Report from the Commission on the application in 2004 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents {SEC(2005) 1025}
Date: 2005-07-29
Institutions: European Commission
Subjects: Council of the European Union, European Commission, European Parliament, access to EU information, activity report, provision of documents

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.07.2005 
COM(2005) 348 final 

REPORT FROM THE COMMISSION 

on the application in 2004 of Regulation (EC) No 1049/2001 of the European Parliament 
and of the Council regarding public access to European Parliament, Council and 
Commission documents 

{SEC(2005) 1025} 

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FOREWORD 

Article 17(1)  of  Regulation  (EC)  No 1049/2001  regarding  public  access  to  European 
Parliament,  Council  and  Commission  documents1,  applicable  since  3  December  2001, 
stipulates  that  each  institution  must  publish  a  report  for  the  preceding  year  including  the 
number of cases in which the institution refused to grant access to documents, the reasons for 
such refusals and the number of sensitive documents not recorded in the register. 

This  report,  which  covers  2004,  is  the  third  report  presented  by  the  Commission  under  that 
Article. 

The Annex to the report contains statistics relating to the processing of requests for access. A 
series of tables gives the figures for the three years the Regulation has been in force, thereby 
making  it  possible  to  monitor  implementation.  It  should  be  emphasised  that  the  statistics 
relate  solely  to  requests  for  access  to  unpublished  documents  and  do  not  include  orders  for 
documents already published or requests for information.  

The  Annex  also  contains  a  detailed  analysis  of  requests  for  access  and  application  of  the 
exceptions rule as well as an overview of the complaints made to the Ombudsman and legal 
action. 

1 

OJ L 145, 31.5.2001, p. 43. 

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1. 

SPECIFIC MEASURES RELATING TO APPLICATION OF THE REGULATION 

1.1. 

1.2. 

1.3. 

On 30 January 2004 the Commission adopted the report on the implementation of the 
principles of the Regulation provided for by Article 17(2). 

On  1  October  2003  the  scope  of  the  Regulation  was  extended  to  Community 
agencies  in  existence  on  that  date,  which  adopted  the  rules  for  implementing  it  in 
2004.  The  plan  is  to  apply  the  Regulation  systematically  to  newly  established 
agencies under a provision of the basic act. 

The  proposal  for  a  Parliament  and  Council  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 bodies2 has been voted on by the European Parliament (first reading) and agreed 
by the Council. 

2. 

INFORMATION FOR THE PUBLIC 

2.1. 

2.2. 

2.3. 

2.4. 

Following  enlargement  of  the  European  Union  on  1  May  2004,  the  Commission 
register  of  internal  documents  was  adapted  to  cover  the  twenty  official  languages. 
Final COM documents as well as agendas and minutes of Commission meetings are 
directly accessible in full. Technical work has continued with a view to adapting the 
register to make other document series accessible.  

Since December 2003 a specific register covering the work of the committees which 
assist the Commission in the exercise of its implementing powers complements the 
internal  document  register.  It  covers  documents  on  committee  proceedings 
transmitted to the European Parliament under the "comitology" Decision3. 

In  2004  the  Openness  and  access  to  documents  site  on  the  EUROPA  server 
registered  a  total  of  1 384 108  consultations,  calculated  on  the  number  of  screens 
displayed, i.e. an average per month of 115 342 consultations, or 5 250 per working 
day - a threefold increase over 2003. 

The  brochure  covering  the  three  institutions  published  in  the  eleven  Community 
languages  at  the  time4  has  now  been  translated  into  the  nine  new  Community 
languages.  These  brochures  will  be  available  in  representations,  delegations,  relays 
and networks.  

2.5. 

The three institutions continued with the feasibility study relating to the creation of 
an information tool in the area of justice, freedom and security. 

2 
3 

4 

COM (2003) 622 final. 
Council  Decision  1999/468/EC  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). 
Catalogue number KA-41-01-187-FR-C ISBN 92-894-1904-0 

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3. 

COOPERATION WITH THE OTHER INSTITUTIONS AND THE MEMBER STATES 

3.1. 

3.2. 

The interinstitutional committee provided for in Article 15(2) of the Regulation did 
not  meet  at  political  level  in  2004.  However,  the  services  responsible  for 
implementing  Regulation  1049/2001  in  the  Secretariats-General  of  the  European 
Parliament, the Council and the Commission continued to exchange information and 
experiences in order to identify best practices and to ensure that the Regulation was 
being applied consistently.  

On 25 and 26 November 2004 the Dutch Presidency organised a second conference 
on  transparency  in  Europe  in  The  Hague  for  the  purpose  of  reviewing  for  the  first 
time how Regulation 1049/2001 was being applied at the time of accession of the ten 
new Member States. 

4. 

ANALYSIS OF REQUESTS FOR ACCESS 

4.1. 

The  continuing  increase  in  the  number  of  requests  for  access  since  the  Regulation 
was adopted was repeated last year: 

–  between 2002 and 2003, the number of initial requests rose from 991 to 1 523, i.e. 

an increase of 53.7%; 

–  in  2004,  2600  initial  requests  were  recorded,  i.e.  1077  more  than  in  2003,  or  an 

increase of 70.72%. 

4.2. 

The increase in confirmatory requests was less marked: 

–  between  2002  and  2003,  the  number  rose  from  96  to  143,  i.e.  an  increase  of 

48.96%; 

–  in 2004, the number of confirmatory applications rose to 162, i.e. 19 more than in 

2003, or an increase of 13.29%.  

4.3. 

4.4. 

4.5. 

The  breakdown  by  area  of  interest  remained  more  or  less  the  same  as  in  previous 
years.  Competition,  customs,  indirect  taxation,  the  internal  market  and  the 
environment  continue  to  rouse  most  interest,  accounting  for  approximately  40%  of 
requests.  

The breakdown by socio-professional category did not change significantly. Various 
interest groups, NGOs and companies accounted for over a quarter of the requests. 

More  than  a  quarter  of  the  requests  (26.42%)  came  from  persons  or  bodies 
established in Belgium, because of the number of multinational companies, law firms 
and  associations  or  NGOs  operating  at  European  level  with  an  office  in  Brussels. 
Moreover, the majority of requests (over half) came from Germany, Italy, France, the 
United Kingdom, Spain and the Netherlands. The percentage from the new Member 
States remains low (4.31%).  

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5. 

EXCEPTIONS TO THE RIGHT OF ACCESS 

5.1. 

The percentage of positive replies in the initial request stage is roughly the same as in 
2003,  with  a  slight  drop  from  69.31%  to  68.19%.  In  64.8%  of  cases  the  whole 
document  was  disclosed,  and  in  3.39%  of  cases  requesters  were  granted  partial 
access. 

The percentage of positive replies does not include the large number of requests for 
access  to  documents  which  had  already  been  disclosed  (close  to  one  in  five). 
Moreover,  it  should  be  noted  that,  in  approximately  2%  of  cases,  the  document  in 
question did not exist. 

5.2. 

The  percentage  of  confirmations  of  initial  decisions  increased  significantly  from 
61.57% to 73.21% of cases. 

The percentage of totally positive replies after an initial refusal fell from 30.13% to 
9.09%.  The  percentage  of  decisions  granting  partial  access  after  an  initial  refusal 
more than doubled, from 8.29% to 17.7%.  

Following completion of the process for handling requests, the rate of positive replies 
stands  at  70%  (compared  with  72.82%  in  2003);  in  65.45%  of  cases  the  whole 
document was disclosed, and in 4.58% of cases partial access was granted.  

5.3. 

At  the  initial  stage,  the  main  reason  for  refusal  was  to  protect  the  purpose  of 
inspections,  investigations  and  audits  (third  indent  of  Article 4(2)),  though  the 
percentage of refusals on those grounds fell slightly from 37.55% to 31.81%. These 
mostly involved requests for access to letters of formal notice, reasoned opinions or 
other documents relating to infringement procedures which had not yet been closed 
or documents relating to investigations concerning competition policy. 

The  second  reason  for  refusal  was 
the  Commission’s 
decision-making  process  (Article 4(3)).  The  percentage  of  refusals  based  on  this 
exception went up from 20.92% to 25.44%.  

the  protection  of 

5.4. 

The  main  reasons  for  confirming  refusal  of  access  were  the  same  as  for  the  initial 
stage: 

–  protection of the purpose of investigations (26.32 %);  

–  protection of the decision-making process (21.75 %).  

It should be pointed out that the protection of commercial interests was the basis of a 
significantly  bigger  number  of  refusals  at  the  confirmatory  stage  than  in  2003,  up 
from  11.87%  to  15.79%.  This  exception  was  clearly  invoked  more  at  the 
confirmatory stage than at the initial stage (8.33%). 

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6. 

COMPLAINTS SUBMITTED TO THE EUROPEAN OMBUDSMAN 

6.1. 

In 2004 the Ombudsman closed thirteen complaints against the Commission relating 
to refusals to disclose documents. In five cases the Ombudsman concluded that there 
was no evidence of maladministration. In five other cases, an amicable solution had 
been  found  or  the  dispute  settled  in  mid-procedure.  The  Ombudsman  made  critical 
remarks in the case of three complaints. 

6.2. 

Eleven new complaints were made to the Ombudsman in 2004. Four of them related 
to  refusals  to  disclose  documents  established  or  received  under  an  infringement 
procedure (formal notice, reasoned opinions, replies by the Member States). 

7. 

LEGAL ACTION 

7.1. 

The Court of First Instance handed down two judgments rejecting an appeal against a 
decision refusing to disclose a document. In a third case annulment by the Court of 
Justice of a Court of First Instance judgment resulted in the annulment of a negative 
decision by the Council and the Commission: 

–  T-84/03, 23.11.2004, Turco v Council 

–  T-168/02, 30.11.2004, Internationaler Tierschutzfonds v Commission 

–  C-353/01, 22.01.2004, P Mattila v Council and Commission 

7.2. 

Nine  new  actions  were  lodged  in  2004  against  Commission  decisions  under 
Regulation 1049/2001: 

–  T-36/04 International Press Association v Commission 

–  T-194/04 Bavarian Lager v Commission 

–  T-446/04 Co-Frutta v Commission 

–  T-70/04 Franchet-Byk v Commission 

–  T-319/04 Port Support Customs Agency v Commission 

–  T-380/04 Terezakis v Commission 

–  T-237/04 Ultradent v Commission 

–  T-284/04 UPS v Commission 

–  T-161/04 Valero Jordana v Commission 

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8. 

CONCLUSIONS 

The  growing  public  interest  in  accessing  unpublished  Commission  documents  was 
confirmed  in  2004.  As  in  previous  years,  applications  were  made  largely  by 
companies, NGOs, law firms and various interest groups (over 40%). 

The general picture which emerges from the analysis of requests is that a significant 
proportion  of  them  relate  to  Commission  activities  regarding  the  monitoring  of 
Community  law.  In  many  cases,  the  purpose  is  to  obtain  documents  which  could 
support the requester's position in connection with a complaint, relating for example 
to a presumed infringement of Community law, or an administrative or legal appeal. 
These requests generally involve a substantial volume of documents and examining 
them entails considerable administrative work. 

The  reasons  most  frequently  given  for  refusal  are  the  protection  of  the  following 
interests:  purpose  of  investigations,  commercial  interests  of  companies  and  the 
Commission's  decision-making  process.  This  last  exception  is  invoked  more  to 
protect the taking of individual decisions than the legislative process, where the trend 
is to make more and more documents public without waiting for requests for access. 

The number of complaints presented to the Ombudsman under Regulation 1049/2001 
remains  stable  despite  the  increase  in  the  number  of  requests  for  access.  In  most 
cases, either the Ombudsman concluded that there had been no maladministration or 
the case was settled to the satisfaction of the complainant. 

The Court of First Instance confirmed its  interpretation  of the  exception  relating to 
the  right  of  the  Member  States  to  oppose  disclosure  of  documents  transmitted  by 
them to the Commission. 

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