(Made in accordance with Article 3 (6) of the Statute of the Ombudsman.(1))

THE COMPLAINT

On 22 November 1996, Mr B. complained to the Ombudsman that the Council does not maintain and make available to the public an up-to-date list of the measures which it adopts in the field of Justice and Home Affairs (2). The complainant claimed that in the interests of informing citizens and conforming to democratic standards the Council should maintain such a list and make it available on request.

THE INQUIRY

The Council's opinion
On 20 June 1997, the Council sent its opinion on the complaint. The opinion referred to the considerable efforts that the Council has made to improve the transparency of its proceedings in this context. In particular:

A summary of Council decisions taken under Title VI of the Treaty on European Union is produced once a year and has been published as an Annex to the annual Review of the Council's Work from the 1995 edition onwards;

Decisions taken by the Council both under Title VI and in other areas are announced in press releases issued by the General Secretariat including, in principle, acts adopted by the written procedure. Decisions formally taken by compositions of the Council which do not correspond to the subject matter concerned appear in a separate heading which can be easily identified in press releases;

A computer search of the content of Council press releases can be made using the "Rapid" base which is accessible via the Internet using the "Europa" server;

The General Secretariat of the Council is working on setting up its own data bases which will also be accessible via the Internet. Among other things they will present Council Decisions in the areas both of Justice and Home Affairs and Common Foreign and Security Policy(3).

The complainant's observations
In his observations, the complainant acknowledged the Council's efforts to provide more information. However, he considered that it is a sign of inefficiency if the Council does not itself have an up-to-date list of measures adopted in each area. He also repeated his claim that it is unacceptable that citizens cannot obtain on request an up-to-date list of the measures which have been adopted.

THE OMBUDSMAN'S ATTEMPT TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the complaint, the opinion and the observations, the Ombudsman wrote to the Council on 15 December 1997 in order to seek a friendly solution to the complaint, in accordance with Article 3 (5) of the Statute of the Ombudsman.
He informed the Council that he considered that failure to maintain an up-to-date list of measures adopted by the Council could constitute an instance of maladministration because:

(i) A basic principle of good administrative behaviour is that a public authority should maintain adequate records. Such records help ensure the consistency and continuity of activities, mentioned in Article C of the Treaty on European Union. Inadequate records could make it difficult to locate relevant documents accurately and quickly.

(ii) The Council publishes a summary of decisions taken under Title VI of the Treaty on European Union once a year. For the Council's secretariat to produce such a list only at the end of each year could lead to errors and omissions. A more effective administrative technique would be for the secretariat to maintain an up-to-date list during the year.

(iii) There appears to be no legal reason for the present position. The Council could maintain a list by virtue of its power of internal organization, which authorizes it to take appropriate measures in order to ensure its internal operation in conformity with the interests of good administration(4).

The Ombudsman suggested that the Council could respond by agreeing to maintain an up-to-date list of measures which it adopts in the field of Justice and Home Affairs. The Ombudsman also stated that making such a list available to the public would enhance transparency and strengthen the democratic nature of the Council and the public's confidence in its administration, as foreseen by Declaration 17 attached to the Treaty on European Union.
The Council's response
By letter dated 26 February 1998 the Council replied to the Ombudsman as follows:

"Thank you for your letter of 15 December 1997 concerning the complaint by Mr B. and his wish that the Council maintain an up-to-date list of measures agreed in the field of Justice and Home Affairs and make this list accessible to the public.

I am pleased to be able to confirm that the General Secretariat does indeed maintain a list of all such measures. The question of how and in what form this information might be made available to the public is currently being considered.

Moreover, the Justice and Home Affairs Council on 19 March 1998 will look at the overall issue of transparency in the third pillar."

By letter dated 13 July 1998, the Council provided additional information, including the following points:

(i) The General Secretariat is to make a database on Council activities in the JHA field accessible through the Internet. This will provide, amongst other things, lists of instruments adopted by date and subject and the possibility of access to the full texts in the official languages.

(ii) As regards publication of the list of measures taken by the Council in the JHA field, in addition to the facilities offered by the database, such information is contained in the annual review of the Council's work.

The Council's letter also contained the conclusions adopted by the JHA Council at its meeting on 19 March 1998 concerning transparency in the JHA field and information on the follow-up to the conclusions.
The complainant's response
The Council's letters of 26 February 1998 and 13 July 1998 were forwarded to the complainant, who replied by letters dated 9 March 1998 and 18 September 1998. The complainant welcomed the new initiatives concerning transparency in the JHA field, which were mentioned by the Council in its letter of 13 July 1998. However, he maintained his complaint, pointing out in particular, that the list of instruments mentioned by the Council was not the same as a list of measures and that his complaint related to the latter. Furthermore, the complainant stated that the publication of a list of measures in the Council's annual review was not sufficient to meet democratic standards, which require that citizens should be able to obtain, on request, an up-to-date list of the measures at any point during the year.
In the light of the above, it appeared that the Ombudsman's search for a friendly solution to the complaint had been unsuccessful.

DRAFT RECOMMENDATION

After considering the Council's response to the points made in his letter of 15 December 1997, the Ombudsman reached the following conclusions:
(i) The Council has stated that its General Secretariat maintains a list of all measures approved in the field of Justice and Home Affairs;
(ii) Article 1 (2) of Council Decision 93/731 on public access to Council documents (5), defines "Council document" as "any written text, whatever its medium, containing existing data and held by the Council;"
(iii) The list of all measures approved in the field of Justice and Home Affairs, which the Council has stated is maintained by its General Secretariat, appears to be a "Council document" within the meaning of Article 1 (2) of Council Decision 93/731.
In accordance with Article 3 (6) of the Statute of the Ombudsman, the Ombudsman therefore makes the following draft recommendation to the Council:

The Council should make available to the public on request, in accordance with the provisions of Council Decision 93/731/EC, the list of all measures approved in the field of Justice and Home Affairs which is maintained by its General Secretariat.

The Council and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Council shall send a detailed opinion before 31 January 1999. The detailed opinion could consist of acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.
Strasbourg, 8.10.1998
Jacob Söderman

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, 1994 OJ L 113/15.

(2) i.e. Title VI of the Treaty on European Union; the "third pillar".

(3) i.e. Title V of the Treaty on European Union; the "second pillar".

(4) See e.g. Case C-58/94, Netherlands v Council, [1996] ECR-I 2169.

(5) Council Decision 93/731/EC of 20 December 1993 on public access to Council documents, 1993 OJ L 340/43.