Dear Ms H.,

On 8 April 2002, you made a complaint to the European Ombudsman against the Council of the European Union, concerning the outcome of your confirmatory application to the Council under Regulation 1049/2001 for access to a number of documents concerned with the modernisation of EU competition procedures.

On 30 April 2002, I forwarded the complaint to the Secretary General and High Representative of the Council, Mr Javier SOLANA. The Council sent its opinion on 15 July 2002. I forwarded the Council's opinion to you with an invitation to make observations, which you sent on 11 August 2002.

On 11 September 2002, I wrote to the Council forwarding your observations and announcing that my services would carry out an inspection of the documents concerned. On 9 October 2002, my services carried out the inspection. On 16 October 2002, I wrote to the Council requesting further information. On the same day, I informed you of the inspection and the request to the Council for further information. You replied by letter dated 26 October 2002.

By letter dated 19 December 2002, which arrived in this office on 8 January 2003, the Council replied to my request for further information. On 13 January 2003, I forwarded the Council's reply to you with an invitation to make observations, which you sent on 15 January 2003.

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

THE COMPLAINT

On 28 January 2002, the complainant made a confirmatory application to the Council, under Regulation 1049/2001(1), for access to a number of documents concerned with the modernisation of EU competition procedures. On 18 March 2002, the Council replied to the confirmatory application, giving only partial access.

The Council justified its decision to refuse access to certain parts of the documents by reference to the first paragraph of Article 4 (3) of Regulation 1049/2001(2). According to the Council, the interest in protecting its decision-making process outweighs, on balance, the public interest in disclosure with regard to the delegations' positions recorded in the documents. The Council reasoned its conclusion as follows:

"In the context of preliminary discussions and negotiations within the Council's preparatory bodies, the possibility for delegations to express their views freely even on politically sensitive issues constitutes an essential pre-condition for the Council's capacity to find compromise solutions and achieve progress on difficult questions. The release, at the present stage, of those parts of the documents which make it possible to identify individual delegations' positions on particular subject matters which are still under discussion would jeopardise this capacity, as it could considerably reduce the flexibility of delegations to re-consider their respective positions in the light of the arguments exchanged in the debate. In the Council's view, this could seriously undermine its decision-making process."

The Council stated that partial access enables the applicant to be informed of the majority of the arguments exchanged in the course of the discussions on a legislative proposal which is currently being examined within the Council.

In her complaint to the Ombudsman, the complainant accepted the Council's reasoning for concealing the delegations' identities, without prejudice to a possible future argument that the delegations' identities, as well as their arguments should be revealed. According to the complainant, however, the Council has, in most cases, deleted any position taken by an identified delegation in its entirety. The complainant argues that the deletions made by the Council are excessive and have deprived some of the documents of meaning. In particular, contrary to what is stated in the Council's reply, they fail to inform the reader of the majority of the arguments exchanged in the course of the discussions. According to the complainant, the Council should disclose all the arguments, ideas and propositions contained in the documents, with the relevant delegation's name blanked out if need be.

Moreover, the complainant points out that two of the documents to which she was given partial access are Commission working documents, submitted to the Council Working Party on Competition, concerning the Commission's proposal for a Council Regulation on the implementation of the rules on competition. According to the complainant, the closing sections of both documents have been deleted in their entirety. The complainant argues that if the Commission prepared these documents as general background to the proposal, the confidentiality of the Council's discussions can have no relevance to their disclosure in full. On the other hand, if the documents were prepared after the Council's discussions began and in response to positions taken by one or more delegations, they should be disclosed nevertheless.

According to the complainant, sufficient legislative formality attaches to a published Commission proposal to warrant disclosure of the reasoning behind any subsequent Council-Commission dialogue. Once the public knows the content of the proposal, an understanding of the difficulties in carrying it through to enactment is important. If a text emerges from the Council with unexplained changes of substance, public confidence in the end product will be undermined and suspicion will be cast on the Council's methods.

Finally, the complainant alleges that the Council's online register of documents lacks the detail needed to reveal whether a particular document is likely to be of interest, leading to excessive requests for disclosure and a waste of time for both the Council and the applicant. As an example, the complainant mentions that all the working party reports in this case bear only the title of the Commission's proposal.

In summary, therefore, the complainant alleges that:

(i) In granting only partial access, the Council has deleted more material than justified by its reasoning concerning the need to maintain confidentiality of individual delegations' positions on particular subject matters which are still under discussion;

(ii) The Council's reasoning does not justify its deletions of material from certain Commission working documents;

(iii) the Council's online register of documents contains inadequate information.

The complainant claims full, or greater, access to 13 documents: 12241/00, 10022/01, 13798/00, 13563/01, 5158/01, 12290/00, 12856/00, 13385/00, 5843/01, 6024/01, 6622/01, 6834/01, 7692/01.

THE INQUIRY

The Council's opinion

In summary, the Council's opinion made the following points:

As regards the first allegation, the Council agrees in principle that documents relating to ongoing discussions on draft legislative acts should be as widely accessible as is possible and that one way to achieve this objective is to disclose most or all of the arguments which have been exchanged in the course of the discussions, while withholding only those parts of the documents which allow the identification of the delegations which defended those positions. This gives the delegations concerned the necessary flexibility to alter their positions in the light of the ongoing discussion, which constitutes a pre-condition for achieving progress on difficult questions. The Council has followed this practice on a number of occasions since the entry into force of Regulation 1049/2001.

However, the specific circumstances in this case justify a more cautious approach. The proposal in question raises a number of extremely delicate and contentious issues which are still the subject of difficult negotiations within the Council at a political level. In those circumstances, the premature release of the content of preliminary positions which were taken by the delegates of the Council members and the Commission representatives in the meetings and which, for an expert, may be easily attributable even in the absence of clear identification, can be prejudicial to the institution's capacity to find compromise solutions on those issues and thereby thwart its efforts to reach overall agreement on an important legislative text.

Document 13563/01 contains a Presidency compromise text on the proposed Regulation. Parts of this compromise text have been released, but other parts which concern particularly contentious and controversial issues have been withheld for similar reasons as those referred to above. A compromise proposal only has a chance of being accepted if each delegation is prepared to make concessions from its initial positions. Disclosure of a compromise proposal on particularly delicate matters, whilst it is still being examined by the members of the Council and their delegates and the Commission would thwart its very purpose.

As regards the second allegation, the Council argued that the Commission documents concerned are non-papers prepared by the Commission services for discussion in the Council working group, designed to clarify certain issues relating to the Commission proposal, which had neither been approved by the Commission at the level of the college of Commissioners nor were intended to commit it. The deletions from these documents are justified by the same reasoning as those made from the Council documents concerned.

As regards the third allegation, the Council argued that by clicking on the icon "document information" in the public register of documents on the Internet, the user obtains access to all the information which appears on the head of the document, including its originator, its addressee and the description of the document category, as well as its subject matter. However, the Council is prepared to examine the possibility of increasing the user-friendliness of the public register.

The Council also supplied the Ombudsman with a copy of the documents as supplied to the complainant.

The complainant's observations

As regards the first allegation, the complainant argued that the Council's opinion treats the enactment of EU legislation as it would the negotiation of an international treaty, where concessions are traded for points in the national interest. According to the complainant, this approach is inappropriate for enactment of legislation that is directly binding on the public. Furthermore, the Council's debate is not the equivalent of a ministerial or cabinet meeting at which odd and possibly unacceptable ideas are put forward among individuals. By the time a proposal gets to the Council, the Commission has already put the proposal in the public domain and the Council acts as a legislator. For the text of generally binding laws to be kept secret until the content is fixed seems an extreme remedy for a problem that could be managed by deletion of delegations' names.

As regards the second allegation, the complainant stated that she is willing to accept that Commission working documents prepared as contributions to the Council debate should be treated in the same way as Council documents.

As regards the third allegation, the complainant stated that her remarks had been intended to be helpful and that she did not wish to pursue the issue. She also made a number of suggestions to enhance what she referred to as this "uniquely valuable source of information."

Further inquiries

After careful consideration of the Council's opinion and the complainant's observations, the Ombudsman considered it necessary to inspect the documents concerned in order to evaluate the extent and nature of the deletions.

The inspection

The inspection was carried out by the Ombudsman's services on 9 October 2002. The Ombudsman subsequently wrote to thank the Council for its good co-operation during the inspection and inform it of the Ombudsman's findings.

The Ombudsman first recalled the positions of the Council and complainant as stated in the Council's opinion and the complainant's observations. The Ombudsman noted that the Council's justification of the deletions appears to be that release of the deleted parts of the documents could enable someone, possibly an expert, to identify the positions of delegations, or of the Commission representative, on matters under discussion in the Council. The complainant accepts that the Council can keep the names of delegations confidential, and that Commission working documents prepared as contributions to the Council debate should be treated in the same way. The Ombudsman therefore sought to verify from inspection of the documents whether the material that had been deleted by the Council could allow someone, possibly an expert, to identify the positions of delegations, or of the Commission representative, on matters under discussion in the Council.

The Ombudsman then stated the results of his inspection, as follows:

References to named delegations or to the Commission representative

In the documents inspected, references to named delegations or to the Commission representative normally take one of three forms: (i) a footnote (ii) a bracketed reference in the text or (iii) an introductory phrase such as "The (xx ) delegation expressed the view...", or "The (xx ) delegation considered that."

All footnote references to named delegations appear to have been deleted, whilst in most cases the corresponding text has been released. In general, the deleted footnotes contain no information other than the identity of the delegation and the fact that it proposed, agreed or disagreed with, or made a reservation concerning, the position stated in the text. An exception is the footnote on page 3 of document 1224/01. Except for this one case, the Council's deletions of footnotes appear to be the minimum necessary to conceal the identities of delegations.

In most cases where references to named delegations are in form (ii) or (iii), the entire paragraph concerned has been deleted. In contrast, paragraphs 19, 33, 44, 50-51, 69 of document 13385/00 have been released in their entirety without deleting the references to named delegations and/or the Commission representative. There appear to be no cases, however, where the Council has deleted only the reference to the delegation and/or the Commission representative and released the rest of the text.

There is only one case in which the Ombudsman can confirm that the rest of the text of a deleted paragraph in this category might allow the identity of the delegation concerned to be inferred: paragraph 36 of document 13385/00.

Deleted material which does not contain references to named delegations or to the Commission representative

The Council has deleted certain sections of documents, paragraphs and parts of paragraphs that contain no reference to named delegations, or to the Commission representative. Some, though not all, of these paragraphs contain phrases such as "some delegations expressed the view." or "delegations expressed the view.". In certain other cases, the deleted material consists of Presidency compromise proposals.

The Ombudsman cannot confirm that any of the deleted material in this category would enable the views of a specific delegation or delegations, or of the Commission representative to be identified. Although the Council refers to the possibility of an expert making such an identification, this appears unlikely given the nature of the deleted material.

Conclusions

On the basis of the inspection, the Ombudsman considers that deletion of at least the following material does not appear to be justified by the reasoning that its release could enable someone, possibly an expert, to identify the positions of delegations, or of the Commission representative, on matters under discussion in the Council.

Document 1224/01: footnote on page 3 (except for name of delegation); paragraphs 17-21, 23-27.

Document 10022/01: pages 29-36 (tables containing a factual comparison of main competition law provisions in Member States with Arts 81-82 EC).

Document 13798/00: paragraphs 5-8, 9-10 (partial deletions), 14-15.

Document 12856/00: paragraphs 2, 3 (partial deletion).

Document 13385/00: paragraph 2.

Document 5843/01: paragraphs 4, 5.

Document 6024/01: paragraphs 4, 5.

Document 6622/01: paragraphs 3, 10, 11.

Document 7692/01: paragraphs 12-18 and annex.

Document 6834/01: paragraphs 3 (partial deletion), 6, 8, 10.

Document 13563/01 falls into two parts: a progress report and Annexes. On the basis of the inspection, the Ombudsman considers that paragraphs 6, 8, 10-12, 19-20 and 22 could also be released without enabling anyone to identify the views of a specific delegation or delegations, or of the Commission representative. In Annex II to Document 13563/01 (the Presidency compromise text for a Regulation), there seems to be no basis to distinguish between those parts of the text (excluding footnotes) which have been released and those parts which have been deleted, other than that the latter deal with subjects that are considered politically more delicate. Release of the deleted text (excluding footnotes) could not, in the Ombudsman's view, enable anyone, even an expert, to identify the views of a specific delegation or delegations, or of the Commission representative. The same analysis also applies to the deletions in Document 5158/01, which contains an earlier proposal for the text of a Regulation.

The request for further information

In view of the above, the Ombudsman kindly requested the Council to re-examine its position in relation to the deleted material mentioned above and to inform him whether it would be prepared to release it to the complainant.

The Council's reply

In reply, the Council stated that it had reached political agreement on the draft Regulation concerned at its meeting on 26 November 2002. In the light of this progress, the Council considered that the complainant could now be given access to the documents concerned in their entirety.

The complainant's observations

In her observations, the complainant stated that the Council seems to have taken away the grounds for complaint by granting access to the documents concerned, but also expressed frustration at not having had access before the Regulation was adopted. The complainant thanked the Ombudsman for taking up the case on her behalf.

THE DECISION

1 Refusal of full access to certain documents

1.1 The Council gave the complainant only partial access to certain documents concerned with the modernisation of EU competition procedures. The complainant alleged that the Council deleted more material than was justified by its reasoning concerning the need to maintain confidentiality of individual delegations' positions on particular subject matters which are still under discussion. The complainant accepted that the Council may keep the names of delegations confidential, but argued that the content of the positions adopted should be released, together with other parts of the documents concerned.

1.2 The Council justified its decision to refuse access to certain parts of the documents by reference to the first paragraph of Article 4 (3) of Regulation 1049/2001(3). According to the Council, the proposal in question raises a number of extremely delicate and contentious issues which, at the time, were still the subject of difficult negotiations within the Council at a political level. In those circumstances, the premature release of the content of preliminary positions which were taken by the delegates of the Council members and the Commission representatives in the meetings and which, for an expert, may be easily attributable even in the absence of clear identification, could be prejudicial to the institution's capacity to find compromise solutions and thereby thwart its efforts to reach overall agreement on an important legislative text.

1.3 In view of the complainant's acceptance that the Council may keep the names of delegations confidential, the Ombudsman focused his inquiry on the question of whether the Council had deleted more material than was necessary for this purpose.

1.4 Following an inspection of the documents concerned, the Ombudsman formed the view that certain deletions could not be justified by the Council's reasoning. The Ombudsman informed the Council of his detailed findings and requested it to re-examine its position.

1.5 In reply, the Council stated that it had reached political agreement on the draft Regulation(4) concerned at its meeting on 26 November 2002. In the light of this progress, the Council considered that the complainant could now be given access to the documents concerned in their entirety.

1.6 In observations on the Council's reply, the complainant expressed frustration at not having had access before the Regulation was adopted. The Ombudsman therefore considers that it is necessary to make a finding on the complainant's allegation of maladministration against the Council.

1.7 The Ombudsman inspected the documents to which the Council had given the complainant only partial access. The Ombudsman considers that the Council's reasoning that release of the deleted material could enable someone to identify the positions of delegations, or of the Commission representative, on matters under discussion in the Council fails to justify many of the deletions that were made. This was an instance of maladministration and the Ombudsman makes a critical remark accordingly.

1.8 The Ombudsman considers it unnecessary for him to take any further action, since the Council has now given the complainant access to the documents concerned in their entirety, following its agreement on the draft Regulation concerned at its meeting on 26 November 2002.

2 Access to Commission working documents

2.1 The complainant alleged that the Council's reasoning does not justify its deletions of material from certain Commission working documents. The Ombudsman recalls that he has made a critical remark concerning the extent of the deletions made from the documents concerned. This aspect of the complainant thus concerns only whether the Council's reasoning could have any application to Commission working documents.

2.2 The Council argued that the Commission documents concerned are non-papers prepared for discussion in the Council working group, which had neither been approved by the Commission at the level of the college of Commissioners nor were intended to commit it.

2.3 In her observations, the complainant stated that she is willing to accept that Commission working documents prepared as contributions to the Council debate should be treated in the same way as Council documents. The complainant therefore appears to have dropped this aspect of the complaint.

3 The Council's online register of documents

3.1 The complainant alleged that the Council's online register of documents contains inadequate information.

3.2 The Council argued that information about the originator and addressee of each document and a description of its category can be easily obtained through its online register of documents. The Council is prepared to examine the possibility of increasing the user-friendliness of the public register.

3.3 In her observations, the complainant stated that her remarks had been intended to be helpful and that she did not wish to pursue the issue. She also made a number of suggestions to enhance what she called this "uniquely valuable source of information." The Ombudsman forwarded the complainant's suggestions to the Council, for information.

3.4 In the light of the above, the Ombudsman considers that there is no maladministration in relation to this aspect of the complaint.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The Ombudsman inspected the documents to which the Council had given the complainant only partial access. The Ombudsman considers that the Council's reasoning that release of the deleted material could enable someone to identify the positions of delegations, or of the Commission representative, on matters under discussion in the Council fails to justify many of the deletions that were made. This was an instance of maladministration.

The Ombudsman considers it unnecessary for him to take any further action, since the Council has now given the complainant access to the documents concerned in their entirety, following its agreement on the draft Regulation concerned at its meeting on 26 November 2002. The Ombudsman therefore closes the case.

The Secretary General and High Representative of the Council of the European Union will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) 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.

(2) "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

(3) "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

(4) The Council adopted the Regulation on 16 December 2002: Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, 2003 OJ L1/1.