Decision No 12-2005 of the Court of Auditors of the European Communities of 10 March 2005 regarding public access to Court of Auditors documents
Date: 2005-03-10
Institutions: European Court of Auditors
Subjects: European Court of Auditors, access to EU information, dissemination of EU information, provision of documents

20.4.2005

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Official Journal of the European Union

C 96/1

I

(Information)

COURT OF AUDITORS

DECISION No 12-2005
of 10 March 2005
regarding public access to Court of Auditors documents

(2005/C 96/01)

THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES,

Having regard to its Rules of Procedure (1), and in particular
Article 30 thereof,

Openness enhances the administration’s legitimacy, effectiveness
and accountability, thus strengthening the principles of democ-
racy. To that end good administrative practice on access to docu-
ments should be promoted.

Having regard to Council Regulation (EC, Euratom) No
1605/2002 on the Financial Regulation applicable to the general
budget of the European Communities (2), and in particular
Articles 143(2) and 144(1) thereof,

However, certain public and private interests should be protected
by way of exceptions to the principle of public access to docu-
ments. In particular international auditing standards concerning
the confidential nature of audit information must be duly
respected,

Whereas:

HAS DECIDED AS FOLLOWS:

The second subparagraph of Article 1 of the Treaty on European
Union enshrines the concept of openness, stating that the Treaty
marks a new stage in the process of creating an ever closer union
among the peoples of Europe, in which decisions are taken as
openly as possible and as closely as possible to the citizen.

In the Joint Declaration (3) relating to 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 (4), the European Parlia-
ment, the Council and the Commission call on the other institu-
tions to adopt internal rules on public access to documents which
take account of the principles and limits set out in that Regulation.

The provisions laid down in Decision No 18/97 of the Court of
Auditors laying down internal rules for the treatment of applica-
tions for access to documents held by the Court (5) antedate
Regulation (EC) No 1049/2001 and should be revised in the light
of that Regulation and of the case-law of the European Court of
Justice and the Court of First Instance.

(1) OJ L 18, 20.1.2005, p. 1
(2) OJ L 248, 16.9.2002, p. 1.
(3) OJ L 173, 27.6.2001, p. 5.
(4) OJ L 145, 31.5.2001, p. 43.
(5) OJ C 295, 23.9.1998, p. 1.

Article 1

Purpose

The purpose of this Decision is to define the conditions, limits
and procedures under which the Court of Auditors shall give pub-
lic access to documents which it holds.

Article 2

Beneficiaries and scope

1. Within the framework and limits of the provisions laid
down in this Decision and of international standards governing
the confidentiality of audit information, any citizen of the Union
and any other natural or legal person residing or having its reg-
istered office in a Member State, has a right of access to docu-
ments of the Court of Auditors, subject to the principles, condi-
tions and limits defined in this Decision.

2.
The Court of Auditors may, subject to the same principles,
conditions and limits, grant access to documents to any natural
or legal person not residing or not having its registered office in a
Member State.

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This Decision shall apply to all documents held by the Court
3.
of Auditors, that is to say, documents drawn up or received by it
and in its possession.

The Court of Auditors shall refuse access to a document

3.
where disclosure would undermine the protection of:

This Decision shall be without prejudice to rights of public
4.
access to documents held by the Court of Auditors which might
follow from instruments of international law or Community acts
implementing them.

— commercial interests of a natural or legal person, including

intellectual property,

Article 3

Definitions

— court proceedings and legal advice,

For the purpose of this Decision:

— inspections, investigations and audits.

(a)

(b)

‘document’ shall mean any content, whatever its medium
(written on paper or stored in electronic form or as a sound,
visual or audiovisual recording);

‘third party’ shall mean any natural or legal person, or any
entity outside the Court of Auditors, including the Member
States, other Community or non-Community institutions
and bodies and third countries.

Access to a document, drawn up by the Court of Auditors
4.
for internal use or received by it, which relates to a matter where
the decision has not yet been taken shall be refused if disclosure
of the document would compromise the Court of Auditors’
decision-making process.

Article 4

Exceptions

Access to a document containing opinions for internal use as part
of deliberations and preliminary consultations within the Court of
Auditors shall be refused even after the decision concerned has
been taken if disclosure of the document would compromise the
Court of Auditors’ decision-making process.

The Court of Auditors shall refuse access to a document

1.
where disclosure would undermine the protection of:

(a)

the public interest including:

— public security,

— defence and military matters,

— international relations,

— the financial, monetary or economic policy of the Com-

munity or a Member State;

(b) privacy and integrity of the individual, in particular in accor-
dance with Community legislation regarding the protection
of personal data.

2.
In accordance with the rules governing confidentiality laid
down in Articles 143(2) and 144(1) of Council Regulation (EC,
Euratom) No 1605/2002 on the Financial Regulation applicable
to the general budget of the European Communities and in cor-
responding provisions in other instruments of Community law,
the Court of Auditors shall refuse access to its audit observations.
It may also refuse access to documents used in the preparation of
those observations.

5.
If the application concerns a document held by the Court of
Auditors but of which the Court is not the author, the Court of
Auditors shall confirm receipt of the application and supply the
name of the person, institution or body to whom the application
must be addressed.

6.
If only parts of the requested document are covered by any
of the exceptions in this Article, the remaining parts of the docu-
ment shall be released.

7.
The exceptions in this Article shall apply without prejudice
to the provisions on public access to the Communities’ historical
archives laid down in Council Regulation (EEC, Euratom) No
354/83 (1).

8.
Notwithstanding the exceptions set out in this Article, the
Court of Auditors may decide to allow access to a document, in
whole or in part, where there is an overriding public interest in
its disclosure.

(1) Council Regulation (EEC, Euratom) No 354/83 as amended by Coun-
cil Regulation (EC, Euratom) No 1700/2003 (OJ L 243, 27.9.2003,
p. 1).

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Article 5

Applications

Failure by the Court of Auditors to reply within the pre-
2.
scribed time limit shall also entitle the applicant to ask for
reconsideration.

Applications for access to a document must be made in writ-
ing (1), either in hard copy or electronically, in one of the lan-
guages referred to in Article 314 of the EC Treaty (2) and in a suf-
ficiently precise manner to enable the Court of Auditors to
identify the document. The applicant is not obliged to state rea-
sons for the application.

Article 6

Processing of initial applications

Applications for access to documents shall be dealt with by
1.
the Director of the External Relations Department. He shall send
an acknowledgement of receipt to the applicant, examine the
application and decide what action shall be taken.

2.
According to the subject matter of the application, the
Director of the External Relations Department shall inform and,
where necessary, consult the Member concerned, the Secretary-
General, the Legal Service or the Data Protection Officer before
deciding whether the document requested should be released.

3.
An application for access to a document shall be handled
promptly. Within 15 working days from registration of the appli-
cation, the Court of Auditors shall either grant access to the docu-
ment requested and provide access in accordance with Article 9
or, in a written reply, state the reasons for the total or partial
refusal and inform the applicant of his or her right to ask the
Court to reconsider its position in accordance with Article 7.

4.
In the event of an application relating to a very long docu-
ment or to a very large number of documents, the Court of Audi-
tors may confer with the applicant informally, with a view to
finding an appropriate solution. In such cases, the time limit pro-
vided for in paragraph 3 may be extended by 15 working days,
provided that the applicant is notified in advance and that rea-
sons are given.

Article 7

Reconsideration

In the event of a total or partial refusal, the applicant may,
1.
within 15 working days of receiving the Court of Auditors’ reply,
ask the Court to reconsider its position.

Article 8

Processing of requests for reconsideration

1.
Requests for reconsideration shall be submitted to the Presi-
dent of the Court of Auditors. According to the subject matter
concerned, the President of the Court of Auditors shall consult-
the Member concerned or the Secretary-General and, where nec-
essary, may consult either the Legal Service or the Data Protec-
tion Officer before deciding whether the document requested
should be released.

2.
A request for reconsideration shall be handled promptly.
Within 15 working days from registration of such a request, the
Court of Auditors shall either grant access to the document
requested and provide access in accordance with Article 9 or, in a
written reply, state the reasons for the total or partial refusal. In
the event of a total or partial refusal, the Court of Auditors shall
inform the applicant of the remedies open to him or her, namely
instituting court proceedings against the Court of Auditors and/or
making a complaint to the Ombudsman, under the conditions
laid down in Articles 230 and 195 of the EC Treaty, respectively.

In exceptional cases, for example in the event of an appli-
3.
cation relating to a very long document or to a very large num-
ber of documents, the time limit provided for in paragraph 2 may
be extended by 15 working days, provided that the applicant is
notified in advance and thatreasons are given.

4.
Failure by the Court of Auditors to reply within the pre-
scribed time limit shall be considered as a negative reply and
entitle the applicant to have recourse to the remedies referred to
in paragraph 2.

Article 9

Access following an application

1.
The applicant may consult documents to which the Court
of Auditors has granted access either at the premises of the Court
of Auditors in Luxembourg or by receiving a copy, including,
where available, an electronic copy. In the first case, the date and
time of consultation shall be agreed between the applicant and
the Director of the External Relations Department.

(1) Adressed to the European Court of Auditors, Director of the External
Relations Department, 12, rue Alcide de Gasperi, L-1615 Luxem-
bourg. Fax (352) 439 342, e-mail: Euraud@eca.eu.int.

(2) Currently: Czech, Danish, Dutch, English, Estonian, Finnish, French,
German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese,
Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish.

The cost of producing and sending copies may be charged
2.
to the applicant. This charge shall not exceed the real cost of pro-
ducing and sending the copies. Consultation on the spot, copies
of less than 20 A4 pages and direct access in electronic formshall
be free of charge.

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If a document is publicly accessible, the Court of Auditors
3.
may fulfil its obligation of granting access to the requested docu-
ment by informing the applicant how to obtain it.

4.
Documents shall be supplied in an existing version and for-
mat (including electronically or in an alternative format) with
regard to the applicant’s preference. The Court is not obliged to
create a new document or to compile information at the request
of the applicant.

Article 11

Final provisions

Decision No 18/97 of the Court of Auditors of 20 Febru-

1.
ary 1997 is repealed.

This Decision shall be published in the Official Journal of the

2.
European Union.

Article 10

Reproduction of documents

It shall enter into force on the first day of the month fol-

3.
lowing its adoption.

1.
Documents released in accordance with this Decision shall
not be reproduced or exploited for commercial purposes without
the Court of Auditors’ prior written authorisation.

This Decision shall be without prejudice to any existing
2.
rules on copyright which may limit a third party’s right to repro-
duce or exploit released documents.

Done at Luxembourg, 10 March 2005.

For the Court of Auditors

Hubert WEBER

President