Strasbourg, 27 February 2004

Dear Mr H.,

On 25 February 2003, you made a complaint to the European Ombudsman on behalf of Corporate Europe Observatory concerning the Commission's refusal of your application for access, made under Regulation 1049/2001(1), to all Commission documents concerning the preparations for possible negotiations on a World Trade Organisation (WTO) investment agreement.

On 27 March 2003, you submitted, at my request, additional documents relating to your complaint. On 5 May 2003, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 28 July 2003. I forwarded it to you with an invitation to make observations, which you sent on 3 September 2003.

On 20 October 2003, I made a proposal to the Commission for a friendly solution to your complaint. On 30 January 2004, the Commission sent its reply to this proposal. On 19 February 2004, you informed my services by telephone that you consider that a friendly solution has been achieved.

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

THE COMPLAINT

The complaint to the Ombudsman, made in February 2003, concerns the Commission's refusal of an application for access, made under Regulation 1049/2001(2), to all Commission documents concerning the preparations for possible negotiations on a World Trade Organisation (WTO) investment agreement.

According to the complainant, who complains on behalf of Corporate Europe Observatory, the relevant facts are, in summary, the following:

In July 2002, the complainant applied to the Commission, under Regulation 1049/2001, for access to "all documents relating to the Commission's preparations for possible negotiations on a multilateral investment framework in the WTO, excluding the documents posted on the DG Trade website". By letter dated 28 August 2002, the Commission refused access to the requested documents, which it defined as the "internal preparatory work on draft documents for the DDA (Doha Development Agenda) process in WTO".

On 13 September 2002, the complainant made a confirmatory application in accordance with Article 7(2) of Regulation 1049/2001, asking the Commission to reconsider its position. In his confirmatory application, the complainant clarified that his request also covered materials from before Doha. By letter dated 16 January 2003, the Commission rejected the confirmatory application. The Commission defined the documents concerned as documents "relating to the seven issues mentioned in paragraph 22 of the Doha Ministerial Declaration". In the Commission's view, the requested documents were the preparatory work for the Concept Papers that the Commission had undertaken to produce on each of the seven issues mentioned in the Doha Ministerial Declaration. In reply to the complainant's clarification that his request also covers documents from before Doha, the Commission stated that "DG Trade in its first reply rightly limited its research to documents concerning the Doha Development Agenda since, before the Doha Ministerial Meeting, the WTO had no mandate to negotiate a multilateral investment framework." The Commission gave as its reason for refusing access to the preparatory documents that their publication could prejudice the Commission's and European Community's margin of manoeuvre in negotiations vis-à-vis third countries, and that the exception in Article 4(1) (a) of Regulation 1049/2001 was therefore applicable(3).

In his complaint to the Ombudsman, the complainant alleges that the Commission:

(i) failed to comply with the deadlines stated in Regulation 1049/2001;

(ii) defined too narrowly the documents covered by the application for access; and

(iii) wrongly relied on Article 4(1) (a) of Regulation 1049/2001 as the basis for refusing access to the requested documents.

The complainant argues that his request covers much more than just the Concept Papers and includes documents such as: "Mission Reports (from Geneva), (annotated) agendas, background papers, speaking notes, briefing notes, reports of meetings, correspondence (also with industry), notes to and from Commission representatives (also from different DGs), notes to committee 133 etc." The complainant further states that his request also covers documents from before Doha, including the preparations for the Seattle Ministerial Conference. According to the complainant, discussions on investments in the WTO go back to at least 1996 and the Commission has been engaged in intensive campaigning for WTO investment talks at least since 1999. Furthermore, talks in the WTO's Working Group on Trade and Investment were held already before Doha.

The complainant also argues that the use of Article 4(1) (a) of Regulation 1049/2001 is not justified, since it means denying citizens the right to transparency, which is a condition for democratic control over how the Commission exercises its powers. The complainant stresses that Regulation 1049/2001 calls for documents to be accessible to the greatest possible extent and that a blanket refusal referring to "international relations" is not an appropriate response.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made, in summary, the following points:

The Commission regrets that it did not reply to the confirmatory application within the prescribed time limit, which in this case was extended to 30 days. The complainant was, however, kept informed about the delay. One reason for the delay was the very general terms in which the complainant’s request was formulated.

The only documents concerning possible negotiations on multilateral investment are the Concept Papers submitted by the Commission on the seven issues mentioned in paragraph 22 of the Doha Ministerial Declaration.

Before the Doha Conference, the WTO had no mandate to negotiate a multilateral investment framework. Furthermore, after the failure to conclude a Multilateral Agreement on Investment within the OECD, the issue was off the agenda of international trade talks until the Doha Conference. However, the European Community supported the idea of a multilateral investment framework, as set out in the Commission's communication "A level playing field for direct investment world-wide" [COM(95) 42]. In July 1999, in preparation for the Seattle Conference, the Commission proposed to include this issue as part of a new round of WTO negotiations in its communication "The EU approach to the Millennium Round". These documents are publicly available and there are no other documents concerning multilateral investment negotiations established before the Doha Conference.

As regards the allegation that it wrongly relied on Article 4(1) (a) of Regulation 1049/2001, the Commission maintains its view that disclosure of the draft Concept Papers would undermine the protection of the Community's international interests. Disclosure would reveal those elements that were subject to discussions within the Commission and between the Commission and the Member States and the disclosure of such divergent opinions would seriously affect the position of the Commission, acting on behalf of the Community and the Member States, in future negotiations.

The complainant's observations

In his observations, the complainant made, in summary, the following points:

The application covers much more material than the Commission has acknowledged. The Commission has failed to produce any arguments for narrowing down his request. In the period between the collapse of the Multilateral Agreement on Investment and the Doha Ministerial Conference, the Commission campaigned very actively inside and outside the WTO working group on Trade and Investment, for a launch of WTO investment negotiations. Accordingly, Commission documents reflecting these efforts do exist and are covered by the request for access.

As regards the use of Article 4(1) (a) of Regulation 1049/2001, the complainant argues that securing transparency on this subject is a matter of public interest, especially since the Commission's push for the launch of WTO investment negotiations is highly controversial.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant’s allegation concerning the scope of the application for access to documents. In accordance with Article 3 (5) of the Statute(4), the Ombudsman therefore wrote to the President of the Commission to propose a friendly solution on the basis of the following analysis.

1 The complainant alleges that the Commission has unduly narrowed down the scope of his request for access to documents. He argues that the request covers much more than just the preparatory documents for the seven “Concept Papers” referred to by the Commission and describes certain categories of documents to which he seeks access(5). The complainant further argues that documents exist from before the Doha Ministerial Conference and are covered by his request.

2 According to the Commission, the complainant's request for access was formulated in very general terms. The Commission also argues that the only documents concerning possible negotiations on multilateral investment are the Concept Papers on the seven issues mentioned in paragraph 22 of the Doha Ministerial Declaration. As regards documents from before Doha, the Commission states that, at the time, the WTO had no mandate to negotiate a multilateral investment framework and that the only documents concerning multilateral investment negotiations from before Doha are two communications, which are publicly available.

3 The Ombudsman points out that Article 6(2) of Regulation 1049/2001 requires that, if an application for access to documents is not sufficiently precise, the institution “shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents.” The Ombudsman notes that, notwithstanding its view that the complainant’s request for access was formulated in very general terms, the Commission does not appear to have asked the complainant for clarification. Furthermore, the Commission does not appear to have assisted the complainant by responding to the list of categories of documents mentioned in his complaint to the Ombudsman, nor to have referred him to a public register that would include any such documents, as foreseen by Article 6(2) and Article 11 of Regulation 1049/2001.

4 The Ombudsman's provisional conclusion was, therefore, that the fact that the Commission has neither responded to the complainant’s list of categories of documents, nor referred him to a public register that would include any such documents, could be an instance of maladministration. The Ombudsman therefore proposed a friendly solution regarding the matter (see below).

The proposal for a friendly solution

The European Ombudsman suggested that the Commission, with a view to assisting the complainant in clarifying his request for access to documents, could provide the complainant with a full list of its existing documents belonging to the categories listed by the complainant in his complaint to the Ombudsman - i.e. Mission Reports (from Geneva), (annotated) agendas, background papers, speaking notes, briefing notes, reports of meetings, correspondence (also with industry), notes to and from Commission representatives (also from different DGs), notes to committee 133 - which are related to the WTO and investment. The list should also include any existing documents relating to the Commission's support for a launch of WTO investment negotiations from the period between the collapse of the Multilateral Agreement on Investment and the Doha Ministerial Conference.

The Commission's response

In reply to the Ombudsman's proposal, the Commission explains that it has extended its research and analysed, on a case by case basis, every single document between the end of 1998 and the Doha Ministerial Conference. This research involved a large number of documents (internal notes, correspondence, meeting reports etc.), which caused additional delay, for which it apologises. The Commission hopes that the list attached to its reply, which identifies 296 documents dated from October 1998 to October 2003, meets the request.

The complainant's observations

On 19 February 2004, the complainant informs the Ombudsman's services by telephone that he considers that a friendly solution has been achieved. He adds that he will now make a new application for access to documents, based on the list provided by the Commission, and that he hopes that his application will be handled in a timely manner and that access will be granted. He thanks the Ombudsman for his assistance.

THE DECISION

1 The alleged failure to comply with the deadlines in Regulation 1049/2001

1.1 The complainant alleges that the Commission has not complied with the deadlines in the Regulation.

1.2 In its opinion, the Commission expresses its regret for not replying to the confirmatory application within the prescribed time limit.

1.3 The Ombudsman notes that the Commission has acknowledged that its reply was late and that it has apologised for the delay. In these circumstances, the Ombudsman considers that no further inquiries regarding this part of the complaint are necessary.

2 The allegation that the requested documents have been too narrowly defined

2.1 The complainant alleges that the Commission has unduly narrowed down the scope of his request for access to documents.

2.2 After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman found that, notwithstanding its view that the complainant’s request for access was formulated in very general terms, the Commission does not appear to have asked the complainant for clarification. Furthermore, the Commission does not appear to have assisted the complainant by responding to the list of categories of documents mentioned in his complaint to the Ombudsman, nor to have referred him to a public register that would include any such documents, as foreseen by Regulation 1049/2001. The Ombudsman therefore wrote to the President of the Commission to propose a friendly solution in accordance with Article 3(5) of the Statute.

2.3 In reply to the Ombudsman's proposal, the Commission explains that it has extended its research and analysed more documents. It has thereby come up with a list of, in total, 296 documents dated from October 1998 to October 2003. The Commission enclosed the list with its reply.

2.4 The complainant informed the Ombudsman that he considers that a friendly solution to the present complaint has been achieved and that he will now make a new application for access to documents, based on the list provided by the Commission.

3 The alleged incorrect use of Article 4(1) (a) of Regulation 1049/2001

3.1 In view of the above outcome as regards the complainant's allegation that the Commission defined too narrowly the requested documents, the Ombudsman considers that it would be premature to examine the application of Article 4(1) (a) of Regulation 1049/2001 to the complainant’s application for access. No further inquiries regarding this part of the complaint are therefore necessary. The complainant could consider submitting a new complaint to the Ombudsman if he is dissatisfied with the outcome of the new application for access to documents which he has stated that he will make.

4 Conclusion

Following the Ombudsman's initiative, it appears that no further inquiries are necessary as regards the complainant’s first and third allegations and that, as regards the second allegation, a friendly solution to the complaint has been agreed between the Commission and the complainant. The Ombudsman therefore closes the case.

Enclosed with this decision, the complainant will find a copy of the list of documents prepared by the Commission.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) 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, 2001 OJ L 145/43.

(2) 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, 2001 OJ L 145/43.

(3) "The institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards international relations."

(4)"As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint."

(5) “Mission Reports (from Geneva), (annotated) agendas, background papers, speaking notes, briefing notes, reports of meetings, correspondence (also with industry), notes to and from Commission representatives (also from different DGs), notes to committee 133 etc.”