. 

Even  when  the  applicant  does  not  refer  to  a  greater  public  interest,  the  institution 
examines  the  case  as  a  matter  of  course  to  see  whether  there  is  such  an  interest  to 
justify disclosure. This balancing can only be conducted on the basis of the elements 
available to the institution. Any argument put forward by the applicant helps to refine 
the balancing act. Thus even if the burden of proof is not for the applicant alone, it is 
clear  that  in  practice  he/she  must  provide  evidence  to  establish  the  existence  of  a 
greater  public  interest  in  disclosing  a  document  despite  the  applicability  of  an 
exception. The Ombudsman has taken this line52. 

3.5. 

Access to third-party documents 

3.5.1.  General system 

Article  4(4)  of  Regulation  1049/2001  states  that  in  the  case  of  an  application 
concerning documents originating from third parties, the institution shall consult the 
third-party  originator  to  determine  whether  an  exception  in  paragraph  1  or  2  is 
applicable, unless it is clear that the document shall or shall not be disclosed. In the 
event that a third party opposes the disclosure of the document, and if the institution 
considers  that  no  exception  is  applicable,  the  Council  and  the  Commission  state  in 
their  implementing  rules  that  the  third  party  must  be  informed  of  the  intention  to 
make the document accessible, and that he/she has ten working days to oppose this. 
In any case, the decision is made by the institution. In practice, reasons are generally 
given for refusals, and account is taken of the third party’s opposition. It is very rare 
that  the  institutions  would  notify  an  originator  of  their  intention  to  divulge  a 
document against his/her will, and even in the cases that have arisen, disclosure did 
not give rise to litigation. 

3.5.2.  Documents originating from Member States 

A  special  system  is  provided  under  Article  4(5)  for  applications  concerning 
documents  originating  from  a  Member  State.  Pursuant  to  this  provision,  which 
incorporates  Declaration  No  35  annexed  to  the  Final  Act  of  the  Treaty  of 
Amsterdam,  a  Member  State  may  ask  an  institution  not  to  disclose  a  document 
originating from that Member State without prior agreement.  

Applications  for  access  to  documents  originating  from  Member  States  mainly 
concern  the  Commission.  The  Council  has  restrictively  interpreted  the  concept  of 
“documents  originating  from  a  Member  State”  to  take  account  of  the  fact  that 
Member State representatives take part in its work. According to this interpretation, 
representatives  of  Member  States’  governments  or  their  delegates  are  not,  in  the 
context  of  their  involvement  in  the  work  of  the  Council  and  of  its  committees  and 
groups,  persons  or  entities  outside  the  institution;  rather,  they  form  part  of  it. 
However, documents drawn up by a Member State expressing that Member State’s 

51 
52 

Complaint 412/2003/GG, quoted above. 
ibid 

25 

 
 
  
 
                                                 
positions as such and not as a member of the Council in the course of its work are 
regarded as documents originating from a third party. 

The wording of Article 4(5) does not make it clear to what extent the institutions are 
required to respect the negative opinion of a Member State as regards the disclosure 
of one of its documents. However, the absence of any obligation would deprive this 
measure  of  any  useful  effect  since  in  this  case,  the  Member  States’  position  would 
not  be  different  from  that  of  other  third  parties.  The  Member  States  are  in  a 
privileged position compared with other third parties because the Regulation does not 
affect national laws on access to documents. It is not for the institutions, in fact, to 
take a decision contrary to a decision adopted by a Member State pursuant to its own 
national laws.  

This interpretation was confirmed by the Court of First Instance in a ruling issued on 
17  September  2003.  The  Court  in  fact  rejected  the  appeal,  considering  that  the 
Commission  had  rightly  refused  to  grant  access  to  documents  originating  from  the 
Italian  authorities,  which  had  opposed  the  disclosure  of  these  documents53.  This 
matter is also the subject of five other appeals and of a complaint to the Ombudsman, 
which has been completed54. 

Only  in  a  small  number  of  cases  was  access  refused  following  opposition  by  the 
Member State from which the document originated: this clause was applied only by 
the  Commission,  and  it  was  responsible  for  only  2.1%  of  the  negative  decisions  in 
2002.  Generally  speaking,  the  national  authorities  opposed  the  disclosure  of 
documents to which they had already refused access on the basis of their own laws or 
which they would not have disclosed if the application had been referred to them. 

Despite the low number of refusals of access at the request of a Member State, the 
latter resulted in a relatively large number of appeals. Of the eleven appeals lodged 
before the Court of First Instance against negative decisions by the Commission, six 
concerned the application of this exception (see above). 

3.5.3. 

Sensitive documents 

By  virtue  of  the  special  treatment  accorded  by  Article  9  of  the  Regulation  to 
“sensitive” documents (see point 3.3), the originating authority of such a document 
may  oppose  disclosure  and  entry  on  the  register  (Art.  9(3)).  The  institutions  are 
required  to  respect  the  opposition  of  a  third-party  originator.  This  is,  therefore, 
another exception to the general arrangement, under which the institutions have the 
last say. Applications for access to sensitive documents originating from third parties 
are very rare. 

3.6. 

Partial disclosure of documents 

The institutions are increasingly granting partial access to their documents (12.16% 
for the Council, 8.3% for the Commission and two cases for Parliament in 2002). In 
the  applications  handled  by  Parliament  and  in  most  of  the  cases  handled  by  the 

53 
54 

Ruling of Court of First Instance in case T-76/02 Messina v, Commission, mentioned above. 
Cases  T-168/02,  Internationaler  Tierschutz-Fonds  (IFAW)  GmbH  v.  Commission,  T-139/03  and 
T-151/03,  Nuova  Agricast  srl  v  Commission  and  T-287/03  S.I.M.S.A.  srl  v  Commission;  T-187/03, 
Scippacercola v. Commission; complaint to the Ombudsman 1753/2002/GG. 

26 

 
 
  
 
                                                 
Commission,  information  was  concealed  in  order  to  protect  the  integrity  of  an 
individual or commercial interests. In the case of the Council, the aim was in general 
to  conceal  information  that  would  permit  identification  of  delegations  which  had 
expressed  an  opinion  during  the  examination  of  legislative  proposals  while  the 
discussions on the matter were still in progress55. 

The  practice  of  partial  access  ensures  greater  transparency  for  the  public  while 
protecting the interests that would be harmed by full disclosure. However it can lead 
to a considerable burden of work. The courts have thus acknowledged that, in order 
to uphold the interest of good administration, the institutions can apply the principle 
of  proportionality  in  specific  cases  in  which  the  volume  of  the  document  or  of  the 
passages to be censored would result in an inappropriate administrative burden, and 
balance  the  interest  of  access  by  the  public  to  these  fragmented  parts  against  the 
resulting workload56. 

3.7. 

Accessibility of documents over thirty years old 

Pursuant to Regulation No 354/83 of 1 February 198357, as amended by Regulation 
No 1700/2003 of 22 September 200358, concerning the opening to the public of the 
EEC and EAEC historical archives, all the documents of the Community institutions 
become accessible to the public after a period of thirty years. This rule has a limited 
number of exceptions: only documents containing either personal data or information 
that could undermine commercial interests, as well as sensitive documents which are 
still classified after thirty years, are not automatically made public. 

The Regulation concerning the opening to the public of historical archives is echoed 
in Article 4(7) of Regulation 1049/2001, which states that the exceptions may apply 
for a period of thirty years. After this period, only the exceptions relating to privacy 
and  commercial  interests  and  the  special  arrangements  for  sensitive  documents  can 
still be applied if necessary. The text of Regulation 354/83 has been brought into line 
with  the  provisions  in  Regulation  1049/2001  as  provided  for  in  Article  18  of  the 
latter. 

The only difference between the system of access to documents less than thirty years 
old  and  the  system  of  access  to  the  historical  archives  concerns  the  institutions 
covered:  the  Regulation  on  “historical  archives”  applies  to  all  the  institutions  and 
bodies of the European Union and to the Community agencies. 

3.8. 

Access to Community documents on the basis of a national law 

Regulation 1049/2001 does not have the purpose or effect of amending national laws 
on  access  to  documents.  However,  to  ensure  some  coherence  in  the  handling  of 
applications for access to Community documents by the national authorities, Article 

55 

56 

57 
58 

The  names  of  delegations  were  not  concealed,  however,  in  the  case  of  reservations  pending 
parliamentary or linguistic review. 
Ruling by the Court of First Instance in case T-14/98 Hautala v. Council, mentioned above (paragraph 
86),  confirmed  by  the  ruling  of  the  Court  in  case  C-353/99  P  Conseil  v.  Hautala,  mentioned  above 
(paragraph  30);  ruling  of  the  Court  of  First  Instance  in  case  T-204/99  Mattila  v.  Council  and 
Commission,  mentioned  above  (paragraphs  68  and  69)  and  case  T-211/00  Kuijer  v.  Council,  [2002] 
ECR II-485 (paragraph 57). 
OJ L 43, 15.2.1983, p. 1. 
OJ L 243, 27.9.2003, p. 1. 

27 

 
 
  
 
                                                 
5  of  the  Regulation  recommends  that  the  Member  State  which  receives  an 
application  for  access  to  a  document  originating  from  an  institution  should  consult 
the  originating  institution,  unless  it  is  clear  that  the  document  must  or  must  not  be 
disclosed. The response by the Member State to the application for access should not 
jeopardise the attainment of the objectives of Regulation 1049/2001. 

This  provision  is  a  corollary  to  Article  4(5)  of  the  Regulation  which  allows  a 
Member State to oppose the disclosure of its documents by the institutions. Since the 
Regulation  does  not  affect  national  laws,  the  parallelism  is  not  total,  however.  An 
institution  to  which  an  application  for  access  to  a  document  originating  from  a 
Member  State  has  been  referred  is  required  not  to  disclose  the  document  if  the 
national authorities from which it originates oppose this. A Member State to which 
an  application  for  access  to  a  document  originating  from  an  institution  has  been 
referred applies its own legislation. Article 5 of the Regulation simply enshrines the 
principle  of  loyalty  laid  down  in  Article  10  of  the  EC  Treaty.  It  follows  that  the 
Member State is required to consult the originating institution in case of doubt and to 
take a decision which does not compromise the achievement of the objectives of the 
Regulation. In practice, the Member State will endeavour to reconcile the provisions 
in the Regulation with its own legislation. 

Since the entry into force of Regulation 1049/2001, relatively few consultations have 
been  started  by  Member  States.  Some  Member  States  have  a  greater  tendency  to 
consult the institutions, for instance when the  application concerns  an infringement 
procedure. Others forwarded letters of formal notice and reasoned opinions without 
any  prior  consultation  of  the  Commission.  Information  relating  to  Member  States’ 
practices in this domain is very fragmented, however. It is not therefore possible to 
assess the extent of the disclosure by national authorities on the basis of their laws of 
documents originating from the Community institutions. 

3.9. 

Cases not covered by the Regulation 

The  exceptions  provided  for  in  Article  4  of  Regulation  1049/2001  have,  to  date, 
sufficiently justified refusal of access in the case of documents which, if disclosed, 
would  be  harmful.  Unlike  certain  national  laws,  the  Regulation  does  not  contain  a 
detailed  and  precise  list  of  the  exceptions,  but  does  indicate  the  public  and  private 
interests  to  be  protected.  The  departments  entrusted  with  the  application  of  the 
Regulation  must  therefore  ensure  that  the  disclosure  of  a  document  does  not  harm 
one  of  these  interests.  They  have  not  had  to  deal  with  a  case  in  which  disclosure 
would harm an interest other than those mentioned under Article 4 of the Regulation. 

The very restrictive nature of Article 4(3) must be underlined, however. The wording 
does not protect certain preparatory documents relating to a decision already adopted 
by  an  institution  and  containing  information,  the  disclosure  of  which  would  be 
contrary  to  the  interests  of  that  institution.  Moreover,  this  Article  only  protects  the 
decision-making  process  within  the  institution  itself  and  not  the  interinstitutional 
process resulting in the final adoption of a decision. 

Furthermore, it would perhaps be judicious, in the interests of clarity, and in order to 
protect  certain  well-defined  interests,  to  provide  specific  exceptions  covering  these 
cases rather than to invoke a general exception based on a broad interpretation. 

28 

 
 
  
 
Lastly,  the  Convention  of  Århus  contains  a  special  exception  for  which  there  is  no 
equivalent in the Regulation. By virtue of this exception, an application for access to 
environmental  information  may  be  refused  if  disclosure  of  it  would  harm  the 
environmental  site  to  which  the  information  refers.  The  text  quotes  the  example  of 
places of reproduction of rare species59. 

3.10.  Compatibility  of  specific  rules  of  access  with  the  general  system  in  the 

Regulation 

Regulation  1049/2001  establishes  a  general  system  of  access  by  the  public  to 
Commission documents. The legislator has endeavoured to prevent the application of 
specific  rules  governing  access  to  documents,  information  or  files  under  special 
procedures from resulting in restrictions to access that are contrary to the Regulation. 
To this end the Regulation states that the Commission shall examine the conformity 
of these specific rules with the general system of access (Article 18(2)). 

An  analysis  of  these  clauses  conducted  by  the  Commission  shows  that  they  can  be 
divided into two categories: 

(1) 

(2) 

certain rules should be regarded as special cases of application of one of the 
general exceptions laid down in Article 4 of the Regulation; 

other  clauses  grant  one  party  involved  or  with  an  interest  in  a  specific 
procedure  a  right  of  access  to  documents  which,  if  disclosed  to  the  public, 
would harm one of the interests protected by the Regulation. 

In  both  instances,  the  Commission  has  not  identified  any  case  in  which  there  is 
incompatibility with the provisions in the Regulation. Practice to date has confirmed 
this conclusion. The list of clauses analysed by the Commission was communicated 
to Parliament and the Council at the meeting of the Interinstitutional Committee held 
in Strasbourg on 23 September 2003. 

The  question  arises,  however,  concerning  extending  or  codifying  rules  granting 
special access that goes beyond the public right of access. It has been noted, in fact, 
that the Regulation has sometimes been invoked to exercise a special right of access 
in the absence of any specific provisions. 

3.11.  Conclusions 

The  following  conclusions  can  be  drawn  in  the  light  of  the  experience  acquired  to 
date: 

•  More than two out of every three applications receive a positive response. 

•  Only some of the exceptions in the Regulation were invoked frequently. The 
disparity in the statistical data reflects the differences between the missions 
and roles of the three institutions. 

•  The exceptions generally provide adequate protection of interests. 

•  While  the  exception  concerning  the  protection  of  the  decision-making 

59 

Article 4(4)(h) of the Convention. 

29 

 
 
  
 
                                                 
process protects the internal decision-making process of each institution, it 
does not take account of the interinstitutional nature of decision-making. 

•  The application of the Regulation concerning the protection of personal data 
has  proven  delicate  because  of  interlinking  problems  between  Regulation 
1049/2001 and Regulation 45/2001. 

•  The  concept  of  “sensitive  document”  in  Regulation  1049/2001  does  not 

coincide with the classification system laid down in the security rules. 

•  The  concept  of  a  greater  public  interest  in  disclosure  cannot  be  defined  a 

priori but must be the subject of evaluation in each case. 

•  While  refusals  because  of  the  opposition  of  the  originating  Member  State 
are  few,  it  has  become  clear,  in  the  Commission’s  experience,  that  this 
exception is very much disputed. 

•  Member States do not systematically consult the institutions. 

4. 

PRACTICAL APPLICATION OF THE RIGHT OF ACCESS 

This  chapter  examines  the  procedural  aspects  of  the  application  of  the  Regulation, 
the work load it generates, possibilities of appeal and cooperation between the three 
institutions concerned. 

4.1. 

Admissibility of applications 

The  only  condition  laid  down  in  the  Regulation  regarding  admissibility  of  an 
application is that it should be made in writing in one of the official languages of the 
Community.  The  three  institutions  have  spelled  out  the  application  procedures  in 
their implementing measures. Applications may be sent by post, by fax or by e-mail. 
The  three  institutions  have  posted  an  e-mail  address  on  the  Internet  to  which  all 
applications  may  be  sent.  Applicants  who  so  wish  may  use  the  electronic  form 
available on the Parliament and Commission web sites. Acknowledgement of receipt 
is sent to the applicant, except where the reply can be sent by return mail. 

More  and  more  applications  are  being  sent  by  e-mail.  In  a  number  of  cases,  the 
applicant cannot be identified from the electronic address. The Regulation states that 
applicants  need  not  justify  their  applications.  However,  there  is  nothing  to  prevent 
the  institutions  from  requiring  a  minimum  of  useful  information  to  process  the 
application,  such  as  the  name  and  address  for  sending  out  paper  documents  and, 
where appropriate, for invoicing, as well as the professional profile of the applicant 
for  statistical  purposes  in  order  to  assess  the  practical  effects  of  the  Regulation. 
General  use  of  an  electronic  form,  such  as  the  one  used  by  Parliament’s  Registry, 
should allow minimum information to be obtained from applications submitted by e-
mail. 

4.2. 

Time-limits for reply 

In some cases, the institutions have had to extend the 15-working days time-limit for 
reply because the application could not be processed within that time. This applied in 
particular  to  the  Commission,  which  receives  a  number  of  large  and  complex 
applications. Given the obligation to examine each application individually, the time-

30 

 
 
  
 
limit of 15 working days is generally insufficient to process the applications. When 
the time-limit is extended, it is generally for one of the following reasons: 

–  need to look for and locate documents (especially in the case of old documents); 

–  identification  of  documents  requested  when  the  applications  are  long  and  rather 

vague; 

–  limited  availability  of  people  with  the  necessary  expertise  to  determine  the 

damage that would be caused by disclosing the documents requested; 

–  need to consult third-party originators; 

–  translation of the applications and of the replies. 

4.3. 

Complex, very long or unfair applications – proportionality 

Some applications for access sent to the Commission and Parliament are vague, for 
instance  when  they  concern  “any  document  relating”  to  an  area  of  activity  or  a 
specific subject. A large number of applications (mainly sent to the Commission) are 
also  very  long,  for  instance  those  concerning  entire  files  (relating  to  State  aids  or 
competition,  for  example).  It  is  difficult  to  process  such  applications  since  the 
Regulation  provides  only  for  the  possibility  of  extending  the  deadline  for  reply, 
asking  the  applicant  to  make  a  more  precise  request  if  the  application  is  too  vague 
and does not permit the identification of the documents concerned, or reaching a fair 
solution when the application concerns a  very long document or a large number of 
documents (see Article 6(2) and 6(3) of the Regulation). A fair solution may involve 
limiting the application in time, for instance. It is also possible to ask the applicant to 
come  and  consult  the  documents  on  the  spot.  However,  these  solutions  are  not 
always  sufficient.  In  the  case  of  disproportionate  applications,  the  Commission  has 
already  invoked  the  principle  of  proportionality  by  replying  to  the  applicant  that 
processing  of  the  application  would  involve  an  administrative  burden  that  would 
undermine  the  principle  of  good  administrative  practices  (by  analogy  with  partial 
access –  see point  3.6). Two refusals by the Commission  based on the principle of 
proportionality  were  referred  to  the  Court  of  First  Instance.  These  cases  are  still 
pending60.  

Parliament  is  the  only  institution  that  systematically  keeps  sound  and  audiovisual 
recordings. They mainly concern meetings of its committees and plenary sessions. It 
is receiving a growing number of applications for access to these recordings, which 
are  often  very  long.  In  the  cases  in  which  the  recordings  can  only  be  made  partly 
accessible, erasing the parts covered by an exception to the right of access generates 
a very significant workload. 

Contrary  to  some  national  laws,  the  Regulation  does  not  contain  any  clauses  on 
unfair,  repetitive  or  clearly  unreasonable  applications.  Such  applications  result  in 
disproportionate  work  to  the  detriment  of  applications  from  citizens  genuinely 
looking  for  information.  The  only  defence  the  institutions  have  is  to  invoke  the 
principle  of  proportionality  (see  above)  or  to  consult  with  the  applicant  in  order  to 
reach a fair solution, as provided for in Article 6(3) of the Regulation. 

60 

Cases  T-2/03  Verein  für  Konsumenteninformation  v.  Commission  and  T-170/03,  British  American 
Tobacco (Investments) Ltd v. Commission, mentioned above. 

31 

 
 
  
 
                                                 
Some  systematic  and  repetitive  applications  can  constitute  unfair  use  of  the 
Regulation. For instance applications that are obviously being used on a regular basis 
to  fuel  campaigns  that  are  systematically  hostile  to  Community  policies.  These 
professional  applicants,  who  also  make  use  of  the  remedies  available  to  them,  are 
putting the institutions on the defensive by confronting them with demands which the 
latter cannot satisfy and which are obviously contrary to the spirit of the Regulation. 

4.4.  Methods of access – invoicing 

The  Regulation  states  that  applicants  shall  have  access  to  documents  either  by 
consulting them on the spot or by receiving a copy (paper or electronic copy). 

The  vast  majority  of  documents  are  sent  in  electronic  format,  with  paper  copies  of 
the  older  documents  generally  being  sent  by  post.  In  some  cases  where  the 
documents  are  very  long,  the  applicant  is  asked  to  come  and  consult  them  on  the 
spot. 

In their arrangements for applying the Regulation, the institutions have provided for 
a  system  of  optional  invoicing  for  the  supply  of  documents  of  over  20  pages. 
However,  it  appears  that  the  option  of  invoicing  is  rarely  used  because  of  the 
cumbersome procedures and the fact that the cost of invoicing and collection of the 
sums  would  be  higher  than  the  amounts  collected.  In  the  case  of  very  long 
applications, the fact of informing applicants that the supply of the documents would 
be invoiced to them can have a dissuasive effect. However, this effect is limited since 
the  highest  cost  factor  –  searching  for  and  collating  the  documents  –  cannot  be 
invoiced. 

The  invoicing  option  should  be  retained,  particularly  in  cases  of  really  long 
applications,  but  the  invoicing  and  collection  procedure  could  probably  be 
simplified. 

4.5. 

Consultation of third parties 

The three institutions laid down a procedure of consultation of third parties in their 
rules of procedure. Consultation must be in writing (usually by e-mail). Parliament 
lays  down  a  compulsory  time-limit  for  reply  of  five  working  days.  The  Council 
provides  for  a  “reasonable  time-limit”,  and  the  Commission  has  a  time-limit  of  at 
least  five  working  days.  In  both  cases,  however,  the  consultation  must  enable  the 
institutions to comply with the time-limits for reply laid down in Articles 7 and 8 of 
the Regulation. 

In  the  case  of  documents  originating  in  Member  States,  it  has  been  agreed  that  the 
members of the  Council’s Information Group should act as contacts. Thus requests 
for consultation must be sent to them. 

Generally speaking, third parties comply with reasonable time-limits for reply. 

Consultation  of  third-party  originators  nevertheless  gives  rise  to  a  considerable 
administrative burden, especially in the case of very long applications concerning a 
complete file containing a number of documents originating from different authors. 
Consultation of third parties should be explicitly laid down as a reason for extending 
the time-limit for reply. 

32 

 
 
  
 
The  institutions  have  also  undertaken  to  consult  each  other  systematically  in  the 
event  of  an  application  for  access  to  a  document  originating  in  one  of  the  other 
institutions61. They concluded a “Memorandum of understanding” signed on 9 July 
2002  by  the  representatives  of  the  three  Secretaries-General.  So  far,  this 
Memorandum  has  worked  very  well  in  practice,  and  replies  to  consultations  are 
usually very swift. 

4.6. 

Internal administrative remedy 

The Regulation explicitly provides for an internal administrative remedy against any 
decision  refusing  access  to  a  document  (recital  13  and  Articles  7  and  8).  This 
remedy, known as a confirmatory application, takes the form of the renewal of the 
original application to obtain a revision of the institution’s position. In the case of a 
(partial) refusal, the applicant is informed of the possibility of making a confirmatory 
application within fifteen working days of receiving the institution’s reply. 

Confirmatory  applications  are  examined  by  a  body  independent  of  the  one  which 
took the initial decision. 

In Parliament, initial decisions are taken by the Secretary-General or by an official 
authorised to do so, except in the case of a sensitive document. In this case, and for 
confirmatory applications, the decision is taken by the Bureau. 

In  the  Council,  initial  decisions  are  also  taken  by  the  Secretary-General.  Decisions 
regarding  confirmatory  applications  are  taken  by  the  Council.  Normally,  decisions 
are  adopted  on  a  simple  majority  at  the  proposal  of  the  Information  Group  and 
Coreper. 

The Commission works in a decentralised way because of the size of its departments 
and  the  responsibilities  specific  to  each  Directorate-General.  Initial  decisions  are 
taken  by  the  Director-General  concerned  or  by  an  official  authorised  to  do  so.  The 
Secretary-General is delegated the power by the College to decide on confirmatory 
applications.  To  guarantee  the  independence  of  OLAF  as  regards  investigations, 
decision-making  powers  are  delegated  to  the  Director-General  of  this  Office  when 
the documents requested relate to its investigations62. Initial applications concerning 
the  Secretariat-General  and  OLAF  documents  are  processed  by  Directors  to  retain 
the possibility of an independent review of applications by the Secretary-General or 
Director-General of OLAF. 

This  two-tier  system  of  decision-making  (initial  and  confirmatory  applications)  has 
worked  well.  It  provides  applicants  with  a  simple,  formality-free  means  of  redress 
and a guarantee that applications will be reviewed by a different body from the one 
which  refused  the  initial  application.  This  is  clear  from  the  number  of  initial 
decisions  modified  at  the  stage  of  the  confirmatory  application  (33.1%  at  the 
Commission). However, given the length of the decision-making process concerning 
confirmatory applications, the 15-day time-limit for reply is generally insufficient. 

61 
62 

See Article 15(2) of Regulation 1049/2001. 
Activities mentioned under Article 2(1) and (2) of Decision 1999/352. 

33 

 
 
  
 
                                                 
4.7. 

External remedies 

In  the  event  of  the  confirmation  of  the  refusal,  applicants  are  informed  of  the 
remedies at their disposal to appeal the decision: they can initiate proceedings before 
the Court of First Instance or lodge a complaint with the European Ombudsman. 

In  2002,  the  number  of  appeals  and  complaints  compared  with  the  number  of 
applications was as follows: 

EP 

Council  Comm. 

Number of initial applications 

637

2394 

Number of confirmatory applications 

Number of complaints to the Ombudsman 

Number of cases brought before the Court 

1

-

-

43 

3 

1 

991

96

4

6

Of the seven complaints lodged with the Ombudsman: 
•  five were closed with the conclusion that there was no maladministration63 
•  one resulted in a critical remark64 

•  one led to a draft recommendation, but the case was closed since a similar issue is 

pending before the Court of First Instance65. 

The Court has ruled in only one case, rejecting the applicant’s appeal66. 

In some cases of applications sent to the Commission, applicants attempted to obtain 
documents  to  which  access  had  been  denied  them  by  a  national  court.  A  national 
court may in fact require that the Commission communicate documents to it67. The 
documents communicated in the context of this application are exclusively destined 
for the court concerned, however, and cannot be disclosed.  

4.8. 

Administrative burden for the institutions concerned 

The processing by the institutions of applications for access to documents has given 
rise  to  a  quite  considerable  work  load  since  the  entry  into  force  of  the  Regulation, 
because of the significant increase in the number of applications and because of their 
growing complexity. Issues that have been widely covered in the media often lead to 
a number of applications. The processing of applications often means an extra burden 
for  staff  who  are  already  very  busy.  Lastly,  very  long  and  complex  applications 
require  the  mobilisation  of  administrative  resources  in  the  departments  concerned, 
which  is  often  perceived  as  excessive,  depending  on  the  nature  and  volume  of  the 
documents requested.  

63 
64 
65 
66 
67 

Complaints 736/2002/GG, 1184/2002/PB, 1437/2002/IJH, 1753/2002/GG and 1795/2002/IJH. 
Complaint 648/2002/IJH. 
Complaint 1015/2002/(PB)IJH. 
Case T-76/02, Messina v. Commission, mentioned above. 
Court  Orders  of  13.7.1990  and  of  6.12.1990  in  case  C-2/88  Imm.  Criminal  proceedings  versus 
Zwartveld and others, [1990] ECR I-3365 and I-4405. 

34 

 
 
  
 
 
                                                 
Processing  of  applications  often  involves  considerable  identification  work  and 
searching  for  the  documents  concerned,  in  particular  at  the  Commission.  When  an 
application  concerns  a  complete  file,  the  concept  of  “file”  as  perceived  by  the 
applicant  does  not  necessarily  correspond  to  the  logic  applied  by  the  departments 
when organising their files. 

All  three  institutions  have  embarked  on  ambitious  projects  to  introduce  electronic 
management  and  archiving  of  documents.  In  future,  systematic  registration  of 
documents  in  internal  electronic  registers  will  facilitate  the  identification  of  and 
search  for  documents,  thus  reducing  the  work  load  generated  by  the  search  for 
documents. 

To  guarantee  the  best  possible  application  of  the  Regulation,  the  institutions  have 
organised  major  awareness-raising,  information  and  training  actions  for  their  staff 
(for  instance,  the  publication  of  internal  guides  and  the  organisation  of  training 
schemes). These actions must be pursued and stepped up to improve the familiarity 
of officials with the rules on access to documents. 

4.9. 

Interinstitutional cooperation 

The Regulation applies to three institutions whose roles and methods of operation are 
quite different. To guarantee the coherent application of the rules governing access to 
the  documents,  the  Regulation  has  therefore  provided,  under  Article  15(2),  for  the 
establishment  of  an  interinstitutional  committee  “to  examine  best  practice,  address 
possible conflicts and discuss future developments on public access to documents”.  

The  Committee  consists  of  political  representatives  of  the  three  institutions.  Its 
preparatory  work  is  carried  out  by  the  Secretaries-General  or  their  representatives. 
Because  of  this  high-level  membership,  of  both  the  Committee  itself  and  the 
preparatory group, regular meetings are not possible. 

Moreover,  the  objective  of  the  Interinstitutional  Committee  is  to  discuss  political 
questions raised by the application of the Regulation. However, it has emerged that 
the  implementation  of  the  Regulation  has  raised  a  number  of  technical  and  legal 
questions that cannot be submitted to the political representatives without having first 
been  thoroughly  examined  by  the  departments  responsible  for  implementing  the 
Regulation. These departments have thus far been coordinated on an ad hoc basis. 

4.10.  Conclusions 

•  The institutions, particularly the Commission, regularly receive very long or 

vague applications for access. 

•  The Regulation does not contain any clauses concerning unfair, repetitive or 
clearly unreasonable applications. The institutions are sometimes obliged to 
apply the principle of proportionality. 

•  Compliance with time-limits is sometimes difficult because of the complexity 

of applications and the need to consult third-party originators.  

•  The number of court proceedings and complaints is low compared with the 

volume of applications. 

•  The  application  of  the  Regulation  is  resulting  in  a  considerable  burden  of 

35 

 
 
  
 
for 

work 
management will eventually alleviate the burden. 

the 

institutions.  However,  modernisation  of  document 

•  Some  systematic  and  repetitive  applications  obviously  constitute  misuse  of 

the Regulation.  

36 

 
 
  
 
5. 

PUBLICITY AND ACTIVE INFORMATION 

The  purpose  of  Regulation  1049/2001  is  to  establish,  pursuant  to  Article  255(2)  of 
the EC Treaty, the conditions under which citizens may obtain, on request, access to 
documents  of  Parliament,  the  Council  and  the  Commission.  Although  it  therefore 
concerns “passive” information, the Regulation contains a few provisions on “active” 
information,  for  instance  the  establishment  of  public  registers  and  direct  access  to 
documents by electronic means. Moreover, the Regulation is a fundamental part of a 
more global public information policy. 

5.1. 

Registers 

Article  11  of  the  Regulation  states  that  the  institutions  shall  provide  access  to  a 
register  of  documents  in  electronic  form  to  enable  citizens  to  avail  of  their  access 
rights. Only the Council already had a public register on the Internet before the entry 
into  force  of  Regulation  1049/2001.  Pursuant  to  the  latter,  Parliament  and  the 
Commission launched their registers on 3 June 200268. 

5.1.1.  Nature of registers 

These registers must allow citizens to identify documents likely to be of interest to 
them.  They  are  tools  for  helping  with  the  search,  but  they  must  not  in  any  way 
influence  the  right  of  access  to  documents.  Moreover,  the  fact  that  documents  are 
mentioned in the register does not make them automatically accessible to the public, 
while  other  documents  not  mentioned  in  the  register  may  be  the  subject  of 
applications in the same way as those shown in the register. 

5.1.2.  Contents 

The Regulation does not define the categories of documents that must feature in the 
register.  It  does  not  oblige  the  institutions  to  hold  a  register  covering  all  the 
documents they receive or produce. This would be impossible given the very broad 
definition of the concept of document in Article 3(a) of the Regulation. 

The  registers  must  be  exhaustive  in  terms  of  their  documentary  scope,  however. 
Once the  families of documents forming  part of  the register have been determined, 
all the documents belonging to these families must be mentioned there. 

The  register  must  contain  one  or  more reference numbers  for each  document listed 
there, as well as the subject, title or brief description of the contents and the dates of 
receipt or of drafting and registration. Hyperlinks must be provided to allow access 
to the full text of documents that are directly accessible (see point 5.2). 

The  data  shown  in  the  register  are  devised  in  such  a  way  as  not  to  undermine  the 
protection of the interests covered by the exceptions in Article 4 of the Regulation. 
To this end, an abbreviated title may replace a full title that would reveal information 
which would be harmful if disclosed.  

68 

The Council Register has been accessible since 1 January 1999. 

37 

 
 
  
 
                                                 
A single exception is provided for, however, when a document should be recorded in 
the register: “sensitive” documents within the meaning of Article 9 of the Regulation, 
which must be entered on a register only with the agreement of the originator. The 
annual  report  to  be  presented  by  each  institution  must  mention  the  number  of 
sensitive documents not entered in the register. In 2002, the European Parliament did 
not produce or receive any sensitive documents. There are no “sensitive” documents 
in the documentary field of the Commission’s register, either. For the Council, it is 
stated that out of 250 documents classified at least “EU CONFIDENTIAL”, less than 
one third were not mentioned on the register. 

5.1.3.  Documentary field 

Parliament  has  defined  wide  coverage  of  its  register,  covering  not  only  all 
documents  relating  to  parliamentary  work,  but  also  the  mail  sent  to  the  institution 
and  to  its  President.  The  register  initially  contained  references  to  the  most  recent 
documents and a process of clearing the backlog is now in progress. Parliament also 
intends to broaden the register to include administrative documents. 

The  Council’s  register  covers  all  “standard”  documents,  in  other  words  documents 
relating to the Council’s work that have been submitted to one of its bodies (Working 
Groups, Coreper and Council configurations). 

Given  the  huge  amount  of  documents  and  its  decentralised  organisation,  the 
Commission opted initially for a register of documents registered and disseminated 
by the Secretariat-General’s Registry and relating to the institution’s legislative and 
regulatory  activities.  This  covers  agendas  and  minutes  of  Commission  meetings  as 
well  as  COM,  C  and  SEC  series  documents.  The  register  exists  in  addition  to  the 
register  of  the  President’s  mail  and  other  sources  of  information.  A  recent  addition 
was  a  public  register  of  documents  relating  to  the  committees  which  assist  the 
Commission  in  the  exercise  of  enforcement  powers  (“comitology”),  submitted  to 
Parliament  in  the  context  of  its  legislative  responsibility69.  To  facilitate  matters  for 
users, all of these documents are accessible via the same portal. Greater integration 
of registers and other information tools is planned for the future. 

The documents covered by these registers, in particular that of the Commission, are 
to  be  gradually  extended.  Initially,  the  Commission  focused  on  the  registration  of 
legislative  documents  which  are  also  the  documents  for  which  direct  access  is  a 
priority under Article 12(2) of the Regulation. 

5.1.4.  Use of registers 

The  establishment  of  the  registers  has  led  to  an  increase  in  the  number  of 
applications for access, mainly at Parliament and the Council. In the latter case there 
was  a  70%  increase  in  1999,  the  year  in  which  the  register  was  made  available. 
Parliament  observed  a  spectacular  increase  in  demand  after  3  June  2002:  117 
applications between January and May 2002, and 520 between June and December 
2002. At the Commission, demand increased more gradually throughout 2002. 

69 

Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers 
conferred on the Commission, OJ L 184, 17.7.1999, p. 23. 

38 

 
 
  
 
                                                 
At  Parliament  and  the  Council,  the  vast  majority  of  applications  for  access  arise 
from the consultation of the registers. Almost all the applications sent to Parliament 
are  submitted  using  the  electronic  form  associated  with  the  register.  At  the 
Commission,  only  a  small  number  of  applications  concern  documents  identified  in 
the two registers, that of the COM, C and SEC documents and that of the President’s 
mail.  Most  of  the  applications  concern  files  (infringements,  state  aid,  mergers)  and 
not  specific  documents.  Moreover,  the  applications  sent  to  the  Commission  do  not 
usually concern legislative activities, but rather the monitoring of the application of 
Community law. 

It  is  clear  from  the  Parliament’s  and  Council’s  experience  that  the  registers  enable 
people to make more precise applications and hence they contribute to reducing the 
administrative burden linked to the identification of and search for documents. 

5.2. 

Direct access to documents and dissemination of information 

The  Regulation  does  not  lay  down  criteria  governing  the  direct  accessibility  of 
documents, but states in Article 12 that documents must “as far as possible” be made 
directly  accessible  to  the  public  in  electronic  form  or  through  a  register.  The 
objective of direct accessibility concerns legislative documents in particular. 

All  three  institutions  have  defined  in  their  rules  of  procedure  the  categories  of 
documents which are, as far as possible, made directly accessible in electronic form 
(for  instance  by  creating  links  between  the  references  in  the  register  and  the  full 
texts) or by providing them automatically on request70. 

the  number  of  documents  directly  accessible  should 

The full text of a substantial part of the documents shown in the registers of the three 
institutions  is  now  accessible.  As  the  registers  are  extended  to  cover  more 
documents, 
increase 
significantly. At the moment, over  half of the documents in the Parliament and the 
Council  registers  are  directly  accessible.  The  Commission’s  register  contains  links 
with  the  final  versions  of  COM  documents  on  the  EurLex  site  of  the  Office  for 
Publications.  Work  is  in  progress  to  associate  the  register  with  a  catalogue  of 
documents  not  published  by  the  Office  for  Publications  but  which  must  be  made 
directly accessible, such as the initial versions of COM documents after the adoption 
of the final version. 

In addition to the documents made accessible via the registers, the three institutions 
have  in  recent  years  considerably  developed  the  information  disseminated  to  the 
general  public  through  their  Internet  sites.  The  latter  contain  a  lot  of  factual 
information  aimed  at  generally  informing  the  public.  The  EUROPA  server  gives 
guided access to these different sites via a single portal. Moreover, the sites of each 
institution have links to the registers of the others. There are also services providing 
replies  to  requests  by  the  public  for  information  (EuropeDirect  and  electronic 
mailboxes). 

70 

Annex XV to Parliament’s rules of procedure. 
Article 11 of Council Decision 2001/840. 
Article 9 of the Annex to Commission Decision 2001/937. 

39 

 
 
  
 
                                                 
 
 
5.3. 

Assistance to applicants 

To facilitate exercise by citizens of their right of access, the three institutions have 
published  a  joint  brochure  providing  the  public  with  general  information  on  their 
documents  and  how  to  access  them.  The  brochure  is  available  on  paper  and  in 
electronic form on the institutions’ joint portal on the EUROPA server. Citizens can 
gain access via this portal to the specific sites of the three institutions which contain 
more detailed information on their work and on access to their documents and to the 
registers. 

With  this  information,  it  is  easier  to  make  more  precise,  targeted  applications. 
However,  when  an institution receives an application that is not specific enough, it 
asks the applicant to identify more clearly the subject of the search and assists with 
this,  for  instance  by  explaining  how  to  use  the  register.  This  assistance  very  often 
involves an  exchange of e-mails. If  necessary, telephone contact with the applicant 
helps  clarify  the  application.  In  some  cases,  the  institution  draws  up  a  list  of 
documents likely to be of interest, to enable the applicant to determine what exactly 
is required. In other cases, applicants are informed of sites on the Internet where they 
can find some information that will enable them to clarify their applications. 

It  sometimes  happens  that  applicants  do  not  want  to  obtain  precise  documents,  but 
are looking for more general information. In this case, the applications are handled 
by  information  services  such  as  Parliament’s  “Correspondence  with  the  Citizen” 
service,  the  Council’s  “Information  to  the  public”  unit  and  the  Commission’s 
EuropeDirect service. 

5.4. 

Conclusions 

•  The  establishment  of  public  registers  by  the  three  institutions  makes  it 
easier for citizens to search for documents that may be of interest to them. 

•  More  thorough  integration  of  the  Commission’s  registers  and  other 

information tools is desirable. 

•  The full text of a substantial proportion of the documents mentioned in the 

registers is directly accessible. 

•  Each  institution  has  set  up  information  services  for  the  public  which  deal 

with requests for general information. 

•  A  considerable  amount  of  information  is  disseminated  by  means  of  the 
specific  Internet  sites  of  the  three  institutions.  If  necessary,  more  personal 
assistance  is  provided  to  citizens  when  exercising  their  right  of  access  to 
documents. 

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6. 

REVIEW AND OUTLOOK 

The  analysis  in  Chapters  2  to  5  highlighted  the  strong  and  weak  points  of  the 
Regulation itself and the way in which it has been applied. Now we will evaluate to 
what  extent  the  Regulation  has  permitted  the  achievement  of  the  objective  of 
granting the widest possible access to the documents of the Community institutions 
and of thus ensuring better information and increased participation of citizens in the 
decision-making process. 

6.1. 

General right of access 

While  the  right  of  access  does  not  extend  to  the  documents  of  all  the  Community 
bodies,  it  does  cover  a  growing  number  of  institutions  and  bodies.  Regulation 
1049/2001 now applies to the agencies, while institutions and bodies not covered by 
Article 255 of the Treaty, with the exception of the Court of Justice, have all adopted 
rules on access on a voluntary basis. 

The Regulation on the application to the EC institutions and bodies of the provisions 
in  the  Convention  of  Århus  will  extend  the  right  of  access  to  the  environmental 
information  held  by  all  the  Community  institutions  and  bodies.  Lastly,  the  draft 
Constitutional Treaty drawn up by the Convention provides for a right of access “to 
documents  of  the  Union  institutions,  bodies  and  agencies”.  Thus  there  is  a  real 
prospect  that  the  right  of  access  to  documents  will  apply  generally  in  all  Union 
organisations. 

However,  this  development  will  not  put  an  end  to  the  distinction  between  Union 
citizens and residents on the one hand, and, on the other, citizens of third countries 
not  residing  in  a  Member  State  or  legal  persons  not  established  on  Community 
territory.  The  Convention  of  Århus  does  not  make  this  distinction,  but  the  draft 
Constitution does. In a bid to ensure both equity and clarity, it would be desirable to 
abolish this difference of treatment on a voluntary basis. 

6.2. 

Clarification of material scope 

The  Regulation  provides  a  very  broad  definition  of  the  concept  of  “document”  but 
does not specify the contours. It does not contain any criteria relating to the degree of 
officialisation of documents, with informal messages thus having the same status as 
official records. Moreover, the Regulation does not state either what the concept of 
institution  covers.  Parliament  clarified  the  concept  of  “Parliament  document”  in  its 
rules of procedures, thus delimiting the scope of the Regulation as regards documents 
from  political  groups  and  individual  members  not  holding  a  mandate  from  the 
institution. 

6.3. 

Application of the system of exceptions 

The exceptions laid down under Article 4 of the Regulation correspond to the usual 
limits  on  the  right  of  access  as  featured  in  most  national  laws,  as  well  as  in 
Recommendation (2002) 2 of the Council of Europe and in the Convention of Århus. 
Community  legislation  on  access  to  documents  is  not  any  more  or  less  restrictive 
than that in force in most countries. 

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In  practice,  it  turns  out  that  only  a  few  exceptions  were  invoked  regularly.  They 
concerned protection of: 

–  public security and international relations, invoked by the Council in the context 

of activities under the second and third pillars;  

–  court proceedings and legal advice; 

–  the internal decision-making process; 

–  inspections, investigations and audits, invoked only by the Commission. 

The  global rate  of  positive replies  for  2002 ranged from 70% to 98%. The rates of 
positive replies vary from one institution to another, but the figures are not easy to 
compare. Since the percentages of positive replies for the Council and Commission 
concern only documents that were not yet accessible, this means that a considerable 
number of additional documents have been placed in the public domain because of 
the Regulation. 

The  application  of  the  exception  relating  to  the  protection  of  “personal  data”  is  a 
delicate  matter  because  of  the  interlinking  of  Regulation  1049/2001  and  the 
Regulation on the protection of personal data (45/2001). 

The decision-making process is not protected in the same way as the other interests 
covered by Article 4 of the Regulation. The requirement of “seriously undermining” 
the  process  appears  to  be  excessive  and  demonstration  of  this  leads  to  very 
theoretical arguments. Moreover, this exception should protect not only the decision-
making process of the institution which is the subject of the application for access, 
but  also  that  of  other  institutions  involved  in  the  decision-making  in  that  particular 
case. 

The institutions did  not  have to  deal with cases in which they had to communicate 
documents  in  the  absence  of  an  exception  based  on  the  Regulation  even  though 
disclosure  was  harmful.  However,  problematic  cases  could  arise.  For  instance, 
environmental  protection  is  not  a  reason  for  refusing  access  under  Regulation 
1049/2001.  Given  the  forthcoming  application  of  the  Convention  of  Århus  to  the 
Community institutions, a specific exception should be made, such as the one in the 
Convention. 

More generally, in the light of experience and in a bid to ensure clarity, it would be a 
good thing to provide for specific exceptions covering certain well-defined cases. 

6.4.  Workload generated by the practical implementation of the Regulation 

This matter comprises two aspects. 

First, it is important that the institutions allocate the resources needed to ensure the 
proper  implementation  of  the  Regulation  on  access  to  documents.  The  very 
principles  of  access  to  documents  and  of  transparency  will  be  undermined  if  the 
appropriate resources are not made available. It is not simply a question of allocating 
the  necessary  human  and  material  resources,  but  also  of  ensuring  the  training  and 
information  of  the  persons  concerned.  Access  to  documents  is  a  horizontal  activity 
which involves a large number of people working at the institutions. 

42 

 
 
  
 
Second,  the  Regulation  does  not  explicitly  address  the  problem  of  very  long, 
repetitive, unfair or unreasonable applications. While it might be rather dangerous to 
define this type of application, it would be advisable to prevent the disproportionate 
burden  generated  by  certain  applications  from  penalising  citizens  submitting 
applications  in  good  faith  for  access  to  documents  because  of  a  genuine  need  for 
information. Since the possibility of invoicing copying and postal charges is only a 
limited  disincentive,  the  concept  of  proportionality,  already  enshrined  in  case  law, 
should  be  refined  when  it  comes  to  granting  partial  access  by  removing  parts  of 
documents to which the exceptions do not apply. 

In two cases of particularly long applications, the Commission applied the principle 
of proportionality by analogy with the situation of partial access. Both decisions were 
appealed before the Court of First Instance. We must therefore wait for the ruling of 
the Court before further exploring this solution. 

6.5. 

Place of the Regulation in public information policy 

The objective of Regulation 1049/2001 is to make the work of the institutions more 
transparent and hence to bring them closer to the public. Transparency is not an aim 
in  itself,  but  permits  increased  participation  by  the  public  in  the  decision-making 
process,  thus  strengthening  the  democratic  nature  of  the  institutions  and  the 
confidence of citizens in the European administration. 

Implementation of the Regulation has marked an important stage in the development 
of  a  transparency  policy  at  European  Union  level.  More  than  two  thirds  of  the 
applications  for  access  made  to  the  three  institutions  resulted  in  the  disclosure  of 
documents not yet published, while a growing number of documents is being made 
directly accessible. 

Experience tends to confirm, however, that specialists in European affairs were the 
main  people  to  benefit,  and  that  it  cannot  therefore  be  regarded  as  a  special 
instrument  of  information  for  the  public.  Looking  for  a  Community  institution’s 
unpublished  documents  implies,  in  fact,  that  the  applicant  is  familiar  with  the 
Union’s powers and activities. 

Consequently, there is still a lot of work to be done as regards informing the general 
public, in two ways: people must be kept more abreast of the Union’s activities by 
means of an active information policy, and they must be aware of their right to obtain 
access to the documents of the institutions. 

6.6. 

Recourse to the Regulation with a view to exercising specific rights of access 

The  objective  of  Regulation  1049/2001  is  to  make  documents  accessible  to  the 
public,  disclosure  of  which  will  not  harm  the  public  interest  or  specific  private 
interests.  It  is  not  intended  to  determine  the  conditions  under  which  certain  people 
can obtain special access to documents that cannot be disclosed to the general public. 

However, experience has shown, particularly at the Commission, that the Regulation 
has  sometimes  been  invoked  to  obtain  such  special  access.  Two  cases  of 
inappropriate recourse to the Regulation can be pinpointed: 

•  Some people attempted to obtain, pursuant to the Regulation, the communication 
of documents to which access had been refused them in the context of a specific 

43 

 
 
  
 
procedure  involving  the  invoking  of  the  general  right  to  transparency.  For 
instance,  law  firms  trying  to  obtain,  under  Regulation  1049/2001,  documents  to 
which they did not have access under the right of access to the file granted to the 
parties  concerned,  either  because  the  documents  requested  were  not  even 
accessible  to  the  parties,  or  because  they  were  acting  on  behalf  of  a  third  party. 
Such  applications  can  undermine  the  functioning  of  the  services  responsible  for 
managing  the  files  in  question,  which  generally  concern  investigations  by  the 
Commission. 

•  In other cases, people with a special interest in a file concerning them invoked the 
Regulation because of the absence of specific rules in this area. This occurred in 
the  case  of  the  recruitment  of  officials  or  other  staff,  invitations  to  tender  and 
audits. There is a lack of rules in a number of areas relating to the right of access 
to the file for the parties concerned, going beyond the right of public access. 

6.7. 

Suitability of Regulation 1049/2001 

Regulation 1049/2001 has been applied for two years and no problems have arisen 
during  implementation  that  would  justify  amending  legislation  for  the  time  being. 
However,  further  experience  is  needed  and  significant  case  law  must  be  developed 
before  considering  any  amendment  of  texts  regulating  public  access  to  documents. 
However,  it  would  be  advisable  to  consider  ways  of  protecting  institutions  better 
against obviously unfair applications. 

The new treaty that will emerge from the Intergovernmental Conference is likely to 
extend the right of access to documents and to strengthen the dialogue between the 
institutions  and  civil  society.  The  Regulation  should  be  thoroughly  revised  in  this 
respect.  It  should,  at  the  very  least,  be  adapted  in  order  to  be  applicable  to  all  the 
Union’s  institutions,  bodies  and  agencies,  given  their  very  different  roles.  The 
Regulation would thus become a framework law, the implementing arrangements for 
which  would  have  to  be  laid  down  in  the  rules  of  procedure  of  the  organisations 
concerned.  Moreover,  the  right  of  access  should  be  situated  more  precisely  in  the 
context of public participation in the democratic life of the Union. 

The Regulation could be revised in tandem with the process of ratification of the new 
treaty, based on more experience and new case law. A public debate on transparency 
in  the  European  institutions  should  be  launched  to  steer  this  process.  Specific 
proposals based on the outcome of this broad consultation could then be formulated 
with a view to amending Regulation 1049/2001. 

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7. 

PROPOSED ACTIONS 

Given the analysis of the application of the Regulation and the conclusions which it 
is possible to draw at this juncture, an initial series of actions could be carried out in 
the short term to consolidate the public access right and to incorporate it further into 
a public information policy. In the longer term, an examination should be conducted 
to see to what extent the legislative provisions themselves need to be revised. 

7.1. 

Short-term actions 

7.1.1.  Recommendation to adapt rules of access to those of Regulation 1049/2001 

The  three  institutions  could  reiterate  their  call  to  the  other  Community  institutions 
and bodies, asking them to adopt rules of access to their documents that are similar 
or equivalent to those of Regulation 1049/2001. 

It would be very appropriate if revision of the rules were to coincide with the entry 
into force of the Regulation on the application in EC institutions and bodies of the 
provisions in the Convention of Århus. The institutions and bodies would quite likely 
be anticipating a probable amendment of the Treaty with this voluntary introduction 
of a general right of access.  

7.1.2.  Recommendation  to  extend  the  right  of  access  to  all  natural  and  legal  persons, 

irrespective of nationality or residence 

In the same spirit, the three institutions could adopt a recommendation with respect 
to  the  other  institutions,  bodies  and  agencies,  asking  them  to  extend,  in  their 
implementing rules, the benefit of the right of access to all natural and legal persons, 
irrespective of nationality or residence. 

7.1.3.  Development of the registers and of direct access to documents 

The Commission could embark on the work required to integrate its public document 
registers further. 

A study could be launched to look into the feasibility of extending coverage of the 
Commission  registers  to  other  categories  of  documents.  This  would  largely  depend 
on the progress made in modernising document management. 

The  number  of  documents  for  which  the  text  is  directly  accessible  via  the  Internet 
could be increased considerably, for instance the categories mentioned under Articles 
9 (2) and 9 (3) of the Commission’s implementing rules. 

Pursuant  to  a  decision  by  the  Interinstitutional  Committee  at  its  meeting  on 
23.9.2003, the three institutions should highlight the relations between the documents 
in their registers using a system of hyperlinks that allow users to navigate through a 
given  subject  or  specific  procedure  using  the  information  tools  of  the  three 
institutions. 

45 

 
 
  
 
7.1.4.  Development of other information tools 

The dissemination of information on the EUROPA server could be better coordinated 
by the three institutions. 

General  public  information  tools  such  as  EuropeDirect  could  be  promoted  more 
actively. 

Ways  of  streamlining  the  various  networks  of  information  points  should  be 
examined,  and  they  should  be  coordinated  better,  both  within  the  Commission  and 
between the institutions. 

7.1.5. 

Strengthening interinstitutional cooperation 

Cooperation  between  the  three  institutions  is  now  consolidated,  both  in  political 
terms  and  in  terms  of  operational  services.  Mechanisms  for  the  exchange  of 
experiences  should  be  put  in  place  in  conjunction  with  the  other  institutions  and 
bodies applying similar rules, and with the agencies. 

The Interinstitutional Committee should regularly review the administrative practices 
of  the  three  institutions  in  the  light  of  Court  judgments  and  decisions  by  the 
Ombudsman. 

A  joint  methodology  should  be  established  for  the  registration  and  recording  of 
applications for access to allow the three institutions to draw up annual reports based 
on a uniform model. 

7.1.6.  Appropriate  training  for  officials  responsible  for  access  to  the  documents  of  the 

agencies and other institutions 

In support of the recommendations set out under points 7.1.1 and 7.1.2, information 
and training sessions should be organised for officials and staff members who will be 
responsible for applying rules of access in the other institutions, bodies and agencies. 
Training material should also be made available to them. 

7.2. 

Longer-term actions 

7.2.1.  List of areas lacking specific rules of access 

First of all, there is a need to take stock of all the sectors in which specific rules on 
access  to  files  for  persons  with  special  interests  are  lacking  or  insufficient.  The 
shortcomings in these measures would subsequently have to be remedied. 

7.2.2.  Examination of the need or advisability of amending Regulation 1049/2001 

This examination will become useful as soon as a significant body of case law has 
been developed and experience has been acquired by the Community institutions and 
bodies in applying the Convention of Århus, and when the process of ratification of 
the  Constitution  is  in  progress.  If,  following  this  examination,  revision  of  the 
Regulation should prove indispensable, a broad public debate should be held before 
submitting a proposal for amendment. 

46