Dear Mr P.,
On 4 July 1997, you submitted a complaint to the Ombudsman containing two claims of maladministration by the European Commission.
The first claim was that the Commission's rules on public access to documents also apply to documents of certain committees which are involved in the Commission's implementation of Council legislation - so-called comitology committees - and that the Commission should not therefore automatically refuse to give access to such documents.
The second claim concerns the lack of a register for Commission documents. You alleged that failure to establish such a register amounts to maladministration because it severely restricts citizens' ability to make use of the rules on access to documents, laid down in Commission Decision 94/40, according to which the public shall have the widest possible access to Commission documents.

THE DECISION AND DRAFT RECOMMENDATION OF 29 JANUARY 1999

By decision dated 29 January 1999, the Ombudsman concluded that no further inquiries into the first claim were justified, because the issue of access to comitology documents was before the Court of First Instance in a pending case, T-188/97 Rothmans International v Commission.
In reaching this decision, the Ombudsman took into account that, although the complainant is not a party in the Rothmans case, his complaint does not concern any particular comitology documents, but rather the general question of whether the Commission's rules on public access apply to such documents. It appeared that this issue would fall to be determined by the Court of First Instance in dealing with the Rothmans case.
As regards the second claim, the Ombudsman addressed the following draft recommendation to the Commission in accordance with Article 3 (6) of the Statute of the Ombudsman(1).

The Commission should keep a public register of documents it holds.

Full details of the inquiry and the justification of the draft recommendation are provided in the decision dated 29 January 1999, a copy of which was forwarded to the complainant.

THE COMMISSION'S DETAILED OPINION ON THE DRAFT RECOMMENDATION

The Ombudsman informed the Commission that, according to Article 3 (6) of the Statute, it should send a detailed opinion before 30 April 1999 and that the detailed opinion could consist of acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.
On 30 April 1999, the Commission sent to the Ombudsman the following detailed opinion:

The Commission shares the view of both Mr P. and the Ombudsman that the creation of a register of documents would give the public an indication of the documents that exist to which it can request access. It would also facilitate document search and increase the public impact of the policy on access to documents.

The Commission also believes that registers are an important way of informing the public about the institutions' activities and work in progress. Another useful tool in this respect has been the creation of the EUROPA server on the Internet. There is scope for developing this system further.

However, it is important to stress that the systems currently used by the Commission for registering documents are designed for administering incoming and outgoing mail and are not organised with a view to external distribution. Moreover, there is currently no uniform system of registering and archiving Commission documents. Document registration is completely decentralised and is the responsibility of each directorate-general and service.

As part of the implementation of Article 255 of the EC Treaty, which deals with access to documents, the Commission is studying the possibility of creating a public register which would in the first instance list documents in the categories most commonly requested, according to our statistics. Evidently, access would not be limited only to those documents included in the register, as this would be too restrictive.

The question of the creation of a register and the scope of its coverage will have to be put before the Commission in connection with the implementation of Article 255. In this context the Commission may also consider a revision of its registration system.

THE COMPLAINANT'S OBSERVATIONS

The detailed opinion was forwarded to the complainant who responded that he did not regard it as satisfactory because it does not provide an unambiguous commitment to compile and maintain a register. He also mentioned that, at a conference in April 1999, a Commission official had refused the prospect of the Commission establishing a register. Finally he considered that the Commission's suggestion that it might begin with a register of documents which are frequently requested overlooks the possibility that the public would request many other important documents if only they came to its attention.

THE DECISION

1 Comitology documents
1.1 The complainant claimed that Commission Decision 94/90(2) on public access to documents also applies to documents of certain committees which are involved in the Commission's implementation of Council legislation - so-called comitology committees - and that the Commission should not therefore automatically refuse to give access to such documents.
1.2 By decision dated 29 January 1999, the Ombudsman concluded that no further inquiries into this claim were justified, because the issue of access to comitology documents was before the Court of First Instance in a pending case, T-188/97 Rothmans International v Commission. In reaching this decision, the Ombudsman took into account that, although the complainant is not a party in the Rothmans case, his complaint does not concern any particular comitology documents, but rather the general question of whether the Commission's rules on public access apply to such documents. It appeared that this issue would fall to be determined by the Court of First Instance in dealing with the Rothmans case.
1.3 On 19 July 1999, the Court of First Instance delivered judgement in the Rothmans case(3). It held that, for the purposes of the Community rules on access to documents, comitology committees come under the Commission itself. It is therefore the Commission which is responsible for ruling on applications for access to documents of those committees under Decision 94/90.
1.4 It therefore appears that the Court of First Instance has dealt with the question of principle, in a way which supports the claim made by the complainant.
2 A Register of Commission documents
2.1 On 29 January 1999, the Ombudsman addressed the following draft recommendation to the Commission:

The Commission should keep a public register of documents it holds.

2.2 On 30 April 1999, the Commission responded with a detailed opinion which accepts the principle of a register of documents giving the public an indication of the documents that exist to which it can request access. The detailed opinion also identifies practical issues which must be dealt with before a register could be established.
2.3 Although the complainant does not consider the Commission's response to be satisfactory, the Ombudsman accepts that the Commission needs adequate time in which to deal with the practical issues involved in establishing a register of all the documents that exist to which the public can request access. The Ombudsman also notes in this context that the judgement of the Court of First Instance in Rothmans International v Commission(4) confirms that the Commission must also deal under Decision 94/90 with requests for public access to comitology documents. The Commission should therefore also include such documents in its register.
2.4 The Ombudsman notes with regret that the drafting of the Regulation foreseen by Article 255 of the EC Treaty, which establishes a Treaty right for citizens to have access to documents of the European Parliament, Council and Commission, has been delayed by the resignation of the Commission. However, in view of paragraph 2.3 above, the Ombudsman considers it reasonable for the Commission to propose to implement the principle of a register of documents as part of its implementation of Article 255 EC.
2.5 The Ombudsman therefore considers that the Commission has responded satisfactorily to the draft recommendation and closes the case.
The President of the Commission will also be informed of this decision.
Yours sincerely
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 113/15.

(2) Commission Decision of 8 February 1994 on public access to Commission documents OJ 1994, L46/58.

(3) Case T-188/97 Rothmans International v Commission, judgement of 19 July 1999.

(4) See note above.