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

SUMMARY

The draft recommendation concerns the Council’s refusal of access to the second annual report of the Code of Conduct Group (business taxation).

The complainant’s application was originally made under Council Decision 93/731. The Ombudsman finds that the refusal of access was not in accordance with that Decision. The finding is based on two considerations. The first concerns the Council’s reasoning as regards its interest in the confidentiality of its proceedings. The Ombudsman considers the reasoning to be inadequate because it does not explain how the second annual report of the Code of Conduct Group differs in nature from the first, which the Council published. The Council’s reasoning also refers to immediate public availability of the information contained in the report, which is not an issue since the report was submitted in November 2000. The second consideration is that the Council failed to address the question of partial access.

The Ombudsman agrees with the Council that reconsideration of the application must be based on the new legal framework of Regulation 1049/2001. The draft recommendation to reconsider the application therefore refers to that Regulation.

The draft recommendation also asks the Council to take into account the Ombudsman’s finding that the document in question could relate to its legislative activities and to consider an argument, made in the complainant’s final observations, concerning the public interest in accurate financial reporting by companies.

The Council should send a detailed opinion before 31 October 2002.

THE COMPLAINT

The complaint was made on behalf of a firm of consultants. It was classified as confidential, at the complainant’s request, in accordance with Article 2 (3) of the Statute of the Ombudsman.

The complaint concerns the Council's rejection of the complainant’s confirmatory application for access to Council document 13563/00, which is the second annual progress report from the Code of Conduct Group (Business Taxation) to ECOFIN(2). The Council refused access to the document by reference to Article 4 (2) of Council Decision 93/731, which provides that access to a Council document may be refused in order to protect the confidentiality of the Council's proceedings.

In summary, the complainant contests the refusal on three grounds:

The nature of the document and of the Code of Conduct Group

According to the complainant, the Council is not entitled to refuse access to the document by virtue of Article 4 (2) of Decision 93/731 because the document in question is not a report on proceedings of the Council, but a factual report on business taxation prepared by a group of national delegations organised by the Commission and reporting to the Council.

The complainant stated that he understands the document to include information about which measures are considered harmful at the date of 26 November 2000, why they are considered harmful, what reservations have been expressed by national delegations and what steps had been taken to dismantle those measures by 26 November 2000 in order to meet the timetable set by the Council for abolition of the measures and agreement on the tax package as a whole. The complainant considers that the term "proceedings" in Article 4 (2) of Decision 93/731 cannot be extended to include factual information in a progress report on the complex question of abolition of harmful tax measures.

Article 207 (3) EC

According to the complainant, the refusal of access does not conform with the spirit of Article 207(3) EC, which implies that there will be greater access to documents when they concern agreement on a tax package which contains both legislative and non-legislative measures, of which the code of conduct is a part.

The interests in disclosure and non-disclosure

According to the complainant, the Council failed to give sufficient weight to the public interest in disclosure of the document. Companies, shareholders and employees will be affected by business reorganisation following the rollback of tax measures. They therefore have an interest in being made aware of the facts obtained by the Code of Conduct Group, the status of negotiations and the steps that have so far been taken by Member States to dismantle harmful measures. The complainant considers that disclosure would enhance rather than impede the ongoing deliberations on this important issue and is needed to enable companies, shareholders and employees to prepare for the changes proposed by the Council.

The complainant claims that the Council should give access to: Document 13563/00, to other associated documents i.e. 6421/01, 6867/01, 6844/01, 7141/01, 7142/01, 7140/01, 6981/01, 7177/01, 7552/01, 7603/01, 7497/01, 7603/01, as well as to all future reports of the Code of Conduct Group.

THE INQUIRY

The Council's opinion
The nature of the document and of the Code of Conduct Group

The Council argues that points 2 and 10 of the Council Conclusions of 9 March 1998 clearly confirm that the Code of Conduct Group is set up and operates within the framework of the Council. Hence the Code of Conduct Group and its subgroups are preparatory bodies of the Council and their documents are Council documents within the meaning of Decision 93/731.

The report in question describes in detail the state of the discussions of the Code of Conduct Group. These discussions are held within the framework of the Council with a view to paving the way for political agreement on the tax package as a whole. The document therefore has a bearing on Council proceedings.

Article 207 (3) EC

The Council argues that the deliberations of the Code of Conduct Group do not themselves aim at the adoption of a legislative act. According to case law each document needs to be examined individually. Hence, the fact that they form part of a package that also comprises legislative measures is not relevant.

The interests in disclosure and non-disclosure

The Council accepts that there is an interest in being informed of the progress of the work of the Code of Conduct Group. However, Article 4 (2) of Decision 93/731 allows the Council to refuse access where the general interest in the efficiency of the proceedings of the Council, including its preparatory bodies, requires confidentiality of a document drawn up in the course of those proceedings and, on balance, this general interest prevails over an individual’s or the public’s interest to get access to this document. There is a general interest in achieving progress in an area that goes to the very heart of national interests. Premature disclosure of the document could impede the ongoing deliberations and thereby run contrary to the general interest in achieving progress in the area of business taxation. Whenever, in the light of the progress of its work, the Council reviews its position, the Ombudsman, the complainant and other persons who have requested access to the document will be informed immediately.

Other documents

As regards the other existing documents to which the complainant claims access, the Council stated that it has received no application by the complainant. Any such application would be dealt with in accordance with Decision 93/731. As regards future reports of the Code of Conduct Group, the Council cannot decide on the release of documents that do not yet exist.

The complainant's observations
The nature of the document and of the Code of Conduct Group

As regards the definition of "proceedings" for the purposes of Article 4 (2) of Decision 93/731, the complainant argued that the Council is mistaken to confuse the Code of Conduct Group’s factual report on the delegation’s detailed positions with ongoing negotiations at the level of the Council on the tax package as a whole. The terms of reference of the Code of Conduct Group mean that its work is to define and assess potentially harmful tax measures, not to engage in political negotiations on the tax package as a whole.

Article 207 (3) EC

The complainant argued that a legislative act could result from the deliberations of the Code of Conduct Group, because the tax package will be decided as a whole with a single decision.

The interests in disclosure and non-disclosure

"Efficiency" means functioning effectively and with least waste of effort. The Council had produced no evidence that granting access would impede its proceedings or cause effort to be wasted, nor that secrecy is essential to those proceedings. To support this point, the complainant argued that the Council had released the first annual progress report in February 2000 and that this did not prevent the proper functioning of the Council or the Code of Conduct Group.

As regards the balancing of interests, the complainant argued that the only objective that the Council has presented to justify refusal to disclose is the objective of a political agreement on a tax package. Since the Council does not link its decision to refuse access to an EC Treaty objective it is impossible to deduce which essential interest the Council is protecting. Furthermore, the Council has not presented any objectively verifiable evaluation of the public interest.

Other documents

The complainant’s observations also clarify that his claim as regards the other documents mentioned in his complaint, and as regards future reports of the Code of Conduct Group, is that they should be made available in the Council’s public register of documents.

Further inquiries

After careful consideration of the Council's opinion and the complainant's observations, the Ombudsman considered it necessary to request the Council to respond to the points made by the complainant in his observations.

The Ombudsman also noted that, from 3 December 2001, access to Council documents is governed by Regulation 1049/2001(3) and by the Council Decision of 29 November 2001 amending the Council's Rules of Procedure(4), which also repealed Council Decision 93/731. The Ombudsman therefore considered that a time limit of two calendar months for the Council’s reply was appropriate, rather than the normal one month, to allow the Council to take the new legal framework into account.

The Council’s reply

The Council’s reply made, in summary, the following points:

The Council understands that the Ombudsman's examination of whether the Council's refusal gave rise to a case of maladministration will be based on Decision 93/731. However, any re-examination by the Council of the complainant's request must now be based on Regulation 1049/2001. The Council’s response to the complainant's observations therefore takes the new legal framework into account.

The nature of the document and of the Code of Conduct Group

For the purpose of access to documents, the terms "Council's proceedings" or "the institution’s decision-making process" include not only the Council at ministerial level, but also deliberations and discussions in the Council's preparatory bodies. Discussions on the tax package to which the document in question relates are still going on at different levels within the Council. The document in question therefore relates to ongoing Council proceedings in the sense of Article 4 (2) of Decision 93/731 and Article 4 (3) of Regulation 1049/2001.

Article 207 (3) EC

Article 207 (3) EC provides that greater access to documents relating to the Council's legislative activities is to be balanced against the effectiveness of its decision-making process. This is reflected in Article 4 (3) of Regulation 1049/2001 which provides that access to a document relating to a matter where the decision has not been taken by the institution shall be refused if disclosure would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure. In the present case, the Council is still of the opinion that the balance is clearly in favour of withholding the document in question.

The interests in disclosure and non-disclosure

As regards the complainant’s arguments concerning efficiency, the ex ante "harm test" concerning the possible consequences of releasing a specific document can, by definition, only be based on known risk factors.

Fiscal policy, and more specifically business taxation, is particularly sensitive and goes to the very heart of national interests. Member States are only prepared to even enter into discussions on delicate questions relating to their internal taxation policy when they can be assured that this information will not immediately become publicly available. This is why the Council agreed, in its conclusions of 9 March 1998 concerning the establishment of the Code of Conduct Group on business taxation, that the work of the Group should be confidential.

It is logically faulty to draw inferences from the content of the previous report of the Code of Conduct Group which was released in February 2000 and the consequences of its release on the harm which could be caused by the release of the document at issue. The report that was released did not contain information which was considered to be harmful for the Council decision-making process - this is precisely why it was released.

As regards the public interest, the general interest in achieving progress on a certain dossier is not explicitly mentioned in Article 4 of Decision 93/731, but it is the underlying reason which justifies the exception. In fact, the confidentiality of the Council’s proceedings does not constitute an interest in itself, but in certain circumstances confidentiality is necessary to safeguard the general interest in the good functioning of institution's decision-making process. This is confirmed in Article 4 (3) of Regulation 1049/2001. Hence, both under Decision 93/731 and Regulation 1049/2001 the Council is entitled to refuse access to a document relating to ongoing discussions if its disclosure would seriously undermine its decision-making process, unless there is an overriding public interest in disclosure.

In this context, the Council emphasised that the lack of success of proposals made from 1975 onwards for approximation of laws in the area of company taxation has substantially contributed to maintaining distortions in the single market and - less visibly - to generating unemployment and even to creating opportunities for tax base erosion, which has driven Member States to some extent to overcharge labour. This is why the Commission in 1990 suggested a new approach in which all initiatives in this area should be defined through a consultative process with the Member States. The tax package agreed by the Council in December 1997 has introduced a new impetus to the discussion on taxation. The work of the Code of Conduct Group forms part of this package, whose adoption is clearly in the long-term general interest of Member States, companies and consumers. In the Council's view, the factors that plead in favour of releasing the document in question are outweighed by this general interest. The fact that the Code of Conduct Group is not directly engaged in political negotiations on the tax package is irrelevant, as the result of its work is to form part of the overall tax package.

In addition, release of these documents at the present stage could have an impact on the tax policy of the companies concerned and their decisions on the location and the conduct of their business activities, which could lead to significant variations of tax income for the Member States concerned. Access to the document must therefore also be refused on the basis of Article 4 (1a) of Regulation 1049/2001 (protection of the public interest as regards Member States' financial policy).

Other documents

The complainant's request that certain documents should be available on the Council’s register is already complied with as far as the information referred to in Article 11 (2) of Regulation 1049/2001 is concerned. However, those documents do not fall within the categories listed in Article 11 of Annex III to the Council's Rules of Procedure and so are not directly accessible to the public. This would not preclude their examination under Regulation 1049/2001 following a written application.

The complainant’s observations

The complainant’s observations on the Council’s reply included, in summary, the following points:

The nature of the document and of the Code of Conduct Group

According to paragraphs H and I of the code of conduct, agreed by ECOFIN in December 1997, the reports of the Code of Conduct Group are factual assessments of national tax measures and their impact on the single market. The actual rollback of harmful tax measures is assessed by the Commission in a separate report to the Council, under paragraph N of the code of conduct. The Code of Conduct group is therefore not engaged in political negotiations because the formation of the tax package is distinct from discussions on whether or how to implement it. The work of the Group as defined by its terms of reference is therefore not part of "Council proceedings" for the purpose of Article 4 (2) of Decision 93/731 or of the Council’s "decision-making process" for the purpose of Article 4(3) of Regulation 1049/2001.

Article 207 (3) EC

In substance, the Council is working towards the adoption as a whole of a package of legislative and non-legislative measures, which will be subject to a single decision in December 2002. It is misleading to claim that the parts of the package are legally separate when they will be subject to a single political decision. Since the reports of the Code of Conduct Group form part of the tax package, votes, explanations of vote and statements in the minutes which contribute to the making of those reports, as well as the reports themselves and the Council's comments on the reports all fall within the meaning of Article 207(3) EC.

The interests in disclosure and non-disclosure

The Council argues that that Member States are only prepared even to enter into discussions when they can be assured that this information will not immediately become publicly available. However, this seems to contradict paragraph E of the code of conduct, which provides for Member States to inform each other of existing and proposed tax measures in accordance with the principles of transparency and openness. It is therefore unnecessary to refuse access to the document. Moreover, openness is all the more important since the tax package will not be subject to scrutiny by the European Parliament or the Economic and Social Committee. Without openness, the decision-making process would therefore lack accountability.

As regards the Council's argument that the second annual report of the Code of Conduct Group should be handled differently from the first, the content of the second report is not likely to present a greater risk to the Council's proceedings, since both reports were compiled under the same terms of reference. Nothing in the Council's reply explains how the good functioning of an objective assessment process, which has taken place annually since November 1999, would be threatened by release of the document.

As regards the Council’s invocation of the "protection of the public interest as regards the Member States' financial policy" as a new justification for refusing access, it should be noted that the raising of tax revenue is neither an express nor implied function of the code of conduct group.

As regards the public interest in disclosure, the Council's failure to release the progress reports of the Code of Conduct Group prevents companies from reporting accurately to shareholders on their contingent liabilities. Accurate financial reporting would be an overriding reason in the public interest to grant access.

THE DECISION

1 The legal framework

1.1 The complainant contested the Council’s refusal, under Council Decision 93/731, to grant access to the second annual report of the Code of Conduct Group (business taxation). In requesting further information from the Council in January 2002, the Ombudsman noted that, from 3 December 2001, access to Council documents is governed by Regulation 1049/2001(5) and by the Council Decision of 29 November 2001 amending the Council's Rules of Procedure(6), which also repealed Council Decision 93/731.

1.2 In its reply to the Ombudsman’s request for further information, the Council stated its understanding that the Ombudsman's examination of whether the Council's refusal of access gave rise to a case of maladministration will be based on Decision 93/731, but that since any re-examination of the complainant's request must be based on Regulation 1049/2001, the Council’s reply takes the new legal framework into account.

1.3 The Ombudsman’s decision on the complaint is in accordance with the Council’s understanding, set out in the preceding paragraph, of the basis of the Ombudsman’s inquiry.

2 The complainant’s claims concerning other documents

2.1 The complainant claims that certain other documents associated with the second annual report of the Code of Conduct Group (business taxation), as well all future reports of the Group, should be made available in the Council’s public register of documents.

2.2 According to the Council, the documents concerned are registered in its public register in accordance with Article 11 (2) of Regulation 1049/2001. However, they do not fall within the categories of document that are directly accessible through the register according to Article 11 of Annex III to the Council’s Rules of Procedure. This would not preclude examination of a written application for access to the documents, made under Regulation 1049/2001.

2.3 The Ombudsman considers that the Council’s response to the complainant is in accordance with the applicable legal framework and therefore finds no maladministration in relation to this aspect of the complaint.

3 The nature of the document and of the Code of Conduct Group

3.1 According to the complainant, the document in question is not a report on proceedings of the Council, but a factual report prepared by a group of national delegations organised by the Commission and reporting to the Council. The task of the Code of Conduct Group as defined by its terms of reference is to define and assess potentially harmful tax measures, not to engage in political negotiations on the tax package as a whole. The work of the Code of Conduct Group is therefore not part of Council proceedings for the purpose of Article 4 (2) of Decision 93/731 or of the Council’s decision-making process for the purpose of Article 4 (3) of Regulation 1049/2001.

3.2 The Council argues that Code of Conduct Group and its subgroups are preparatory bodies of the Council. Discussions of the Code of Conduct Group are held within the framework of the Council with a view to paving the way for political agreement on the tax package as a whole. For the purpose of access to documents, the terms "Council's proceedings" and "institution’s decision-making process" include not only the Council at ministerial level, but also deliberations and discussions in the Council's preparatory bodies. Discussions on the tax package to which the document in question relates continue at different levels within the Council. The document in question therefore relates to ongoing Council proceedings in the sense of Article 4 (2) of Decision 93/731 and Article 4 (3) of Regulation 1049/2001.

3.3 The Ombudsman notes that points 2 and 10 of the Council Conclusions of 9 March 1998 concerning the establishment of the Code of Conduct Group (business taxation) refer to the Group as being set up within the framework of the Council. The Ombudsman also notes that point 3 of the Conclusions states that the work of the Group is accorded political importance and that this should be reflected in the appointment by each Member State and the Commission of a high level representative and a deputy member. Moreover, in point 11, the Council agrees that the Group shall meet not less than twice a year at a high level to facilitate a political orientation to the work of the Group(7).

3.4 The evidence available to the Ombudsman, therefore, is that the work of the Code of Conduct Group should be considered as part of the Council’s proceedings and decision-making process for the purpose of public access to documents. The complainant’s first ground of challenge to the refusal of access cannot, therefore, be sustained and the Ombudsman finds no maladministration in relation to this ground of complaint.

4 Article 207 (3) EC

4.1 According to the complainant, the refusal of access does not conform with the spirit of Article 207 (3) EC, which implies that there will be greater access to documents when they concern agreement on a tax package which contains both legislative and non-legislative measures. The tax package will be decided as a whole with a single decision. The reports of the Code of Conduct Group form part of the tax package and therefore fall within the meaning of Article 207 (3) EC.

4.2 The Council argues that the deliberations of the Code of Conduct Group do not themselves aim at the adoption of a legislative act. According to case law, each document needs to be examined individually. Hence, the fact that they form part of a package that also comprises legislative measures is not relevant.

4.3 The Council also argues that Article 207 (3) EC provides for greater access to documents relating to the Council's legislative activities to be balanced against the effectiveness of its decision-making process.

4.4 The Ombudsman notes that Article 7 of the Rules of Procedure adopted by the Council on 5 June 2000(8) defines the cases in which the Council acts in its legislative capacity within the meaning of the second subparagraph of Article 207 (3) of the EC Treaty. The Ombudsman also notes that Article 207 (3) EC makes reference to Article 255 (3) EC. The Ombudsman considers, however, that the principle underlying the definition contained in Article 7 of the Council’s Rules of Procedure is also relevant to the interpretation and application of Council Decision 93/731, since the joint Code of Conduct on access to Council and Commission documents (to which Decision 93/731 gave effect as regards the Council) contained the general principle that the public will have "the widest possible access to documents held by the Commission and the Council."

4.5 According to Article 7 of the Council’s Rules of Procedure, the Council acts in its legislative capacity when it adopts rules which are legally binding in or for the Member States, by means of regulations, directives, framework decisions or decisions, on the basis of the relevant provisions of the Treaties, with the exception of discussions leading to the adoption of internal measures, administrative or budgetary acts, acts concerning inter-institutional or international relations or non-binding acts such as conclusions, recommendations or resolutions.

4.6 The Ombudsman notes that the Council published the first annual report of the Code of Conduct Group, which contains, amongst other things, a large amount of information about law and practice in the Member States, which would form essential background for understanding any future Community legislation in the field(9). In the absence of contrary evidence, the Ombudsman assumes that subsequent reports, including the second annual report (the document in question) also consist partly of information of this kind. On the basis of the available evidence, therefore, the Ombudsman finds that the document in question could relate to the Council's legislative activities. In the Ombudsman’s view, the Council should take this into account in future decisions concerning public access to the document concerned.

5 The interests in disclosure and non-disclosure
The public interest in disclosure

5.1 According to the complainant, the Council failed to give sufficient weight to the public interest in disclosure of the document. Companies, shareholders and employees will be affected by business reorganisation following the rollback of tax measures. They therefore have an interest in being made aware of the facts obtained by the Code of Conduct Group, the status of negotiations and the steps that have so far been taken by Member States to dismantle harmful measures.

5.2 The Council accepts that there is an interest in being informed of the progress of the work of the Code of Conduct Group. However both under Decision 93/731 and Regulation 1049/2001 the Council is entitled to refuse access to a document relating to ongoing discussions if its disclosure would seriously undermine its decision-making process, unless there is an overriding public interest in disclosure. The Council’s arguments in favour of non-disclosure are detailed below.

5.3 In his final observations, the complainant argued that the Council's failure to release the reports of the Code of Conduct Group prevents companies from reporting accurately to shareholders on their contingent liabilities. Accurate financial reporting would be an overriding reason in the public interest to grant access.

The arguments concerning the interest in non-disclosure
The Council’s decision to publish the first report

5.4 The complainant argued that release of the first annual progress report did not prevent the proper functioning of the Council or the Code of Conduct Group. The content of the second report is not likely to present a greater risk to the Council's proceedings, since both reports were compiled under the same terms of reference.

5.5 According to the Council, the report in question describes in detail the state of the discussions of the Code of Conduct Group. The report that was released did not contain information that was considered to be harmful for the Council’s decision-making process.

The sensitivity of the issues

5.6 According to the complainant, disclosure would enhance rather than impede the ongoing deliberations.

5.7 According to the Council, premature disclosure of the document could impede the ongoing deliberations. Fiscal policy, and more specifically business taxation, is particularly sensitive and goes to the very heart of national interests. Member States are only prepared to even enter into discussions on delicate questions relating to their internal taxation policy when they can be assured that this information will not immediately become publicly available. The work of the Code of Conduct Group forms part of a tax package agreed by the Council in December 1997. The adoption of the package would be in the long-term general interest of Member States, companies and consumers. This interest outweighs the interest in releasing the document.

5.8 In final observations, the complainant argued that the code of conduct provides for Member States to give information to the Code of Conduct Group in accordance with the principles of transparency and openness. It is therefore unnecessary to refuse access to the document. Moreover, openness is all the more important since the tax package will not be subject to scrutiny by the European Parliament or the Economic and Social Committee. Without openness, the decision-making process for achieving agreement on the tax package would therefore lack accountability.

Protection of the public interest as regards Member States' financial policy

5.9 The Council argued that disclosure at the present stage could have an impact on the tax policy of the companies affected and their decisions on the location and the conduct of their business activities, which could lead to significant variations of tax income for the Member States concerned. Access to the document must therefore also be refused on the basis of Article 4 (1a) of Regulation 1049/2001 (protection of the public interest as regards Member States' financial policy).

5.10 The complainant argued that the raising of tax revenue is neither an express nor implied function of the Code of Conduct Group.

The Ombudsman’s assessment of the arguments

5.11 The Ombudsman first notes that the Council accepts the complainant’s argument that there is a public interest in disclosure of the second annual report of the Code of Conduct Group. In the Ombudsman’s view, the complainant’s additional argument in his final observations that release of the document is necessary to secure the public interest in accurate financial reporting by companies should be considered by the Council in future decisions concerning public access to the document concerned.

5.12 The Ombudsman accepts the Council’s argument that both under Decision 93/731 and Regulation 1049/2001 the Council is entitled to refuse access to a document relating to ongoing discussions if its disclosure would seriously undermine its decision-making process, unless there is an overriding public interest in disclosure.

5.13 As regards the document in question, the Ombudsman notes that Paragraph H of the Conclusions of the ECOFIN meeting on 1 December 1997(10) provides that reports of the Code of Conduct Group will be published if the Council so decides. The Council did decide to publish the Group’s first annual report. As justification for its refusal to disclose the second annual report, the Council states that Member States are only prepared to enter into discussions on delicate questions relating to their internal taxation policy when they can be assured that this information will not immediately become publicly available. According to the Council, the second annual report describes in detail the state of the discussions of the Code of Conduct Group. The Council has not explained, however, in what way the second annual report differs in nature from the first, which was published. Furthermore, immediate public availability of the information contained in the report is not an issue, since the report was submitted in November 2000. The Ombudsman therefore considers that the Council’s reasoning is inadequate to explain its interest in the confidentiality of its proceedings as regards the document in question, or to demonstrate that disclosure of the document would seriously undermine the Council’s decision-making process. This failure to provide adequate reasons is an instance of maladministration.

5.14 The Ombudsman also points out that the Council’s argument that access to the document must also be refused on the basis of Article 4 (1a) of Regulation 1049/2001 could not be considered to be sufficiently reasoned without an adequate explanation of how the second annual report differs in nature from the first, which was published.

5.15 Furthermore, the Ombudsman notes that the Council has not addressed the question of partial access to the document in question. According to the case law of the Court the Council is obliged, in applying Decision 93/731, to examine whether partial access should be granted to information not covered by the exceptions(11). Partial access is also expressly foreseen by Article 4 (6) of Regulation 1049/2001. The Council’s failure to address the question of partial access is therefore an instance of maladministration.

6 Conclusions

6.1 The Ombudsman considers that the Council’s decision to refuse the complainant access to the second annual report of the Code of Conduct Group (business taxation) is tainted by maladministration because:

- the Council’s reasoning is inadequate to explain its interest in the confidentiality of its proceedings as regards the document in question, or to demonstrate that disclosure of the document would seriously undermine the Council’s decision-making process and

- the Council failed to address the question of partial access.

6.2 The Ombudsman agrees with the Council that re-examination of the complainant's request must be based on Regulation 1049/2001.

6.3 The Ombudsman considers that the Council’s re-examination of the complainant's request should take into account the Ombudsman’s finding that the document in question could relate to the Council's legislative activities (paragraph 4.6 above) and consider the complainant’s argument concerning the public interest in accurate financial reporting by companies (paragraph 5.11 above).

6.4 The Ombudsman therefore makes the following draft recommendation to the Council, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

The Council of the European Union should reconsider the complainant's application and give access to the documents requested, unless one or more of the exceptions contained in Article 4 of Regulation 1049/2001 applies. The Council should take into account the Ombudsman’s finding that the document in question could relate to its legislative activities and also consider the complainant’s argument concerning the public interest in accurate financial reporting by companies.

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 October 2002. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.

Strasbourg, 17 June 2002

 

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, OJ 1994 L 113, page 15.

(2) The Council meeting in the formation of Economic and Finance Ministers.

(3) Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 OJ L 145/43.

(4) 2001 OJ L 313/40.

(5) Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 OJ L 145/43.

(6) 2001 OJ L 313/40.

(7) 1998 OJ C 99/1.

(8) Council Decision of 5 June 2000 (2000/396/EC, ECSC, Euratom) adopting the Council's Rules of Procedure 2000 OJ L 149/21.

(9) The report is available on the internet at several sites, including the Commission part of the Europa server:
http://ec.europa.eu/taxation_customs/taxation/law/primarolo.htm

(10) 1998 OJ C 2/1.

(11) Case C-353/99 P, Council of the European Union v Heidi Hautala, Judgement of the Court of 6 December 2001, para. 87.