Decision No 12/2005 of the Court of Auditors of the European Communities of 10 March 2005 regarding public access to Court 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

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IV

(Notices)

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

COURT OF AUDITORS

Decision No 12/2005 (1) of the Court of Auditors of the European Communities of 10 March 2005
regarding public access to Court documents

(2009/C 67/01)

THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES,

Having regard to its Rules of Procedure (2), and in particular
Article 30 thereof,

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 (6) 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;

regard

Euratom)
to Council Regulation
Having
No 1605/2002 on the Financial Regulation applicable to the gen-
eral budget of the European Communities (3), and in particular
Articles 143(2) and 144(1) thereof,

(EC,

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;

Whereas:

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;

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,

Joint Declaration (4)

in the
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 (5), 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;

(1) As amended by Decision No 14/2009, adopted by the Court at its

meeting of 5 February 2009.

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

HAS DECIDED AS FOLLOWS:

Article 1

Purpose

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

(6) OJ C 295, 23.9.1998, p. 1.

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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, subject to the principles, conditions and limits
defined in this Decision.

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

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

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

In accordance with the rules governing confidentiality laid
2.
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 shall refuse access to its audit observations. It may also
refuse access to documents used in the preparation of those
observations.

The Court shall refuse access to a document where disclo-

3.
sure would undermine the protection of:

— commercial interests of a natural or legal person, including

intellectual property,

— court proceedings and legal advice,

— inspections, investigations and audits.

Article 3

Definitions

4.
Access to a document, drawn up by the Court 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 docu-
ment would compromise the Court’s decision-making process.

For the purpose of this Decision:

(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.

Article 4

Exceptions

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

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

The Court shall refuse access to a document where disclo-

1.
sure would undermine the protection of:

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.

(a)

the public interest including:

— public security,

— defence and military matters,

— international relations,

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 (7).

— 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.

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

(7) Council Regulation (EEC, Euratom) No 354/83) amended by Council
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 to reply within the prescribed time-

2.
limit shall also entitle the applicant to ask for reconsideration.

Applications for access to a document must be made in writ-
ing (8), either in hard copy or electronically, in one of the lan-
guages referred to in Article 314 of the EC Treaty (9) and in a
sufficiently precise manner to enable the Court to identify the
document. The applicant is not obliged to state reasons for the
application.

Article 6

Processing of initial applications

Applications for access to documents shall be dealt with by
1.
the Director of Audit Support and Communication. 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 Audit Support and Communication 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.

An application for access to a document shall be handled
3.
promptly. Within 15 working days from registration of the appli-
cation, the Court 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 and
inform the applicant of his or her right to ask the Court to recon-
sider its position in accordance with Article 7.

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

Article 7

Reconsideration

Article 8

Processing of requests for reconsideration

Requests for reconsideration shall be submitted to the Presi-
1.
dent of the Court. According to the subject matter concerned, the
President of the Court shall consult the Member concerned or the
Secretary-General and, where necessary, may consult either the
Legal Service or the Data Protection 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 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 shall inform the applicant of the
remedies open to him or her, namely instituting court proceed-
ings against the Court and/or making a complaint to the Ombuds-
man, under the conditions laid down in Articles 230 and 195 of
the EC Treaty, respectively.

3.
In exceptional cases, for example in the event of an appli-
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 that reasons are given.

Failure by the Court to reply within the prescribed time
4.
limit shall be considered as a negative reply and entitle the appli-
cant 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
has granted access either at the premises of the Court in Luxem-
bourg or by receiving a copy, including, where available, an elec-
tronic copy. In the first case, the date and time of consultation
shall be agreed between the applicant and the Director of Audit
Support and Communication.

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

(8) Addressed to the European Court of Auditors, Director of Audit Sup-
port and Communication, 12, rue Alcide De Gasperi, L-1615 Lux-
embourg. Fax (+352) 43 93 42, e-mail euraud@eca.europa.eu
(9) Currently: Bulgarian, Czech, Danish, Dutch, English, Estonian, Finn-
ish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithua-
nian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian,
Spanish and Swedish.

2.
The cost of producing and sending copies may be charged
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 form shall
be free of charge.

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

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Documents shall be supplied in an existing version and for-
4.
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 10

Reproduction of documents

1.
Documents released in accordance with this Decision shall
not be reproduced or exploited for commercial purposes without
the Court’s 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.

Article 11

Final provisions

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

1.
ary 1997 is hereby repealed.

This Decision shall be published in the Official Journal of the

2.
European Union.

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

3.
lowing its adoption.

Done at Luxembourg, 10 March 2005.

For the Court of Auditors
Hubert WEBER
President