Mr Chairman!
Thank you for inviting me to take part in this seminar, "Access to documents of the EU institutions: the key to a more democratic and efficient Union", organised by the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs. I am delighted to contribute to your important deliberations on this subject.

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1 OPENNESS AND DEMOCRACY

You have asked me to speak about good administration and the impact of openness on the internal functioning of the institutions. I firmly believe that openness promotes good administration. As I see it, openness is also an essential part of democracy and in a democracy, the citizens must be able to inform themselves about what the public authorities are doing and why.
In the past months, mainly due to the efforts of the European Parliament and its committees, there has been a valuable public debate on the citizens' right of access to EU documents. I believe that we are now in the final stages of the legislative procedure.
I would like to congratulate Mrs Maij-Weggen and Mr Cashman, in particular, for their effective and fruitful co-operation, which has produced a good basis for a successful result.
During my time as European Ombudsman, there has been a steady improvement in the way the Council and the Commission have administered the rules which they jointly adopted in 1994. They have learnt how to deal with applications more effectively and more promptly and the proportion of successful applications has increased.
Furthermore, the case-law of the Courts concerning the interpretation of the Council's and the Commission's rules has been of immense importance in clarifying and sustaining the citizens' right of access to documents.
Despite this learning process, public access to documents remains a new and unfamiliar concept for people who lack experience of it on the national level. The most frequent concern is that greater openness will harm the efficiency of the administration. I believe the opposite.

2 GOOD ADMINISTRATION

Mr Chairman!
In the modern world, the citizen's affairs should be dealt with correctly, fairly and promptly by an open, accountable and service-minded public administration. This is what good administration means. Efficiency in the service of the citizen is therefore an integral part of good administration.
Openness promotes rather than hinders efficiency. Take, for example, the duty to maintain a public register of documents. For my part, I do not understand how an administration can function without a register of the documents which it has drawn up and of those which it has received. The public nature of the register is not only essential for openness, but also a stimulus to keep it up-to-date and in good order.
Another example from the work of the European Ombudsman is the recruitment procedure for the European institutions. The Ombudsman recommended and the Commission has accepted that participants in a recruitment procedure should have the right to see their own marked tests. The exercise of this right will surely underline the accuracy of the marking.
Another important example is the Commission's activities in dealing with infringements of Community law. To my mind, the Guardian of the Treaty could be more effective if it worked in public, whenever possible. Most infringement proceedings are the result of complaints from European citizens. Many citizens who complained to the Commission have subsequently complained to the European Ombudsman because they feel more or less excluded from the Commission's procedure for dealing with their complaint. Above all, they find the administrative stage, where the Commission is investigating the matter, cumbersome and secretive. In fact, they complain that they do not know what is going on.
In the European Union, the rule of law should not only prevail, but also be seen to prevail. Therefore the new exception which the Commission has proposed for the preparatory stages of infringement proceedings is a step backwards. If the administrative stage of the infringement procedure were public, it is likely that the Member States would adjust their behaviour more rapidly to fulfil the requirements of the law. At present, when the infringement procedure in many cases goes on behind closed doors, the Commission often gets the blame for delay which is the fault of the Member State. Moreover, in some cases the citizen gets the impression that the procedure is dropped for the wrong reasons.
As a society governed by the rule of law, the European Union could only benefit from these procedures being as public as possible. In any event, the complainant should have access to the relevant documents, as a party in the administrative proceedings up to the point where the Commission, within its legal authority, decides whether to refer an infringement to the Court of Justice.

2.1 Space to think

Mr Chairman!
Openness does not mean that administrative work should be carried out entirely in public. In order to function effectively, every administration needs to carry out internal preparatory work before putting a matter into the public domain. For example, a policy proposal may begin life as a few words on a piece of paper, or in electronic form and go through many drafts before it is ready to be presented as a proposal. It is important that those carrying out this preparatory work should have the possibility of an informal exchange of ideas and criticism.
This is now commonly referred to as "space to think". Once the organisation has had time to think, the document which contains the results of its thinking should be included in a public register. The key moment is when the document is either formally adopted in some way, or when it is transmitted outside the boundaries of the organisational space in which it has been drafted.
Therefore, it is necessary to decide what counts as a separate space. In the case of the Commission, it seems natural to regard at least the different Directorates General as separate for this purpose, because they are similar to the different ministries in a national system of government. Messages, drafts and discussion papers which are kept inside should not all have to be registered. However, when a document is sent outside, it should always be registered.
Furthermore, the documents on which a published decision or proposal is based should be made public, at the same time as the decision or proposal itself. For example, if a legislative proposal or a decision relies on an opinion given by a particular service, the opinion should be made publicly available when the legislative proposal is published. Otherwise, the proposal or decision cannot be properly evaluated.

3 THE WAY FORWARD

3.1 Prior classification as the key to good administration of rules on public access to documents.

Mr Chairman!
I am convinced that the key to good administration of the rules on public access is a system of prior classification, in which the decision as to whether or not a document is in the public domain is made when the document is established, not when the citizen asks for it. This system means that requests for access to documents can be dealt with promptly. The public access regime can then be the normal method by which citizens obtain access.
To ensure that a system of prior classification works properly to guarantee the citizen's right of access to documents, two additional elements are essential. First, there must be a public register of all documents, including also those which are not in the public domain. Second, citizens must have the right to seek an independent review, by the courts or the Ombudsman.

3.2 Other institutions and bodies

Mr Chairman!
The legal basis of the Regulation under debate is Article 255 of the EC Treaty, which refers specifically to documents of the European Parliament, Council and Commission. From the citizens' point of view, however, it is important that all Community institutions and bodies apply the same principles in their rules on public access to documents. In this context, it should be remembered that the Court of Justice stated in the case of Netherlands v Council(1)
that

"So long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organization, which authorizes them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration."

Following own-initiative inquiries by the European Ombudsman, almost all the Community institutions and bodies, including the European Central Bank, the European Investment Bank and Europol have already shown a responsible attitude by adopting and publishing rules on public access to documents. Most of these rules follow closely the principles in the Council and Commission rules.
It seems obvious that when the Regulation under Article 255 comes into force, all the other Community institutions and bodies should, as a matter of good administration, review their rules and bring them into line with the principles in the Regulation. It could be helpful if the Regulation were to point out this obligation.(1)

3.3 The proposals for information officers and an Information Supervisor

Mr Chairman!
The idea of an information officer in each of the institutions seems appropriate and useful. However, it does not seem wise to combine this function with that of data protection officer, since data protection is primarily concerned with justifiable confidentiality to protect the individual's right to privacy rather than the promotion of openness.
I hope, Mr Chairman, that you will forgive a brief digression on this important topic. The Data Protection Directive is unfortunately proving to be quite confusing and potentially harmful to openness in those Member States where the process of implementation is most advanced. This issue should be examined urgently, but in another forum than this.
A proposal has also been made to establish an Information Supervisor, to deal with appeals and carry out some advisory tasks.
In the six years of operation of the existing rules, the Community Courts have had to deal with only a dozen or so cases on access to documents and the European Ombudsman with 30 or so. If the system of prior classification is adopted, as it should be, the operation of the rules on public access should be prompt and efficient. It therefore seems doubtful whether one could justify the extra expense required to establish a new office, especially since the Information Supervisor would duplicate the role of the European Ombudsman in dealing with citizen's complaints.
Mr Chairman!
In conclusion, I would like to emphasise how important it is for democracy in the European Union that the debate on openness ends up in a good and workable solution on public access to documents.
In the five years that I have been working with the European Union administration, the Community institutions and bodies have mostly proved to be co-operative and anxious to do their best to serve the European citizens. It is difficult for me to understand why anybody should want to hide this good work by insisting on unnecessary secrecy.
I wish the Committee on Citizens' Freedoms and Rights and the other committees of the European Parliament dealing with this matter every success in their important work.
Thank you for your attention.

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(1) Case C-58/94 [1996] ECR I-2169

(2) Possible wording could be, "Whereas the principles laid down in this Regulation should also apply to the rules on public access to documents adopted by other Community institutions and bodies in order to ensure their internal operation in conformity with the interests of good administration."