Mr President,
On 7 April 1999, I wrote to inform you of an own-initiative inquiry into public access to documents held by those Community bodies, including the European Central Bank, which were established or which became operational after the closure of the European Ombudsman's earlier own-initiative inquiry on the same subject. On 22 April 1999, the ECB sent me its opinion. On 30 April 1999, I wrote again to ask you for further information and you replied on 1 June 1999. On 28 July 1999, I responded to your letter of 1 June 1999 and also informed you of my intention to close the inquiry when all the other bodies concerned had replied.
I am writing now to let you know the results of the own-initiative inquiry as regards the European Central Bank.

THE REASONS FOR THE INQUIRY

According to Article 195 EC, the European Ombudsman may conduct inquiries on his own initiative in relation to possible instances of maladministration in the activities of Community institutions and bodies.
In June 1996, the Ombudsman began an own-initiative inquiry (616/PUBAC/F/IJH) into public access to documents held by Community institutions and bodies other than the Council and the Commission, which had already adopted their own publicly available rules governing public access to their documents(1).
The predecessor of the European Central Bank (ECB), the European Monetary Institute (EMI), was included in the inquiry.
On 20 December 1996, the Ombudsman adopted a decision which considered that failure to adopt, and to make easily available to the public, rules governing public access to documents could constitute an instance of maladministration. The Ombudsman's decision included the following draft recommendations:

1 The institutions and bodies should adopt rules concerning public access to documents within three months;

2 The rules should apply to all documents that are not already covered by existing legal provisions allowing access or requiring confidentiality;

3 The rules should be made easily available to the public.

The detailed opinions which were subsequently sent to the Ombudsman, in accordance with Article 3 (6) of the Statute of the Ombudsman, showed that nearly all of the institutions and bodies had adopted rules governing public access to documents.
On 15 December 1997, the Ombudsman submitted a special report to the European Parliament, which adopted a Resolution congratulating the Ombudsman on the initiative and special report and welcoming the action in favour of transparency(2).
The Ombudsman is aware of a number of bodies, including the ECB as successor to the EMI, which became operational after the closure of his own-initiative inquiry 616/PUBAC/F/IJH. In April 1999, he began a further own-initiative inquiry into public access to documents held by such bodies(3).

THE INQUIRY

On 7 April 1999, the Ombudsman wrote to the President of the ECB to request information about its situation as regards public access to documents; whether it has adopted rules on the matter and if so whether the rules are easily available to the public.
The opinion of the European Central Bank
The ECB informed the Ombudsman that, on 3 November 1998, it adopted a decision concerning public access to documentation and the archives of the European Central Bank (ECB/1998/12). The ECB enclosed a copy of the decision and drew the Ombudsman's attention to the following part of its preamble:

"Whereas the European Ombudsman issued a Decision in the own initiative inquiry into public access to documents; whereas the recommendations of that Decision applied to the EMI only in relation to administrative documents; whereas the same limitations of the scope of application of the Decision are applicable to the ECB;"

The ECB also informed the Ombudsman that it had sent decision ECB/1998/12 to the Office for Official Publications with a view to publication in the Official Journal.
Further inquiries
The Ombudsman carefully examined the rules adopted by the ECB, which are based on those previously adopted by the EMI(4). The Ombudsman also noted that:

- unlike the Commission and Council rules on public access, the ECB's rules do not contain any express provision restricting the possibility of public access to documents of which it is not the author (the "authorship rule");

- the ECB's rules relate to "administrative documents", defined by Article 1.2 of ECB decision ECB/1998/12 to mean "any record… which relates to the actual organisation and functioning of the ECB";

- the limitation of the ECB's rules to "administrative documents" could have a similar effect in practice to the authorship rule, since a document of which the ECB is not the author seems unlikely to relate to the actual organisation and functioning of the ECB.

The Ombudsman is aware that the functions of the ECB are different from those of the EMI, in that the Governing Council of the ECB formulates the monetary policy of the Community.(5) He is also aware that the question of the availability of the minutes of ECB monetary policy meetings is a subject of public interest and discussion and therefore considers it important that European citizens should be clearly informed of the rules which would apply to any requests from the public for access to such minutes.
The Ombudsman therefore wrote again to the ECB, noting that Article 10.4 of the Statute of the ESCB/ECB provides that the proceedings of the meetings of the Governing Council of the ECB shall be confidential, but that the Governing Council may decide to make the outcome of its deliberations public. The Ombudsman also pointed out that although the preamble to the ECB's decision ECB/1998/12 refers to the above-mentioned Article 10.4 of the Statute of the ESCB/ECB, the Decision does not expressly state that it applies to the minutes of monetary policy meetings.
The Ombudsman therefore requested the ECB to clarify the rules which would apply to any requests from the public for access to such minutes.
The ECB's reply
In its reply, the ECB pointed out that the draft recommendations made to the EMI in the Ombudsman's previous own-initiative inquiry (616/PUBAC/F/IJH) concerned only administrative documents.
The ECB also stated that Article 10.4 of the Statute of the ESCB/ECB "defines the limits of transparency according to the Treaty, in particular establishing clearly the confidentiality of the proceedings."
As regards the scope of application of decision ECB/1998/12, the ECB referred to Article 1.1 of the decision which reads:

"the public shall have access to documentation and the archives of the ECB with regard to administrative documents in accordance with the provisions of this decision."

The ECB also referred to the definition of the term "administrative document" contained in Article 1 2 of decision ECB/1998/12 ("any record… which relates to the actual organisation and functioning of the ECB") and expressed the view that this "clearly does not include minutes of Governing Council meetings on monetary policy issues."
The ECB also informed the Ombudsman of the publication of decision ECB/1998/12 in the Official Journal.
The Ombudsman's response
The Ombudsman responded to the above reply from the ECB by addressing a further letter to the President of the ECB.
As regards the ECB's remarks concerning the Ombudsman's earlier own-initiative inquiry, the Ombudsman pointed out that, subsequent to the closure of that inquiry, the Court of First Instance has drawn a clear distinction between, on the one hand, questions of competence to review the legality of measures adopted and, on the other hand, competence in the matter of public access to those measures(6).
As regards the ECB's claim that Article 10.4 of the Statute of the ESCB/ECB "defines the limits of transparency according to the Treaty, in particular establishing clearly the confidentiality of the proceedings", the Ombudsman pointed out that in fact the Article expressly foresees the possibility that the Governing Council "may decide to make the outcome of its deliberations public."
As regards the ECB's claim that the definition of the term administrative document in its decision ECB/1998/12 ("any record… which relates to the actual organisation and functioning of the ECB") does not include minutes of Governing Council meetings on monetary policy issues, the Ombudsman made the following points:

"The Ombudsman is not aware of any other rules adopted by the ECB concerning public access to minutes of Governing Council meetings on monetary policy issues. In the absence of other rules, exclusion of such minutes from the ambit of the ECB's decision of 3 November 1998 would appear to operate as an exception to the general principle, referred to in [decision ECB/1998/12] of giving citizens the greatest possible access to information.

The Ombudsman notes that the Decisions of the Council and the Commission on public access to documents create rights of access to the documents of those institutions and that the correct interpretation of those Decisions is a matter of law, on which the highest authority is the Court of Justice. The Ombudsman also notes the recent case-law which establishes that, where a general principle is established and exceptions to that principle are laid down, those exceptions must be construed and applied strictly, so as not to frustrate the application of the general principle(7).

It does not seem obvious in this context that the minutes of Governing Council meetings on monetary policy issues could be considered to fall outside the category of documents "related to the functioning of the ECB." The ECB's Decision of 3 November 1998 should therefore, in the light of the above-mentioned case-law, also be considered to apply to minutes of Governing Council meetings on monetary policy issues."

The Ombudsman concluded by pointing out that it is for the Bank to apply its rules, including the exceptions provided for in Article 4 of its decision ECB/1998/12, to such requests as it may receive from the public for access to documents.

THE DECISION

1 The adoption of rules on public access to documents
1.1 The Ombudsman informed the European Central Bank of his draft recommendations, made in a previous own-initiative inquiry, that Community institutions and bodies should adopt rules concerning public access to documents. In reply, the ECB informed the Ombudsman of its decision ECB/1998/12 of 3 November 1998 concerning public access to documentation and the archives of the European Central Bank.
1.2 The Ombudsman is aware of the case-law establishing that, where a general principle is established and exceptions to that principle are laid down, those exceptions must be construed and applied strictly, so as not to frustrate the application of the general principle(8). The Ombudsman considers that, in the light of the above-mentioned case-law, ECB decision ECB/1998/12 should be considered also to apply to the minutes of meetings on monetary policy issues. Naturally it is for the Bank to apply its decision ECB/1998/12, including the exceptions provided for in its Article 4, to such requests as it may receive from the public for access to documents.
1.3 There is therefore no evidence of maladministration by the ECB in relation to the adoption of rules on public access to documents.
2 Making the rules easily available to the public
2.1 The Ombudsman informed the European Central Bank of a draft recommendation, made in a previous own-initiative inquiry, that rules on access to documents should be made easily available to the public.
2.2 The ECB informed the Ombudsman that its decision ECB/1998/12 is published in the Official Journal of 28 April 1999, L 110 p. 30.
2.3 There is therefore no evidence of maladministration by the ECB in relation to making its rules on access to documents easily available to the public.
Conclusion

In view of the above, there appears to be no maladministration by the European Central Bank. The Ombudsman therefore closes own-initiative inquiry OI/1/99/IJH as regards the ECB.

Yours sincerely
Jacob Söderman

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(1) Council and Commission joint Code of Conduct (OJ 1993 L 340/ 41); Council Decision of 20 December 1993 on public access to Council documents (OJ 1993 L 340/43); Commission Decision of 8 February 1994 on public access to Commission documents (OJ 1994 L 46/58).

(2) OJ 1998 C 292/170; A4-0265/98.

(3) The full list of bodies covered by OI/1/99/IJH is:
The Community Plant Variety Office
The European Agency for Safety and Health at Work
The European Central Bank
Europol

(4) 1998 OJ L 90/43.

(5) Article 12.1 of the Statute of the ESCB/ECB.

(6) Case T-174/95, Svenska Journalistförbundet v Council [1998] ECR II-2289.

(7) Case T-105/95 WWF UK v Commission [1997] ECR II-313; Case T-124/96 Interporc v Commission [1998] ECR II-231; Case T-188/97 Rothmans International v Commission, judgement of 19 July 1999.

(8) Case T-105/95 WWF UK v Commission [1997] ECR II-313; Case T-124/96 Interporc v Commission [1998] ECR II-231; Case T-188/97 Rothmans International v Commission, judgement of 19 July 1999.