Report from the Commission on the application in 2003 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents
Date: 2004-04-30
Institutions: European Commission
Subjects: Council of the European Union, European Commission, European Parliament, access to information, activity report, provision of documents

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.04.2004 
COM(2004) 347 final 

REPORT FROM THE COMMISSION 

on the application in 2003 
of Regulation (EC) No 1049/2001 
regarding public access to European Parliament, Council and Commission documents 

EN 

   EN 

 
 
 
  
FOREWORD 

Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and 
Commission documents1 has entered its third year. During the first quarter of 2003, each of 
the  three  institutions  published  an  initial  annual  report  concerning  the  application  of  the 
Regulation in accordance with the terms of Article 17(1)2.  

The present report starts by outlining the measures introduced or finalised in 2003 in order to 
ensure that the Regulation is applied in full. The first three chapters cover various regulatory 
amendments  in  succession,  the  development  of  registers  and  the  results  of  interinstitutional 
cooperation. 

A  fourth  chapter  examines  requests  for  access,  the  percentage  of  requests  refused  and  the 
reasons for these refusals. 

The fifth chapter deals with the complaints submitted to the Ombudsman and the sixth gives a 
description of the state of case law. 

The statistics on the processing of requests for access are included in the Annex. The tables 
show the figures for the two years in which the Regulation has been in force. 

Finally,  it  should  be  borne  in  mind  that  the  statistics  relate  only  to  requests  for  access  to 
unpublished  documents  and  do  not  cover  either  orders  for  public  documents  or  requests  for 
information.  

1 
2 

OJ L 145, 31.5.2001, p. 43. 
Commission report adopted on 29.4.2003, COM(2003) 216 final. 

2 

 
 
  
 
                                                 
TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

1.3. 

1.4. 

1.5. 

2. 

Measures laid down in the Regulation ......................................................................... 5 

Amendment of the Regulation on the opening to the public of the historical archives5 

Extension of the scope of Regulation 1049/2001 to the Community agencies............ 5 

Decisions adopted by other Community institutions or bodies ................................... 5 

Proposals concerning the application of the Århus Convention .................................. 6 

Evaluation of the implementation of the principles of Regulation 1049/2001 ............ 6 

Registers and the provision of information to the public............................................. 6 

2.1. 

Development of the register of internal Commission documents................................ 6 

2.1.1.  Scope of the register..................................................................................................... 6 

2.1.2.  Directly accessible documents ..................................................................................... 7 

2.1.3.  Sensitive documents not included in the register......................................................... 7 

2.2. 

2.3. 

3. 

Creation of a register concerning the work of the committees .................................... 7 

The "access to documents" site on the Internet............................................................ 8 

Interinstitutional cooperation ....................................................................................... 8 

3.1.  Work of the interinstitutional committee ..................................................................... 8 

3.2. 

Administrative cooperation between the institutions................................................... 9 

4. 

4.1. 

4.2. 

4.3. 

4.4. 

Handling of requests for access.................................................................................... 9 

Volume of requests ...................................................................................................... 9 

Areas of major interest ............................................................................................... 10 

Professional profile and geographical origin of requesters........................................ 10 

Rate of positive replies............................................................................................... 10 

4.4.1. 

Initial requests ............................................................................................................ 10 

4.4.2.  Confirmatory requests................................................................................................ 11 

4.5. 

Reasons for refusal..................................................................................................... 11 

4.5.1.  At the initial stage ...................................................................................................... 11 

5. 

Complaints submitted to the European Ombudsman................................................. 12 

5.1. 

Complaints which have been closed .......................................................................... 12 

5.1.1.  Complaint 1437/2002/IJH of 31.7.2002..................................................................... 12 

3 

 
 
  
 
 
5.1.2.  Complaint 1753/2002/GG of 7.10.2002..................................................................... 12 

5.1.3.  Complaint 412/2003/GG of 24.2.2003....................................................................... 12 

5.1.4.  Complaint 415/2003(IJH)TN of 25.2.2003................................................................ 13 

5.1.5.  Complaint 790/2003/GG of 17.4.2003....................................................................... 13 

5.1.6.  Complaint 900/2003/(IJH)TN of 13.5.2003............................................................... 14 

5.1.7.  Complaint 2183/2003/(TN)IJH of 13.12.2003........................................................... 14 

5.2. 

Complaints pending at the end of 2003...................................................................... 14 

6. 

6.1. 

6.2. 

6.3. 

Judicial procedures..................................................................................................... 15 

Judgments rendered in 2003....................................................................................... 15 

Other appeals lodged in 2002..................................................................................... 15 

New appeals lodged in 2003 ...................................................................................... 15 

ANNEX.................................................................................................................................... 17 

4 

 
 
  
 
1. 

MEASURES LAID DOWN IN THE REGULATION 

1.1. 

Amendment  of  the  Regulation  on  the  opening  to  the  public  of  the  historical 
archives 

On the basis of the Commission proposal3, the Council adopted Council Regulation 
(EC,  Euratom)  No  1700/2003  on  22  September  2003  amending  Regulation  (EEC, 
Euratom) No 354/83 concerning the opening to the public of the historical archives4. 

This  Regulation  brings  the  Regulation  on  the  historical  archives  into  line  with  the 
Regulation on public access to documents. In particular, the provisions of Regulation 
No 354/83 excluding certain categories of documents from public access have been 
replaced  by  provisions  which  allow  exceptions  to  be  applied  to  the  right  of  access 
beyond a period of 30 years. These exceptions concern: 

–  the protection of privacy and of the integrity of the individual; 

–  the protection of commercial interests; 

–  the specific provisions on sensitive documents. 

Moreover,  the  institutional  scope  of  the  Regulation  on  the  historical  archives  has 
been  extended  to  include  the  European  Economic  and  Social  Committee,  the 
Committee  of  the  Regions  and  similar  agencies  and  bodies  created  by  the 
Community legislature. 

1.2. 

Extension of the scope of Regulation 1049/2001 to the Community agencies 

In  line  with  the  Commission's  proposals,  the  provisions  setting  up  similar  agencies 
and bodies were amended as a result of the adoption of a number of Regulations by 
the  Council  on  18  June  2003  and  by  the  European  Parliament  and  the  Council  on 
22 July 20035. 

These  Regulations,  which  came  into  force  on  1  October  2003,  make  Regulation 
1049/2001  applicable  to  the  agencies.  The  agencies  are  required  to  adopt  the 
implementing rules for the Regulation by 1 April 2004.  

1.3. 

Decisions adopted by other Community institutions or bodies 

The  Committee  of  the  Regions  and  the  European  Economic  and  Social  Committee 
have  adopted  rules  on  accessing  their  documents  which  are  based  on  Regulation 
1049/20016.  

3 
4 
5 
6 

COM(2002) 462 final, 19.8.2002. 
OJ L 243, 27.9.2003, p. 1. 
Regulations 1641/2003 to 1655/2003, OJ L 245, 29.9.2003. 
Decision  No  64/2003  of 
Decision No 603/2003 of the EESC, OJ L 205, 14.8.2003, p. 19. 

the  Committee  of 

the  Regions,  OJ  L  160,  28.6.2003,  p.  96; 

5 

 
 
  
 
                                                 
1.4. 

Proposals concerning the application of the Århus Convention 

On  24  October  2003,  the  Commission  adopted  a  proposal  for  a  Regulation  on  the 
application  of  the  provisions  of  the  Århus  Convention  on  access  to  information, 
public  participation  in  decision-making  and  access  to  justice  in  environmental 
matters to EC institutions and bodies7. 

This proposal makes provision for extending the scope of Regulation 1049/2001 to 
the Community institutions and bodies which are not referred to in Article 255 of the 
EC Treaty as regards public access to environmental information. These provisions 
will  apply  to  the  Court  of  Justice  only  in  cases  where  it  does  not  act  as  a  judicial 
body. 

1.5. 

Evaluation of the implementation of the principles of Regulation 1049/2001 

In  accordance  with  Article  17(2)  of  the  Regulation,  the  Commission  carried  out  an 
evaluation  of  the  Regulation  and  of  its  implementation.  The  report  on  this  exercise 
was adopted on 30 January 2004 and published8. 

2. 

REGISTERS AND THE PROVISION OF INFORMATION TO THE PUBLIC 

2.1. 

Development of the register of internal Commission documents 

2.1.1. 

Scope of the register 

The  register  has  been  extended  to  include  agendas  and  minutes  of  Commission 
meetings; these documents have been included in the register since 1 January 2002. 
As a result, the register now covers all the documents which reflect the work of the 
College.  

At the end of 2003, the register contained the following documents: 

COM 

C 

OJ 

PV 

SEC 

Total 

2001 

2002 

2003 

Total 

1 956 

5 389

2 095 

6 478

2 338 

6 823

6 389 

18 690

-

134

135

269

-

4 773 

12 118

116

113

229

3 066 

11 889

2 467 

11 876

10 306 

35 883

During 2003, action was taken to extend the register to include studies carried out on 
behalf of the Commission by outside experts. These studies have been accessible to 
the public since March 2004. The register includes the studies carried out since 2001. 

7 
8 

COM(2003) 622 final. 
COM(2004) 45 final. 

6 

 
 
  
 
 
 
                                                 
2.1.2.  Directly accessible documents 

During its initial phase, the register provided access only to final documents from the 
COM series through a link to the Eur-Lex website managed by the EU's Publications 
Office. 

Agendas and minutes are accessible in their entirety. However, it was not possible to 
make the other document series directly accessible because the register did not have 
a document index. An index of this kind is now  in place  and will give users direct 
access to a large number of documents from the C series and to a significant number 
of documents from the SEC series. All the documents indexed in the register will be 
made directly accessible as soon as they have been disclosed following a request for 
access. 

2.1.3. 

Sensitive documents not included in the register 

Under  Article  9  of  the  Regulation,  "sensitive"9  documents  must  be  treated  in  a 
specific  way.  Paragraph  3  of  this  Article  stipulates  that  sensitive  documents  are 
recorded in the register only with the consent of the originator. 

In accordance with this provision, 25 documents classified as "Confidentiel UE" [EU 
confidential] from the "C" series of documents are not mentioned in the register. The 
Commission  does  not  keep  other  sensitive  documents  which  are  covered  by  the 
register. 

2.2. 

Creation of a register concerning the work of the committees 

In addition to the register of internal documents mentioned in point 2.1, which covers 
the  Commission's  legislative  activity,  a  new  register  has  been  created  in  order  to 
inform the public about the work of the committees which assist the Commission in 
exercising its implementing powers ("comitology"). 

This new register, which was opened to the public in December 2003, identifies the 
documents associated with the work of the committees involved in the "comitology" 
process which have been forwarded to the European Parliament pursuant to Article 7 
of  the  Decision  of  28  June  laying  down  the  procedures  for  the  exercise  of 
implementing powers conferred on the Commission ("comitology" decision)10. 

9 

10 

"Documents originating from the institutions or the agencies established by them, from Member States, 
third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ 
or ‘CONFIDENTIEL’ in accordance with the rules of the institution concerned, which protect essential 
interests of the European Union or of one or more of its Member States in the areas covered by Article 
4(1)(a), notably public security, defence and military matters." (Article 9(1)). 
Decision 1999/468/CE, OJ L 184, 17.7.1999, p. 23. 

7 

 
 
  
 
                                                 
This register generally contains the following types of documents: 

–  agendas of committee meetings; 

–  draft implementing measures; 

–  summary minutes of meetings; 

–  results of votes on opinions delivered by the committees. 

The register is accompanied by a document index which gives users direct access to 
the complete text of certain documents. 

2.3. 

The "access to documents" site on the Internet 

The Commission has created a specific website for the public called "Openness and 
access to documents" on the EUROPA server. The site covers the following: 

–  a  guide,  available  in  the  11  official  languages  (before  enlargement),  explaining 
how  members  of  the  public  can  exercise  their  right  of  access  and  obtain 
documents which are publicly accessible; 

–  a  screen  giving  access  to  three  registers  (internal  and  preparatory  documents, 
comitology,  correspondence  of  the  President  of  the  Commission),  and  other 
sources  of  information  (such  as  the  Pre-Lex  and  Celex  databases,  the  Official 
Journal  online,  press  releases,  the  Bulletin  and  the  General  Report  on  the 
Activities of the EU); 

–  the  text,  in  the  11  official  languages,  of  the  Regulation  and  the  implementing 

rules; 

–  links  to  judgments  of  the  Court  of  Justice  and  the  Court  of  First  Instance 

concerning transparency; 

–  links to the sites of the European Parliament and the Council; 

–  information on national legislation concerning transparency. 

In the course of 2003, the site attracted a total of 384 087 visitors, i.e. an average of 
more than 30 000 a month and almost 1 500 a day.  

3. 

INTERINSTITUTIONAL COOPERATION 

3.1.  Work of the interinstitutional committee 

This  committee,  which  was  set  up  pursuant  to  Article  15(2)  of  Regulation 
1049/2001,  met  on  23  September  2003  in  Strasbourg.  Present  at  the  meeting  were 
Charlotte  Cederschiöld,  Vice-President  of  the  European  Parliament,  Roberto 
Antonione, Acting President of the Council and Loyola de Palacio, Vice-President of 
the Commission. 

During this meeting, the interinstitutional committee took the following steps: 

8 

 
 
  
 
–  noted the results of the analysis of the compliance of the confidentiality clauses in 
secondary  Community  legislation  with  Regulation  1049/2001  —  an  analysis 
carried out by the Commission pursuant to Article 18(3) of the Regulation11; 

–  adopted  the  proposals  of  the  Secretary-General  of  the  Council  with  a  view  to 
institutions  concerning  document 

the 

strengthening  cooperation  between 
management and archiving; 

–  carried out an evaluation of the public hearing concerning the implementation of 

Regulation 1049/2001, held on 12 June 2003 at the European Parliament; 

–  held a discussion on the report concerning the implementation of the principles of 
Regulation 1049/2001, which the Commission was required to submit pursuant to 
Article 17(2) of the Regulation12. 

3.2. 

Administrative cooperation between the institutions 

In order to put into practice the guidelines set out by the interinstitutional committee, 
the  departments  responsible  for  implementing  Regulation  1049/2001  within  the 
Secretariats-General  of  the  European  Parliament,  the  Council  and  the  Commission 
stepped up the exchange of information and experience. These regular contacts make 
it  possible  to  identify  best  practice  and  apply  the  Regulation  consistently.  The 
"Memorandum of Understanding" signed in Strasbourg on 9 July 2002 has resulted 
in regular consultations between the three institutions. 

4. 

HANDLING OF REQUESTS FOR ACCESS 

4.1. 

Volume of requests 

2002  saw  the  volume  of  requests  double  compared  to  the  previous  three  years.  It 
would  appear  that  the  volume  of  requests  rose  significantly  because  Regulation 
1049/2001 had been implemented and become widely known and because the public 
register was opened on 3 June 2002. 

The  second  year  in  which  the  Regulation  was  in  force  was  marked  by  a  similar 
increase in absolute figures: 

–  the  number  of  initial  requests  rose  from  991  to  1 523,  i.e.  an  increase  of  532  or 

53.7%; 

–  143 confirmatory requests were submitted compared to 96 in 2002, i.e. an increase 

of 47 or 49%. 

The 1 523 initial requests resulted in 2 931 documents being examined (compared to 
2 150 in 2002). Some of the requests are very extensive or non-specific, particularly 
when a requester asks for "all documents concerning" a particular field of activity or 
specific  subject  or  when  requests  relate  to  entire  case  files  (such  as  in  the  case  of 
State  aid  or  competition).  In  cases  like  these,  the  departments  concerned  asked 

11 
12 

See the 2002 report, COM(2003) 216 final, part A, point 1.5. 
This report was adopted on 30 January 2004 and published as COM(2004) 45 final. 

9 

 
 
  
 
                                                 
requesters  to  make  their  requests  more  specific  or  restrict  their  scope  so  that  they 
could be dealt with properly. 

4.2. 

Areas of major interest 

As regards areas which have generated the most interest, the trends observed in 2002 
have also been reinforced: most requests concern competition policy, customs issues 
and indirect taxation, the internal market and environmental policy. More than half 
of the  requests  for access relate to  one  of these four areas  or to general  documents 
managed by the Secretariat-General, such as the minutes of preparatory meetings for 
decisions  taken  by  the  Commission  or  correspondence  received  or  sent  by  the 
President. 

The  increase  in  the  volume  of  demand  has  not  had  an  impact  on  the  relative 
importance  of  the  various  areas  of  activity.  However,  there  has  been  a  significant 
increase in public interest in external trade and regional policy. 

4.3. 

Professional profile and geographical origin of requesters 

The distribution of requests according to the socio-professional categories to which 
requesters  belong  has  not  changed  significantly.  Almost  a  quarter  of  requests  are 
received  from  various  interest  groups,  and  one  fifth  from  law  firms.  Students  and 
researchers still account for around 10% of requests, and the percentage of requests 
from  people  whose  socio-professional  profile  is  not  indicated  remains  at  around 
30%. This latter category includes a large number of requests sent by e-mail, where 
only the requester's name can be identified. The proportion of requests submitted by 
journalists remains low (around 3%). 

A  quarter  of  requests  come  from  individuals  and  organisations  based  in  Belgium. 
The  fact  that  they  account  for  such  a  high proportion  of  requests  is  due  to  the  fact 
that a large number of multinational companies, international law firms, associations 
and  NGOs  operating  at  European  level  have  their  headquarters  in  Brussels. 
Otherwise,  the  majority  of  requests  come  from  the  following  countries:  Germany 
(12%),  Italy  (8.8%),  the  United  Kingdom  (7.9%),  France  (7.8%),  the  Netherlands 
(6.3%)  and  Spain  (5.25%).  Half  of  all  requests  come  from  these  six  countries.  The 
geographical origin of 12.61% of the requests cannot be identified. This is due to the 
number  of  requests  sent  by  e-mail  from  addresses  which  cannot  be  identified  as 
coming from a particular country. 

4.4. 

Rate of positive replies 

4.4.1. 

Initial requests 

The percentage of positive replies sent out during the initial request stage has risen 
slightly since 2002 from 66.5% to 69.31%. In 66.83% of cases, the entire document 
was  disclosed,  and  in  2.48%  of  cases  requesters  were  granted  partial  access  to  the 
documents concerned. 

It  should  also  be  noted  that,  in  approximately  3%  of  cases,  the  request  related  to  a 
document  which  did  not  exist.  A  similar  number  of  requests  concerned  documents 
which had already been or were in the process of being published. In these cases, the 
requester was informed as to how he could access the documents concerned. 

10 

 
 
  
 
4.4.2.  Confirmatory requests 

The rate of positive replies at the confirmatory request stage has increased by around 
5%. The percentage of confirmations of the initial decision has gone from 66.9% to 
61.57%. Conversely, the re-examination of requests resulted in a positive decision in 
30.13% of cases (compared to 23.9% in 2002). The percentage of requests for which 
partial access was granted after initially being refused remains at around 9%. 

The number of confirmatory requests has risen by the same proportion as the volume 
of initial requests, i.e. by around 50%, and the percentage of positive replies to initial 
requests has remained stable. As a result, the proportion of cases in which access was 
initially refused which gave rise to a confirmatory request has also remained at the 
same level as in 2002, i.e. approximately one third. 

Following completion of the process for handling requests, the rate of positive replies 
stands  at  72.82%  (compared  to  70.7%  in  2002);  in  69.5%  of  cases,  the  entire 
document  was  disclosed,  and  in  3.32%  of  cases  requesters  were  granted  partial 
access.  

4.5. 

Reasons for refusal 

4.5.1.  At the initial stage 

The main reason for the refusal of requests is still the desire to protect the objectives 
of inspections, investigations and audits (third indent of Article 4(2)). The percentage 
of refusals based on this exception has risen slightly to 36.92% (compared to 35.9% 
in 2002). In most cases, the refusals relate to requests for access to letters of formal 
notice,  reasoned  opinions  or  other  documents  relating  to  ongoing  infringement 
procedures. 

The  second  reason  for  refusal  concerns  protection  of  the  Commission's  decision-
making  process  (Article  4(3)).  This  exception  was  invoked  in  11.81%  of  cases  in 
which access was refused (compared to 8.6% in 2002). 

There has been a sharp rise in the number of requests refused because of the need to 
protect: 

–  the public interest as regards international relations (from 1.8% to 5.27%); 

–  commercial interests (from 3.7% to 8.44%) and 

–  court proceedings and legal advice (from 3.7% to 9.07%). 

Finally, the number of cases in which access to documents from the Member States 
was  refused  following  opposition  from  them  has  also  risen  significantly,  while 
remaining low (from 2.1% to 5.8%). 

11 

 
 
  
 
5. 

COMPLAINTS SUBMITTED TO THE EUROPEAN OMBUDSMAN 

5.1. 

Complaints which have been closed13 

The  Ombudsman  closed  the  two  complaints  submitted  in  2002  which  were  still 
pending  at  the  end  of  2002,  as  well  as  five  of  the  fifteen  complaints  submitted  in 
2003. 

5.1.1.  Complaint 1437/2002/IJH of 31.7.2002 

The  complainant,  a  private  investor  in  the  Lloyd's  insurance  scheme,  wanted  to 
obtain a copy of the letter of formal notice sent by the Commission to the authorities 
in the United Kingdom. The Commission refused to disclose the document because it 
wanted  to  protect  its  investigation  into  the  Lloyd's  case,  which  was  particularly 
complex and sensitive. 

The Ombudsman took the view that the Commission was entitled to refuse access to 
the document on the basis of the exception provided for in the third indent of Article 
4(2) of the Regulation, in the light of the case law derived from the "Petrie" case, in 
order to avoid jeopardising the climate of confidence essential to finding an amicable 
solution14.  He  was  also  of  the  opinion  that,  given  the  circumstances,  the  public 
interest  in  disclosing  a  document  was  not  of  paramount  importance.  He  closed  the 
case, noting that there had been no maladministration in this case. 

5.1.2.  Complaint 1753/2002/GG of 7.10.2002 

The  complainant  contested  the  refusal  to  send  him  documents  which  came  from  a 
Member  State.  After  being  consulted  by  the  Commission,  the  national  authorities 
indicated  that  they  were  opposed  to  the  disclosure  of  these  documents.  The 
Commission therefore refused access to them pursuant to Article 4(5) of Regulation 
1049/2001. 

The Ombudsman took the view that the Commission had acted correctly, in view of 
the judgment of the Court of First Instance in case T-76/0215. 

The Ombudsman nevertheless observed that the provisions on the implementation of 
the Regulation adopted by the Commission were not specific enough. He referred, in 
particular, to Article 5(3) and (4) of the Regulation. The Ombudsman took the view 
that the wording of these provisions and the structure of the Article did not correctly 
reflect  the  need  for  systematic  consultation  of  the  Member  States.  In  comments 
annexed to the decision, he said that the Commission should review these provisions. 
The Commission has taken note of the comments and plans to revise the provisions 
when the implementing rules are next amended. 

13 

14 
15 

The decisions of the Ombudsman are accessible on the website: 
http://www.euro-ombudsman.eu.int/decision/en/default.htm  
Judgment in case T-191/99, Petrie et al v Commission, European Court Reports 2001, p. II-3677. 
See point 6.1 below. 

12 

 
 
  
 
                                                 
 
5.1.3.  Complaint 412/2003/GG of 24.2.2003 

The complainant, a university researcher, wanted to obtain an opinion from the Legal 
Service concerning the relationship between the EC Treaty and the Euratom Treaty 
as regards State aid. The Commission refused access on the basis of the exception set 
out in the second indent of Article 4(2) (protection of legal advice). 

With  regard  to  another  complaint  concerning  the  accessibility  of  legal  advice,  the 
Ombudsman  took  the  view  that  a  distinction  should  be  made  between,  on  the  one 
hand, advice given in the context of legislative activity, which should in principle be 
made  available  once  the  decision-making  process  has  been  completed  and,  on  the 
other, advice relating to a litigation procedure16. 

In the present case, the Ombudsman came to the conclusion that the advice was not 
given during the drawing up of a legislative act and that the Commission was entitled 
not to disclose it. He also held that the scientific interest invoked by the complainant 
did not in itself constitute overriding public interest in disclosure.  

5.1.4.  Complaint 415/2003(IJH)TN of 25.2.2003 

Submitted on behalf of an NGO, this complaint concerned the Commission's refusal 
to  disclose  documents  relating  to  possible  future  negotiations  on  a  multilateral 
investment  framework  within 
the  World  Trade  Organisation  (WTO).  The 
Commission  interpreted  this  as  relating  to  the  seven  questions  mentioned  in 
paragraph 22 of the Doha ministerial declaration. In so far as the documents which 
the  Commission  sent  to  the  WTO  are  accessible  on  the  Internet,  the  Commission 
refused  to  disclose  the  preparatory  documents  in  order  to  avoid  undermining  its 
position  in  any  future  negotiations.  The  reason  given  was  the  need  to  protect  the 
public  interest  as  regards  international  relations  (third  indent  of  Article  4(1)(a)  of 
Regulation 1049/2001). 

The complainant argued that the Commission had unjustifiably reduced the scope of 
his request and that the exception invoked could not apply to the case in question. 

Noting that the wording of the request for access was fairly general, the Ombudsman 
proposed  that  the  Commission  should  help  the  complainant  to  draw  up  a  more 
specific  request  by  providing  him  with  a  complete  list  of  all  the  documents 
concerning the issue of multilateral investment. The Commission enlarged the scope 
of the search and gave the Ombudsman a complete list of the documents concerned. 
As the Commission accepted the amicable solution proposed by the Ombudsman, the 
Ombudsman closed the file. 

5.1.5.  Complaint 790/2003/GG of 17.4.2003 

The  complainant,  a  journalist,  wanted  access  to  a  study  on  compliance  with  the 
provisions  of  the  “Television  without  Frontiers”  Directive  by  German  television 
channels. After initially refusing the request, the Commission granted partial access 
to  the  study.  In  accordance  with  the  exception  on  the  protection  of  investigations 
(third  paragraph  of  Article  4(2)),  the  study  was  amended  by  removing  those  parts 

16 

Special  report  to  the  EP  of  12.12.2002  following  a  draft  recommendation  to  the  Council  concerning 
complaint 1542/2000/(PB)SM. 

13 

 
 
  
 
                                                 
which  related  to  possible  infringements  of  the  Directive.  The  complainant  insisted 
that the entire study be disclosed. 

The  Ombudsman  took  the  view  that  the  study  was  commissioned  as  part  of  an 
investigation  into  possible  infringements  of  the  “Television  without  Frontiers” 
Directive and that access could therefore be refused on the basis of the "Petrie" case 
law.  

5.1.6.  Complaint 900/2003/(IJH)TN of 13.5.2003 

The  complaint  came  from  a  law  firm  acting  on  behalf  of  a  chemical  group.  It 
concerned the refusal to disclose a draft document drawn up by the EFTA Secretariat 
prior to a decision taken by the EEA Joint Committee. 

The complainant first of all objected to the fact that the Commission considered the 
document to come from a third party and therefore consulted the EFTA Secretariat. 
Pointing out that the EFTA Secretariat based its opposition to disclosure on the fact 
that the negotiations were still under way, the complainant went on to argue that this 
was not a justifiable reason for refusing to disclose the document on the basis of the 
exception relating to the protection of international relations (third indent of Article 
4(1)(a) of Regulation 1049/2001). The complainant finally invoked his client's right 
to assert his interests during the decision-making process in question. 

In the case of each of the grievances expressed by the complainant, the Ombudsman 
concluded that maladministration by the Commission had not taken place.  

5.1.7.  Complaint 2183/2003/(TN)IJH of 13.12.2003 

The complaint came from an environmental NGO and concerned the fact that a reply 
to a request had not been received by the stipulated deadline. However, the complaint 
was lodged directly without a confirmatory request being submitted. Moreover, the 
reply and the complaint crossed paths. As the Commission acknowledged that there 
was a slight delay in the handling of the request, the Ombudsman closed the file and 
noted that maladministration had not taken place in this case. 

5.2. 

Complaints pending at the end of 2003 

Ten complaints submitted in 2003 are still pending. 

In  three  cases,  the  complainant  has  requested  access  to  the  complete  version  of  an 
audit report to which partial access has been granted. 

The other cases relate to the following: 

(1) 

(2) 

(3) 

access  to  documents  originating  in  the  Member  States  and  access  to  a  legal 
opinion; 

communications with a Member State concerning an infringement procedure; 

access to the complete file concerning an invitation to tender, certain parts of 
which have been sent to the complainant; 

(4) 

access to all the documents relating to international negotiations under way; 

14 

 
 
  
 
(5) 

access to an entire file relating to external aid; 

(6) 

(7) 

the  fact  that  the  documents  requested  were  not  made  available  before  the 
deadline set out in the Regulation; 

failure  to  comply  with  the  Code  of  Good  Administrative  Behaviour  in  the 
handling of a request for access and the allegedly unauthorised disclosure of 
the  complainant's  identity  in  the  letter  by  which  the  Commission  consulted 
the national authorities. 

6. 

JUDICIAL PROCEDURES 

6.1. 

Judgments rendered in 2003 

A single judgment concerning the application of Regulation 1049/2001 was rendered 
in 2003. This was a judgment of the Court of First Instance of 17 September 2003 in 
case  T-76/02,  Mara  Messina  v  Commission.  Initially,  the  case  related  to  the 
Commission's  refusal  to  send  the  requester  the  correspondence  exchanged  between 
the Commission and the Italian authorities concerning a State aid scheme. 

During  the  proceedings  before  the  Court,  the  Commission  decided  to  disclose  the 
correspondence which it had sent to the Italian authorities and to consult them about 
the  possibility  of  disclosing  the  letters  which  they  had  sent  to  the  Commission  in 
connection with the investigations into this aid. After the Italian authorities expressed 
their  opposition  to  this,  the  Commission  continued  to  refuse  to  disclose  the  letters 
from the Italian authorities, invoking Article 4(5) of the Regulation.  

The Tribunal rejected the appeal and confirmed that the Commission was entitled to 
refuse access to the documents sent by the Italian authorities in connection with the 
investigations into this aid, since these authorities had expressed their opposition to 
disclosure. 

6.2. 

Other appeals lodged in 2002 

The four other appeals lodged in 2002 are still pending. Information concerning the 
subject of the dispute is set out in the Commission's 2002 report17. 

6.3. 

New appeals lodged in 2003 

Case  T-2/03,  Verein  für  Konsumenteninformation  (VKI)  v/  Commission18  is 
described in the 2002 report (part B, point 4.1). 

–  T-170/03 British  American  Tobacco  (Investments)  Limited  v/  Commission; OJ C 

171/39 19/7/2003 

–  T-187/03 Isabella Scippacercola v/ Commission ; OJ C 200/25, 23/8/2003  

–  T-391/03  Yves  FRANCHET  and  Daniel  BYK  v/  Commission ;  OJ  C  21/46, 

24/1/2004 

17 
18 

COM(2003) 216 final, part B, point 4.1. 
OJ C 55, 8.3.2003, p. 37. 

15 

 
 
  
 
                                                 
Seven cases relate to the same matter as the case Messina v Commission, mentioned 
in point 6.1: 

–  T-139/03  Nuova  Agricast  srl  v/  Commission  and  T-151/03  NUOVA  AGRICAST 

srl c/ Commission; OJ C 146/43, 21/6/2003 and OJ C 146/45, 21/6/2003 

–  T-287/03, SIMSA v/ Commission ; OJ C 239/26, 4/10/2003 

–  T-295/03, Poli Sud v/ Commission ; OJ C 264/34, 1/11/2003 

–  T-297/03, Tomasetto Achille SAS di Tomasetto Andrea & C. v/ Commission ; OJ 

C 264/34, 1/11/2003 

–  T-298/03,  Lavorazione  cuoio  e  pelle  BieffeSrl  v/  Commission ;  OJ  C  264/35, 

1/11/2003 

–  T-299/03 Nuova FA.U.DI Srl v/ Commission, OJ C 264/35, 1/11/2003 

–  Case  T-296/03  PROTECO  SRL  v/  Commission  has  been  removed  following  the 
withdrawal of the application (see JO C 264/34, 1/11/2003; removal OJ C 71/44, 
20/3/2004). 

In addition, the Commission intervened in support of the Council's conclusions in the 
case T-84/03 Maurizio Turco v. Council, OJ C 112/38, 10/5/2003. 

16 

 
 
  
 
ANNEX 

Statistics concerning the handling of requests for access 

INITIAL REQUESTS 

1. 

Number of initial requests 

2002 

991 

2003 

1 523 

2. 

Number of identifiable documents taken into consideration 

2002 

2 150 

2003 

2 936 

3. 

Number of initial requests for which partial access was granted 

2002 

44 

2003 

64 

4. 

Percentage rate of positive replies during the initial stage 

2002 

Complete access: 

Partial access: 

Total: 

66.5% 

2003 

66.83% 

2.48% 

69.31% 

17 

 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
CONFIRMATORY REQUESTS   

5. 

Number of confirmatory requests 

2002 

96 

2003 

143 

6. 

Breakdown of decisions on confirmatory requests (%) 

Confirmation of the initial decision: 

Partial revision: 

Complete revision: 

2002 

66.9% 

9.2% 

23.9% 

7. 

Rate of positive replies for the procedure as a whole 

Complete access: 

Partial access: 

Total: 

2002 

62.4% 

8.3% 

70.7% 

2003 

61.57% 

8.29% 

30.13% 

2003 

69.5% 

3.32% 

72.82% 

18 

 
 
  
 
 
 
 
 
 
 
 
 
BREAKDOWN OF REQUESTS 

8. 

According to professional profile of requesters (%) 

Members of the public whose 
professional profile was not indicated: 

Civil society (interest groups. 
industry, NGOs. etc.): 

Lawyers: 

Academia: 

Other institutions: 

Public authorities (other than the EU 
institutions): 

2002 

31.8% 

2003 

30.16% 

17.8% 

23.48% 

22.4% 

12.3% 

3.1% 

8.6% 

20.46% 

11.15% 

6.16% 

5.57% 

Journalists: 

3.8% 

3.02% 

19 

 
 
  
 
 
 
 
 
9. 

According to geographical origin (%) 

Belgium: 

Geographical origin unknown: 

Germany: 

Italy: 

United Kingdom: 

France: 

Netherlands: 

Spain: 

Denmark: 

Greece: 

Ireland: 

Sweden: 

Luxembourg: 

Austria: 

Portugal: 

Finland: 

European countries outside the EU: 

Candidate countries: 

European countries outside the EU 
and candidate countries: 

2002 

23% 

12.3% 

10.9% 

9.6% 

8.8% 

10.3% 

6.4% 

5.4% 

1.6% 

1.2% 

2% 

1.3% 

0.4% 

2.1% 

1.2% 

0.5% 

1.7% 

- 

- 

2003 

25.05% 

12.59% 

12% 

8.85% 

7.87% 

7.80% 

6.30% 

5.25% 

2.36% 

1.97% 

1.38% 

1.18% 

1.11% 

0.98% 

0.59% 

0.59% 

- 

2.14% 

0.93% 

Non-European countries: 

1.3% 

0.99% 

20 

 
 
  
 
 
 
10. 

According to areas of interest (%) 

Competition 

Taxation and customs union 

Secretariat-General 

Internal market 

Environment 

Agriculture 

Health and consumer protection 

Transport and energy 

Employment and social affairs 

Enterprise policy 

Budget and financial control 

Justice and home affairs 

Legal questions 

Fraud prevention 

Administration and personnel 

External aid and development 

External relations 

Regional policy 

External trade 

Research and technology 

Economic and financial affairs 

Enlargement of the EU 

Education and culture 

Press and communication 

Fisheries 

21 

2002 

12.7% 

10.6% 

15.9% 

10.3% 

6.2% 

4.8% 

4.4% 

2.9% 

3.2% 

3.9% 

2.9% 

2.2% 

3% 

2.4% 

3.2% 

0.9% 

2.1% 

0.8% 

1.1% 

1.7% 

1.1% 

1% 

0.5% 

0.8% 

0.6% 

2003 

13.7% 

10.82% 

10.62% 

8.79% 

7.41% 

4.59% 

4% 

3.54% 

3.48% 

3.08% 

2.82% 

2.3% 

2.3% 

2.23% 

3.21% 

2.56% 

2.16% 

2.16% 

2.03% 

1.97% 

1.57% 

1.25% 

1.18% 

1.05% 

0.72% 

 
 
  
 
 
Statistics 

Official publications 

Interpreting and translation 

0.1% 

- 

0.8% 

0.39% 

0.07% 

- 

22 

 
 
  
 
 
BREAKDOWN OF REFUSALS OF ACCESS ACCORDING TO THE EXCEPTION APPLIED  

11. 

Initial requests (%) 

Public security: 

Defence and military matters: 

International relations: 

Financial, monetary or economic 
policy: 

Personal data: 

Commercial interests: 

Court proceedings and legal advice: 

2002 

- 

0.46% 

1.8% 

0.46% 

5.2% 

3.7% 

3.7% 

Inspections, investigations and audits: 

35.9% 

Protection of the decision-making 
process: 

Confidentiality requested by the 
Member State from which the 
document originates: 

No reply or insufficient cause: 

Application of several exceptions (see 
note below) 

8.6% 

2.1% 

19.6% 

18.4% 

2003 

0.21% 

0.31% 

5.33% 

1.05% 

4.39% 

8.89% 

9% 

37.55% 

11.82% 

9.10% 

5.96% 

6.07% 

Not applicable 

Note: 

In the table relating to 2002, the cases in which several exceptions were 
applied  are  not  included  in  the  breakdown  according  to  the  exception 
applied; in the table for 2003, all the exceptions are identified. 

23 

 
 
  
 
 
 
 
12. 

Confirmatory requests (%) 

2002 

2003 

Public security: 

Defence and military matters: 

International relations: 

Financial, monetary or economic 
policy: 

Personal data: 

Commercial interests: 

Court proceedings and legal advice: 

- 

- 

7.2% 

- 

0.6% 

3.3% 

4.4% 

Inspections, investigations and audits: 

29.4% 

Protection of the decision-making 
process: 

Confidentiality requested by the 
Member State from which the 
document originates: 

1.6% 

4.4% 

- 

- 

7.76% 

- 

6.85% 

11.87% 

14.61% 

30.14% 

3.65% 

14.61% 

10.5% 

Application of several exceptions (see 
note above): 

48.9% 

Not applicable 

24