Dear Mr B.,

On 16 February 2005, you made a complaint to the European Ombudsman concerning the European Commission's refusal to give you access to its Second Submission in the WTO panel case DS291-3.

On 22 March 2005, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 15 July 2005. I forwarded it to you with an invitation to make observations, which you sent on 11 October 2005.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complaint concerns the Commission's refusal to release a document (the 'Second Submission') related to a dispute resolution procedure before a panel of the World Trade Organisation's Dispute Settlement Body. This panel dealt with a dispute between the European Community and the United States and others (WT/DS 291, 292, 293).

The Second Submission contained "the defence strategy and the arguments of the Commission's position on this particularly sensitive issue", that is, a dispute concerning trade in genetically modified organisms ("GMOs"). This dispute arose out of a complaint by the United States and others in connection with the European Community's approach to the commercialisation of biotechnology (GMOs). The complainant stressed that the case has generated considerable public interest.

The complainant originally asked the Commission for access to its Second Submission in August 2004. The Commission informed the complainant that he could not receive a copy of it and stated that it is normal practice to publish such documents only at the second hearing stage of the procedure before the panel (the date of the second meeting was then unknown). The second hearing was subsequently fixed for 21-22 February 2005.

On 4 August 2004, the complainant submitted a formal application for access to the Second Submission. The Commission replied on 20 August, stating that, due to the summer vacation, it needed an extra 15 days to respond.

In a letter dated 16 September 2004, the Commission relied on Article 4(2), second indent, of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents(1) ("Regulation 1049/2001") to refuse the complainant access to the document (the institutions shall refuse access to a document "where disclosure would undermine the protection of: [...] court proceedings and legal advice").

On 29 September 2004, the complainant submitted a confirmatory application to the Secretary-General. The complainant received a reply on 27 October stating that the Commission needed an extra 15 days to properly examine the application. The Secretary-General sent the complainant a letter dated 19 November 2004 confirming the Commission's initial refusal of access.

The Secretary-General again relied on the provisions of Article 4(2), second indent, stating that the procedure before the WTO panel could be 'assimilated to' court proceedings. The Secretary-General concluded that there was no "overriding public interest" in disclosure.

The complainant argued in his complaint (i) that Article 4(2), second indent, does not apply to disputes before panels of the WTO Dispute Settlement Body (these not being court proceedings); (ii) that, without prejudice to the foregoing, the disclosure of the document requested would not undermine the protection of those proceedings; (iii) that, without prejudice to the foregoing, there is an overriding public interest in disclosure. More specifically, the complainant made, in summary, the following arguments and points:

Article 4(2), second indent, applies only to 'court proceedings'. There are no court proceedings in this case. The relevant proceedings concern a dispute between a number of members of the WTO before the WTO dispute panel. The dispute panel is not a court because:

1. the panel is not presided over by judges, but "composed of well-qualified governmental and/or non-governmental individuals, including persons who have served on or presented a case to a panel, served as a representative of a Member or of a contracting party to GATT 1947 or as a representative to the Council or Committee of any covered agreement or its predecessor agreement, or in the Secretariat, taught or published on international trade law or policy, or served as a senior trade policy official of a Member”(2);
2. unlike court proceedings, the panel report is an interim stage in a process which is ultimately decided by the Dispute Settlement Body which is made up of political figures from WTO member states rather than lawyers;
3. by contrast with a court, the parties before a WTO panel enjoy a pre-eminent role in the selection of panelists; it is a fundamental principle of courts of law that the parties are not involved in the selection of judges.
4. all WTO Members have a right to object to a panel report; in a court, no person has a right to object to the findings of the court other than those involved in the proceedings; even then, such a right is limited to a right of appeal;
5. the parties have a right to make representations in response to the interim draft of the panel report(3); such a procedure is not comparable to the procedures of any court.

In addition, it has to be emphasised that the Secretary-General had not argued that the panel is a court as such, but that the “dispute settlement procedure has to be assimilated to court proceedings within the meaning of Article 4(2).” No real reason is given for this interpretation, which is manifestly incorrect.

Regulation 1049/2001 confers important fundamental rights on the citizens of the European Union and any limitations on those rights must be interpreted strictly and proportionately. This the Secretary-General had failed to do.

Even if the above arguments are deemed to be ill-founded and the procedures of the WTO panel were to be considered 'court proceedings' within Regulation 1049/2001, disclosure of the Second Submission would not "undermine the protection of those 'court proceedings'".

Even if the above arguments were deemed to be ill-founded, this is a case in which there is an overriding public interest in disclosure and the document should therefore be released. There is probably no other greater “overriding public interest” than human and environmental safety and it is vital that all the facts are made available to both the public and the Member States.

In summary, the complainant alleged in its complaint to the Ombudsman that the Commission has breached Regulation 1049/2001 by refusing to give access to its Second Submission in the WTO panel case DS291-3.

The complainant claimed that, in the future, all the Commission's submissions in WTO disputes should, in the absence of clear overriding reasons, be published at the same time as they are filed with the WTO panel.

THE INQUIRY

The Commission made, in summary, the following comments on the complaint:

The Second Submission referred to by the complainant had been drawn up by the Commission solely for the purpose of the specific dispute settlement case and it contained the defence strategy and the Community's position on particularly sensitive issues, such as the state of play as regards the notification procedures for specific GMOs. The Commission considered that the WTO dispute settlement procedure had to be assimilated to court proceedings within the meaning of Article 4(2), second indent, of Regulation 1049/2001.

The complainant contests, in the first place, the argument that proceedings before the WTO Panel can be compared to court proceedings in the sense of Article 4(2), second indent, of Regulation 1049/2001. In doing so, he tries to distinguish WTO panel proceedings from court proceedings by examining certain particularities of panel proceedings. This approach is misconceived because it fails to recognise that the essential function of panel proceedings is precisely the same as that of court proceedings - that is, it is a rules-based third-party adjudication process, the results of which have to be respected by the parties.

In any event, the complainant's points are all unfounded for the following reasons(4):

He submits that a panel is composed of well-qualified governmental and/or non-governmental individuals, rather than composed of judges (cf. Article 8 of the Understanding on Rules and Procedures governing the Settlement of Disputes(5), "DSU"). The Commission fails to see why this characteristic of panel proceedings should disqualify them from being assimilated to court proceedings. In any case, individual panel members, just like all international arbitrators, are selected on the basis of their independence and qualifications. Furthermore, panel members are supposed to decide the case before them on the basis of the law (in this case the law of the WTO agreements, cf. Article 8.2 DSU).

Contrary to the complainant's submission, the parties to a dispute do not enjoy a pre-eminent role in the election of the panelists. When the Secretariat of the Dispute Settlement Body proposes nominations for the panel to the parties, the parties shall not oppose nominations except for compelling reasons (Article 8.6 DSU).

The complainant furthermore argues, implicitly, that the panel reports are not binding, since all WTO Members have the right to object to a panel report. In this respect, it should be clarified that the dispute settlement procedure was substantially reformed by the 1994 Marrakesh Agreement establishing the WTO. According to the new procedure foreseen under Article 16 DSU, it is true that Members have the possibility to raise objections, but this does not hinder the panel report from being adopted. A panel report is automatically adopted 60 days after its circulation, unless the Dispute Settlement Body decides by consensus not to adopt the report or a party to the dispute appeals the findings of the panel. Consequently, the general rule is automatic adoption of the panel report which is supposed to be promptly complied with (Article 21 DSU). After the adoption of a panel report, the Member concerned has a reasonable period of time in which to implement the recommendations (Article 21(3)(b) DSU). If the Member cannot comply within that period, it can offer compensation or be faced with the suspension of concessions (Article 22(1) DSU). The European Court of Justice and the Court of First Instance have always treated panel and Appellate Body Reports that have been adopted by the Dispute Settlement Body as binding on the Community and its institutions. However, they have also accepted that the institutions have a large margin of manoeuvre in implementing the rulings and recommendations contained in panel reports, inter alia through negotiations with other parties in the procedure (cf. Case T-19/01 Chiquita v Commission, judgment of 3 February 2005, not yet reported and Case C-377/02, judgment of 1 March 2005, not yet reported).

In short, WTO dispute settlement procedures do not differ fundamentally from other international dispute settlement procedures, whether arbitration or pure judicial settlement. Just like national or Community courts, they are independent third-party settlement procedures which are overseen by persons with a certain expertise both in the law and the subject-matter at hand, are based on the application of a specific body of law and lead to decisions that, in principle, have to be implemented by the parties, who have a considerable leeway and free choice regarding the means of implementation. The integrity of the proceedings in international dispute settlement mechanisms and the freedom from external influences with which parties should be able to prepare their written position are, at the very least, worthy of equal protection as normally given to national or Community proceedings under Article 4(2) of Regulation 1049/2001.

It is a general principle in the due administration of justice that parties have the right to defend their interests from external influences. It can be deduced from this principle that the provision of documents to other parties in litigation must be distinguished from public disclosure under Regulation 1049/2001.

The complainant submits that it is of considerable public importance to get access to the Second Submission, since the Commission was allegedly seeking to promote public acceptance of GMOs. While access to information about products which may impose potential risks on human health and environment proves the existence of a public interest, the Second Submission does not show that this public interest would outweigh the need to safeguard the Commission's capacity to defend the Community's interests before the WTO panel. Moreover, the Commission is duly taking into account the public interest in disclosure in the GMO cases since it published its submission immediately after the hearing. Thus, the public is informed of the progress in the dispute settlement procedure. Consequently, the complainant has not established that there was a public interest which overrode the general interest in protecting, at that time, ongoing WTO panel proceedings.

As already indicated above, the Commission has a policy of disclosing its submissions to WTO panels and over the past years it has typically done so immediately after the hearing has taken place. The Commission considers that exceptions to the right of access may prevent disclosure of these submissions before the hearing. Therefore, applications for access are assessed on a case-by-case basis with a view to deciding whether it is possible to publish submissions prior to the hearings. The Commission considers that, if not after the first hearing, in any case after the second hearing, the reasons for withholding the submissions no longer apply.

The above practice fully respects Regulation 1049/2001. Indeed, the submissions are made directly available as soon as it is clear that no exceptions to the right of access apply. This is consistent with Article 4(7) and with Article 12 of the Regulation.

The Commission's opinion was forwarded to the complainant, who maintained his complaint. The complainant added the following arguments and information:

The Commission seeks to give a wide interpretation to the term 'court' by reference to the notion of 'court proceedings' being a "rules-based third-party adjudication process, the results of which have to be respected by the parties". The Commission submits that WTO panel proceedings can be assimilated to court proceedings.

However, this is an untenably wide interpretation of the term and thus entirely at variance with the requirement to interpret exceptions in Regulation 1049/2001 strictly and proportionately.

When Regulation 1049/2001 was drafted, formal proposals were made to expand the 'court proceedings' exception to cover 'legal proceedings' (for instance, in the opinion of the Committee on Legal Affairs of the Internal Market(6)). Such recommendations were not accepted and the narrower term 'court proceedings' was retained. It is not permissible for the Commission now to seek to circumvent the clear intention of the Community legislator by imputing an impermissibly broad meaning to the term.

It is generally accepted that dispute resolution processes are not court proceedings and that the term 'courts' does not include tribunals or dispute resolution bodies which exercise jurisdiction over persons merely by reason of voluntary submission to their jurisdiction (as is the case here). Thus, arbitrators, dispute resolution panels, committees of clubs and the like, although they may be tribunals exercising judicial functions, are not 'courts'.

It is furthermore of some interest that the WTO itself eschews any description of the Dispute Settlement Body as a 'court', stating, for example, that "although much of the procedure does resemble a court or tribunal, the preferred solution is for the countries concerned to discuss their problems and settle the dispute by themselves" (www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm).

The Commission's view regarding the rights of disputants in the selection of panelists is, in this respect, misguided. The WTO states on its website that, "unlike a normal tribunal, the panellists [sic] are usually chosen in consultation with the countries in dispute. Only if the two sides cannot agree does the Director General appoint them" (web-page referred to above). The word 'compelling' in Article 8.6 of the DSU (relied on by the Commission) has been interpreted in such a very broad manner that panellists do, in practice, enjoy a pre-eminent role in panel selection in a manner that is unheard of in genuine court proceedings.

The Commission submits that proceedings before the Dispute Settlement Body are, at the very least, worthy of the equal protection normally accorded to national or Community proceedings under Article 4(2) of Regulation 1049/2001. As a matter of policy, that is indeed arguable. However, as a matter of law, such proceedings are simply not given the same protection as is given to court proceedings.

THE DECISION

1.1 The complainant, acting on behalf of a non-governmental organisation, made an application to the European Commission for access to the latter's Second Submission to a panel of the World Trade Organisation ("WTO"). In its confirmatory application, the Commission rejected the application on the basis of Article 4(2), second indent, of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents(7) ("Regulation 1049/2001"), which provides that:

"The institutions shall refuse access to a document where disclosure would undermine the protection of:

(...)

- court proceedings (...)".

The Commission argued that "the WTO dispute settlement procedure has to be assimilated to court proceedings" within the meaning of Article 4(2), second indent, of Regulation 1049/2001.

In its complaint to the European Ombudsman, the complainant alleged, in summary, that the Commission's rejection of its confirmatory application was contrary to Regulation 1049/2001. He argued, in particular, that Regulation 1049/2001 did not provide for any exception in relation to procedures or proceedings that could be assimilated to court proceedings, mentioned in Article 4(2), second indent, of the Regulation. He also argued in detail that the proceedings before WTO panels are, in any case, not capable of being 'assimilated to', or otherwise considered as constituting, 'court proceedings' within the meaning of the foregoing provision.

1.2 In its opinion on the complaint, the Commission essentially maintained its rejection of the complainant's confirmatory application.

1.3 In its observations on the Commission's opinion, the complainant maintained his complaint. He specifically pointed out that, when Regulation 1049/2001 was drafted, formal proposals were made to expand the 'court proceedings' exception to cover 'legal proceedings' (for instance, in the opinion of the Committee on Legal Affairs of the Internal Market(8)), but that such recommendations had not been accepted. It was therefore not permissible for the Commission to seek to circumvent the clear intention of the legislature by imputing an impermissibly broad meaning to the term 'court proceedings'. The complainant added that it is generally accepted that dispute resolution processes are not court proceedings and that courts do not include dispute resolution bodies which exercise jurisdiction over persons merely by reason of voluntary submission to their jurisdiction.

1.4 The Ombudsman notes that the Commission has rejected the complainant's confirmatory application on the basis of the argument that "the WTO dispute settlement procedure has to be assimilated to court proceedings" within the meaning of Article 4(2), second indent, of Regulation 1049/2001. This 'assimilation' argument was put forward in the Commission's reply to the complainant's confirmatory application as well as in its opinion on the present complaint. The Commission has not argued that a WTO panel is a "court", or that the proceedings before a WTO panel constitute proceedings before a court.

1.5 In light of the above, it must first be assessed whether Article 4(2), second indent, of Regulation 1049/2001, contains an exception concerning dispute settlement procedures that can be assimilated to court proceedings. In this respect, the Ombudsman recalls that, according to the settled case-law of the Community Courts, the exceptions to public access must be construed and applied strictly so as not to defeat the application of the general principle of access enshrined in Regulation 1049/2001(9). To consider that 'court proceedings' under Article 4(2), second indent, of Regulation 1049/2001 also cover dispute settlement procedures that can be assimilated to court proceedings involves an extensive interpretation of this provision of the Regulation. Such an extensive interpretation is not compatible with the principle of strict interpretation and application, indicated above. Besides, the Commission has not in any way shown that, according to the intention of the Community legislator, the phrase 'court proceedings' in Article 4(2), second indent, of Regulation 1049/2001 should be understood as also referring to other dispute settlement procedures. In light of the foregoing, the Ombudsman takes the view that the Commission's rejection of the complainant's confirmatory application on the ground that "the WTO dispute settlement procedure has to be assimilated to court proceedings" within the meaning of Article 4(2), second indent, of Regulation 1049/2001, is not well founded, and hence amounts to an instance of maladministration.

1.6 On the basis of the above finding, the Ombudsman does not consider it appropriate to examine the rest of the arguments put forward by the complainant in support of his allegation that his confirmatory application was rejected in violation of Regulation 1049/2001. Furthermore, taking into account that the document was subsequently released, the Ombudsman does not consider it appropriate to pursue a friendly settlement of the matter, but he will rather make a critical remark below in accordance with Articles 6 and 7 of the European Ombudsman's Implementing Provisions(10).

2.1 The complainant claimed that, in the future, all Commission submissions in WTO disputes should, in the absence of clear overriding reasons, be published at the same time as they are filed with the WTO panel.

2.2 The Ombudsman points out that the present inquiry was focused on whether the Commission had wrongly rejected the complainant's confirmatory application under Regulation 1049/2001. That issue has been addressed under point 1 above. However, the Ombudsman's finding under point 1.5, which concerns the propriety of the reasoning of the challenged decision, does not by itself imply that the Commission would be obliged, in general, to publish or otherwise disclose to third parties its submissions in WTO disputes at the stage in proceedings referred to by the complainant. The Ombudsman cannot exclude that the Commission's rejection of future applications for access to such documents at the stage indicated by the complainant might be valid and adequately based on one of the exceptions in Article 4 of Regulation 1049/2001. Also, the Ombudsman cannot exclude that, on the basis of analogous considerations, the provision to third parties of information on the content of such documents at the stage in proceedings suggested by the complainant might be validly denied. Moreover, it must be noted that the complainant has not specified the meaning and scope of the phrase "clear and overriding interests" used in the formulation of his claim, and in particular in relation to the exceptions provided for in Article 4 of Regulation 1049/2001.

In light of the above, the Ombudsman takes the view that it would be neither appropriate nor justified to further consider the complainant's claim with a view to accepting a rule such as the one suggested by the complainant.

2.3 In light of the foregoing, the Ombudsman does not consider it necessary or justified to further examine the above-mentioned claim.

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

According to the settled case-law of the Community Courts, the exceptions to public access must be construed and applied strictly so as not to defeat the application of the general principle of access enshrined in Regulation 1049/2001(11). To consider that 'court proceedings' under Article 4(2), second indent, of Regulation 1049/2001 also cover settlement procedures that can be assimilated to court proceedings involves an extensive interpretation of this provision of the Regulation. Such an extensive interpretation is not compatible with the principle of strict interpretation and application, indicated above. Besides, the Commission has not in any way shown that, according to the intention of the Community legislator, the term 'court proceedings' in Article 4(2), second indent, of Regulation 1049/2001 should be understood as also referring to other 'dispute settlement procedures'. In light of the foregoing, the Ombudsman takes the view that the Commission's rejection of the complainant's confirmatory application on the ground that "the WTO dispute settlement procedure has to be assimilated to court proceedings" within the meaning of Article 4(2), second indent, of Regulation 1049/2001, was not well founded, and hence amounted to an instance of maladministration.

The President of the Commission will also be informed of this decision.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

(1) OJ 2001 L 145, p. 43.

(2) Article 8, paragraph 1, Understanding on Rules and Procedures Governing the Settlement of Disputes (http://www.wto.org/english/docs_e/legal_e/legal_e.htm, Annex 2).

(3) Article 16, Understanding on Rules and Procedures Governing the Settlement of Disputes, cited above.

(4) The Ombudsman notes that in its opinion, the Commission states "[the complainant's] criticism of panel proceedings are all unfounded [...]". The Ombudsman points out that complainant made certain points in support of his argument that the document here concerned was public. He did not criticise WTO panel proceedings.

(5) http://www.wto.org/english/docs_e/legal_e/legal_e.htm (see 'Annex 2 Dispute Settlement Understanding').

(6) Report on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents, 27 October 2000, COM(2000) (30 - C5-0057/2000-2000/0032/COD), p. 93.

(7) OJ 2001 L 145, p. 43.

(8) Report on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents, 27 October 2000, COM(2000) (30 - C5-0057/2000-2000/0032/COD), p. 93.

(9) See, e.g., Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgment of 26 April 2005, not yet reported, paragraph 45.

(10) http://www.ombudsman.europa.eu/lbasis/en/provis.htm

(11) See Joined cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgment of 26 April 2005, not yet reported, paragraph 45.