Dear Ms E.,
On 7 July 1997 you made a complaint to the European Ombudsman concerning the Council of Ministers. You put forward that the Council's handling of and its decision on a proposal you had made for a database concerning the Brussels Convention constituted maladministration. You also alleged a lack of transparency.
On 13 July 1997 I forwarded the complaint to the Council of Ministers. The Council sent its opinion on 7 November 1997 and I forwarded it to you with an invitation to make observations if you so wished. On 23 December 1997 I received your first observations on the Council's comments. On 3 February 1998 I received your final observations.
I am now writing to let you know the results of the inquiries that have been made.

THE COMPLAINT

The background to the complaint is in summary the following: In 1992 the complainant contacted various EU officials and national ministers to draw their attention to the potential usefulness of setting up a centralised judgement registry database. According to the complainant, who is a barrister, a convention creating such a database would significantly improve the operation of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters. The convention would entail an obligation on national courts to communicate cases relating to the Brussels Convention to the database. The issue was subsequently discussed at the Council of Ministers which eventually decided not to set up a database.
The complainant put forward:
- that the Council's handling of the issue was inappropriate,
- that the Council's decision not to set up a centralised database appears to have been ill- founded, and
- that the Council did not keep her sufficiently informed of its discussions on the proposals submitted by her and that there was a lack of transparency.

THE INQUIRY

The Council's opinion
The Council observed that the complaint is partly aimed at the deliberations of Steering Group III which deals with judicial cooperation in civil and criminal matters. This Group operates under the so-called K.4 Committee which was set up under Article K.4 of the Treaty on European Union (the so-called "Third Pillar"). The Council also observed that Article 138e, which set up the European Ombudsman, is not explicitly mentioned in the list of provisions of the Treaty of the European Communities which are applicable within Third Pillar matters. As concerns the complainant's first two grievances, the Council therefore put forward that this Committee is not covered by the jurisdiction of the European Ombudsman.
However, given that the Brussels Convention bears a certain relation to the First Pillar, the Council gave its views on the substance of the complainant's first two grievances. Concerning the handling of the complainant's proposal, the Council stated that it is excluded from adopting proposals from private individuals. The reason for this is that the Treaty restricts the circle of bodies competent to submit proposals to the Council. The Council then explained that the proposal had been submitted twice to the Council by a national delegation and that the proposal had subsequently been discussed in the appropriate bodies of the Council. The Council explained the reasons which led a majority of national delegations to discard the proposal. The Council annexed to its opinion the positions of Member States which had put their position in writing. The Council also annexed the minutes of the meeting of Steering Group III during which the proposal was discussed.
On the allegation of lack of transparency, the Council stated that the complainant had been fully informed of the rules on public access to Council documents. However, according to the Council's records, the complainant had not made a formal request for access to documents.
The complainant's observations
The complainant maintained her allegations. She rejected the Council's view that the Ombudsman was not competent to investigate Third Pillar matters. She also maintained her claim that the Council's decision not to set up a centralised database appeared ill- founded. She asked the Ombudsman to investigate the grounds for the Council's conclusions.
The Council's observation that she had not made a formal request for documents was not rejected by the complainant.

THE DECISION

1. Firstly it shall be observed that Article 138e of the EC Treaty is not included in the list of provisions which are applicable to the Third Pillar. Secondly, it shall be observed that it follows from the case law of the Community Courts that public access to Third Pillar documents is not a Third Pillar matter(1).
The complainant's grievances concerning the handling of her proposal and the substance of the Council position on it
2. Having made these remarks and given the fact that the Council has replied on the substance of the complainant's grievances, the Ombudsman shall remark that there are no elements at hand indicating that the Council did not deal properly with the proposal. In fact, it appears that there has been no direct submission from the complainant to the Council. Therefore the Council did not fail to reply to correspondence from the complainant. It shall also be noted - as appears from the Council's opinion - that there is no legal entitlement for the citizen to set in motion a legislative procedure.
3. As concerns the merits of the Council's decision not to set up the proposed database relating to the Brussels Convention, it shall be noted that such a proposal has been discussed in the appropriate bodies of the Council. The reasons why the proposal was discarded by the majority of the national delegations has been disclosed to the complainant. As it is within the powers of the Council to make such a decision, there appears to have been no instance of maladministration.
Access to information
4. The rules on access to Council documents provide that citizens can make a request for documents by submitting a written application. This application must enable the identification of the documents required. In the present case the complainant had not made an application for access to documents. Furthermore, the Council has in its opinion to the Ombudsman given information and documentation to explain the reasons why the proposed database was discarded.

CONCLUSION

5. On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Council of Ministers. The Ombudsman has therefore decided to close the case.
The Secretary General of the Council will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

---

(1) Judgment of 17 June 1998 in case T-174/95, Svenska Journalistförbundet (Tidningen Journalisten) v Council, not yet reported.