(Made in accordance with Article 3 (6) of the Statute of the Ombudsman(1)).

THE COMPLAINT

On 4 July 1997, Mr P. submitted a complaint to the European Ombudsman, alleging two instances of maladministration.
The complainant alleged firstly that the Commission was acting unlawfully by imposing automatic confidentiality on documents relating to certain committees which are involved in the Commission's implementation of Council legislation, so-called comitology committees. The complainant claimed that the documents are in fact covered by the Commission's rules on public access to documents and therefore, automatic confidentiality of such documents was unlawful.
The complainant's second grievance concerned the lack of a register for Commission documents. He put forward that failure to establish such a register amounted 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 and according to which the public shall have the widest possible access to Commission documents.

THE INQUIRY

The Commission's opinion
As concerns the complainant's first grievance, the Commission stated in summary that the committees in question could not be considered to be Commission committees, as the members of the committees were national representatives. Thus documents relating to the committees could not be considered to be Commission documents covered by the Commission Decision on public access to documents. The Commission also observed that the question of the status of documents relating to comitology procedures was the subject of pending court pleadings in case T-188/97, Rothmans v Commission.
As concerns the complainant's second grievance, the Commission stated that the Commission does not have an "official" document register which is open to the public. However, the Commission expressed understanding for the complainant's view that it is difficult for the public to gain access to documents if their existence is not known. The Commission would therefore study the proposal to introduce document registers, when implementing Article 191a of the EC Treaty as amended by the Treaty of Amsterdam.
The complainant's observations
In his observations, the complainant maintained his complaint. As concerns the pending court case, the complainant observed that he is not a party in that case.

FURTHER INQUIRIES

After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman considered it appropriate to request an opinion from the Council of Ministers. As it had appeared from the Commission's opinion that the Commission did not consider its own rules on public access applicable to the documents relating to the committees, the Ombudsman's request intended to clarify if the Council considered comitology documents covered by its own rules on access to documents.
The Council's opinion
In its reply to the Ombudsman, the Council stated in substance that the committees in question could not be considered to be Council committees and therefore, documents relating to the committees were not covered by Council Decision 93/731 on public access to Council documents. The Council added that normally it would not be physically in possession of the documents in question. The Council also drew the Ombudsman's attention to the pending pleadings in the Rothmans vs Commission case.
The complainant's observations
In his observations on the Council's opinion, the complainant maintained the complaint.

THE DECISION

1. Access to comitology documents
1.1 It shall be noted that the complainant has not requested access to particular comitology documents. The grievance raises the general question of whether it is possible to consider that comitology documents are covered by the Commission's rules on public access. This question appears to be the subject of the Rothmans v Commission case, pending before the Court of First Instance.
1.2 The grievance appears to stem from a concern about the transparency of comitology procedures. As the Office of the European Ombudsman was created to enhance the relations between European citizens and the Community institutions, the Ombudsman shares this concern.
1.3 Under these circumstances, and although the complainant is not a party in the pending court procedure, the Ombudsman finds that it is not justified to continue the inquiry into this grievance. The Community Courts constitute the highest authority on questions of Community law. The ruling of the Court of First Instance should give an authoritative answer to this grievance in due time.
Thus, the following draft recommendation solely concerns the complainant's second grievance.
2. Registers
2.1 A basic principle of good administration is that a public authority should maintain an adequate register of documents it holds including the incoming and outgoing documents it holds. Such a register helps ensure the consistency and continuity of the activities of the authority. A register also enhances the efficiency of the activities of the authority. Absence of a register could make it difficult to locate documents accurately and quickly. A register will also help ensuring that citizens get a timely reply to their submissions.
2.2 It is established case law that public access to documents forms part of the progressive affirmation of citizens' right to obtain knowledge of the information that a Community institution holds. The absence of a register of documents constitutes an obstacle to the exercise of this right; it is difficult for citizens to apply for access to documents whose existence they ignore. This obstacle may be removed by virtue of the institution's power of internal organization.
The fact that a document is included in the register does not automatically mean that the document is public. The register just enables citizens to lodge a request for access to a given document. It is then for the institution to decide upon that request, under its rules on public access and confidentiality. Thus, the creation of such a register does not hinder the institution in respecting the confidential nature of a document.
2.3 Against this background, the Ombudsman finds that the Commission's failure to keep a public register of documents constitutes an instance of maladministration. Given that the maladministration does not concern a matter only related to the complainant, it does not appear appropriate to seek a friendly solution under Article 3 (5) of the Statute of the European Ombudsman.
2.4 In accordance with Article 3 (6) of the Statute of the European Ombudsman, the Ombudsman therefore makes the following draft recommendation to the Commission:

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

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion before 30 April 1999. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.
Strasbourg, 29.01.1999
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.