PART 2: BACKGROUND
THE LEGISLATIVE HISTORY
7. Prior to 1994 there were no formal arrangements
enabling the citizen to obtain access to a document emanating
from one of the EU institutions. The general practice of the Commission
over a number of years was to make all documents available on
request unless they contained material, for example, that was
commercially confidential or related to an individual's privacy
or needed to be safeguarded to protect the Commission's semi-juridical
role (ie decisions against firms or Member States under
the competition rules and infringement proceedings against Member
The Council was in practice less forthcoming in making information
8. The 1990s saw both political and practical steps
to improve the transparency of the Community's legislative and
administrative procedures, particularly as regards access to documents.
Political action came first. The Treaty on European Union signed
at Maastricht on 7 February 1992 (the Maastricht Treaty) contained
a Declaration (No 17) on the right of access to information (
'Declaration No 17'), which stated:
'The Conference considers that transparency of the
decision-making process strengthens the democratic nature of the
institutions and the public's confidence in the administration.
The Conference accordingly recommends that the Commission submit
to the Council no later than 1993 a report on measures designed
to improve public access to the information available to the institutions.'
9. Subsequent European Councils endorsed the Member
States' commitment to openness. At the close of the European Council
in Birmingham on 16 October 1992, the Heads of State and of Government
issued a declaration entitled 'A Community close to its citizens',
in which they stressed the need to make the Community more open.
That commitment was reaffirmed by the European Council in Edinburgh
on 12 December 1992. The Commission responded positively. On 5
May 1993 the Commission addressed to the Council, the Parliament
and the Economic and Social Committee a Communication on public
access to the institutions' documents.
It contained the results of a comparative survey on public access
to documents in the Member States and some non-member countries,
and concluded that there was a case for developing further access
to documents at Community level. Soon afterwards, on 2 June 1993,
the Commission adopted a Communication on openness in the Community.
This set out certain basic principles governing access to documents.
At the European Council in Copenhagen on 22 June 1993, the Council
and the Commission were invited to 'continue their work based
on the principle of citizens' having the fullest possible access
10. Within the framework of these preliminary steps
towards implementing the principle of transparency, the Council
and the Commission approved on 6 December 1993 a Code of Conduct
concerning public access to Council and Commission documents
(the Code of Conduct), aimed at establishing the principles to
govern access to documents held by them. The Code forms the basis
of the current regime and, as will be seen, provides the starting
point from which the proposed Regulation may be examined.
11. It is noteworthy that the terms "transparency"
and "openness" seem to have been treated as interchangeable.
Similarly a clear distinction has not always be drawn between
"access to documents" and "access to information".
This can cause confusion. Our focus in this Report is on access
to documents, which we regard as an important aspect of access
to information. Access to information is in turn an essential
constituent of openness.
THE CODE OF CONDUCT
12. The Code of Conduct sets out the following general
'The public will have the widest possible access
to documents held by the Commission and the Council.'
The Code contains no restriction on who can apply.
The applicant does not have to be a citizen of or live in the
Union. Nor is he or she required to give any reason for wanting
to see a particular document or documents. 'Document' is defined
as 'any written text, whatever its medium, which contains existing
data and is held by the Council or the Commission'. The Code of
Conduct also states, under the heading 'Processing of initial
'Where the document held by an institution was written
by a natural or legal person, a Member State, another Community
institution or body or any other national or international body,
the application must be sent direct to the author.'
This is the so-called authorship rule.
13. What documents can be asked for? The Code is
principally concerned with giving access to unpublished material.
The Commission's guide to the subject states: "The code of
conduct says that requests may be made for any written text, whatever
its medium, which contains existing data and has been produced
by the Commission. This means that any internal Commission document
can be requested. An internal document is a document which either
has not been finalized or is not intended for publication, for
example: preparatory documents on Commission decisions and policy
initiatives such as preliminary drafts, interim reports, draft
legislative proposals or decisions; explanatory documents or other
kinds of information such as statistics, memoranda or studies
which form the background to Commission decisions and policy measures".
14. After briefly setting out the rules governing
the submission and processing of applications for access to documents,
the Code of Conduct describes the procedure to be followed where
it is proposed to reject such a request:
'Where the relevant departments of the institution
concerned intend to advise the institution to reject an application,
they will inform the applicant thereof and tell him that he has
one month to make a confirmatory application to the institution
for that position to be reconsidered, failing which he will be
deemed to have withdrawn his original application.
If a confirmatory application is submitted, and if
the institution concerned decides to refuse to release the document,
that decision, which must be made within a month of submission
of the confirmatory application, will be notified in writing to
the applicant as soon as possible. The grounds for the decision
must be given, and the decision must indicate the means of redress
that are available, i.e. judicial proceedings and complaints to
the Ombudsman under the conditions specified in, respectively,
Article 173 of the EC Treaty (now, after amendment, Article 230
EC) and Article 138e of the EC Treaty (now Article 195 EC).'
15. The matters which may be relied on by an institution
as grounds for rejecting a request for access to documents are
listed in the Code of Conduct in the following terms:
'The institutions will refuse access to any document
where disclosure could undermine:
-the protection of the public interest (public security,
international relations, monetary stability, court proceedings,
inspections and investigations),
-the protection of the individual and of privacy,
-the protection of commercial and industrial secrecy,
-the protection of the Community's financial interests,
-the protection of confidentiality as requested by
the natural or legal persons that supplied the information or
as required by the legislation of the Member State that supplied
They may also refuse access in order to protect the
institution's interest in the confidentiality of its proceedings.'
It should be noted that, with the exception of the
last sentence, all the exceptions are, on the face of it, mandatory
(the institutions will refuse), subject to the qualification
that disclosure could undermine one or more of the listed
16. In practice, what kinds of document may be withheld?
The answer given in the Commission's guide is as a follows: "Bearing
in mind that no exception is applied automatically and that each
individual request is looked at in detail, access might still
be refused if a document: relates to complaints made to the Commission,
or contains information whose disclosure would harm the conduct
of international relations; refers to the personnel records of
Commission staff (relating to recruitment, promotion or medical
files); contains a firm's trading or manufacturing secrets; is
an audit report on the use of EU funds paid to companies for implementing
a project about which litigation is pending; has been given to
the Commission on the strict proviso that it would not be passed
on to a third party; expresses the personal opinions of Commission
officials or advice from a Commission department. Nor can the
confidentiality be breached of certain documents that are protected
by EU legislation, particularly those originating in the committees
which assist the Commission in its work".
17. The Code of Conduct provided a timetable for
'The Commission and the Council will severally take
steps to implement these principles before 1 January 1994.'
The Code of Conduct was formally adopted by the Council
and the Commission in separate decisions; Council Decision 93/731/EC
on public access to Council documents
and Commission Decision 94/90/ECSC, EC, Euratom on public access
to Commission documents.
The legal basis of these decisions was Article 151 (3) (now 207(3)
EC) and Article 162 of the EC Treaty (now Article 218 EC) respectively,
provisions relating to the Rules of Procedure for the Council
and the Commission. Notwithstanding that implementation was effected
in this way, the Code is legally enforceable by individuals, firms
and others seeking access to documents. In the WWF UK case,
the Court of First Instance held that obligations which the Commission
had voluntarily assumed for itself as a measure of internal organisation
were nevertheless capable of conferring on third parties legal
rights which the institution is obliged to accept.
18. On 4 March 1994, the Commission adopted a communication
on improved access to documents 
('the 1994 communication'), giving details of the criteria for
implementation of Decision 94/90. That communication states that
'anyone may ... ask for access to any unpublished Commission document,
including preparatory documents and other explanatory material'.
With regard to the exceptions provided for in the Code of Conduct,
the communication states that the Commission 'may take the view
that access to a document should be refused because its disclosure
could undermine public and private interests and the good functioning
of the institution. ...'. On that point, the communication stresses:
'There is nothing automatic about the exemptions, and each request
for access to a document will be considered on its own merits.'
As regards the processing of confirmatory applications, the 1994
'If an applicant is told that access is to be refused,
and is not satisfied with the explanation, he or she can ask the
Commission's Secretary-General to review the matter and either
confirm or overturn the refusal.'
AMBIT OF THE CODE
19. A very large volume of EU documents, particularly
Commission documents, are in any event published. Legislative
proposals, Green Papers, White Papers, Commission communications
and work programmes are published, in all the official Community
languages, in the Official Journal of the European Communities.
The Office of Publications is the largest publications office
in the world. Many other documents of the Commission and the other
institutions are made available in printed form and/or on the
Internet. A large amount of material is thus in the public domain
irrespective of the Code of Conduct. What essentially the Code
is concerned with is access to documents internal to the institutions,
such as records of discussions, informal or otherwise, with Member
States, committees, meetings with a wide range of consumer and
commercial interest groups, preparation material, documents related
to the Commission's semi-juridical responsibilities, including
decisions under the competition rules (ie state aid infringements,
mergers, abuse of dominant market positions) and infringement
proceedings against Member States.
20. The Code applies to documents in all Three Pillars.
The right of access therefore encompasses documents relating to
the common foreign and security policy and police and judicial
co-operation in criminal matters. The application of the present
rules to the second pillar was confirmed by the Court of First
Instance in the Hautala case.
Application to the third pillar was confirmed in the Carvel
and in the Swedish Journalists case.
ENFORCEMENT OF THE CODE
21. Enforcement of the Code is via the Community
Courts or the Ombudsman. The Code provides that, if access to
a document is refused, the applicant must be informed about the
possibilities of redress both through judicial proceedings (application
to the Court of First Instance) and complaint to the European
A number of matters have come before the Community Courts. Two
key points have been established. First, notwithstanding the informal
nature of the Code itself, the Council and Commission Decisions
on public access to documents give rise to enforceable rights
Second, consistent with the general approach of the Community
Courts to exceptions and derogations in Community instruments,
exceptions in the Code to the general rule of access should be
construed and applied strictly so as not to defeat the application
of the general rule.
Complaints have also been brought before the European Ombudsman,
including a number by Statewatch from whom the Committee took
evidence for the purposes of this report.
In addition the European Ombudsman, has, within his mandate,
sought to promote openness in the Union institutions and bodies
more generally. In particular he has undertaken the own initiative
enquiries described in the next paragraph.
OTHER EU INSTITUTIONS AND BODIES
22. The Council and Commission Decisions adopting
the joint Code of Conduct apply only to requests for documents
addressed to those two institutions. They do not apply, for example,
to the Community Courts or the European Central Bank or to bodies
such as Europol. However, the present situation is that almost
all the Community institutions and bodies have rules on access
to documents. The reason for this is that in 1996 the European
Ombudsman undertook an own-initiative inquiry into the possible
adoption by other Community institutions and bodies of rules on
public access to documents. He asked if they had rules and if
not would they be prepared to adopt them. As a result 14 institutions
and bodies adopted rules along the lines of the Code of Conduct.
Their legal basis is, similar to that for the Council and Commission
rules, the power of internal organisation. A follow-up inquiry
was launched in 1999, including the new bodies such as the European
Central Bank. The outcome is that 16 (that is almost all) of the
institutions and bodies have adopted and published their own rules
on public access. The Ombudsman also made a draft recommendation
that Europol should adopt such rules. Europol has accepted the
Ombudsman's recommendation and will apply the same rules as the
ACCESS TO INFORMATION
23. The Code of Conduct only deals with access to
documents, though, as mentioned in paragraph 11, the principle
of openness is generally understood to be wider and to include
both access to information and to documents. To some extent the
European Ombudsman has sought to make good this shortcoming of
the Code. In his first Annual Report (1995) he made clear that
an unjustified failure to provide information on request is one
of the possible categories of maladministration. Further, following
an own-initiative inquiry, the Ombudsman has prepared a model
Code of Good Administrative Behaviour, which he has recommended
all the Community institutions and bodies should adopt. The Code
is drafted in the form of obligations imposed upon officials and
includes a duty to provide information on request. 
As a general principle, where an institution has the information
that is requested, then it should make that information available
unless there is some good reason (such as legitimate confidentiality
or disproportionate cost of production) for not doing so.
24. The Ombudsman has recently transmitted to the
European Parliament a special report on the outcome of this initiative.
His conclusion is that it seems unlikely that it will be possible
to achieve rules of good administrative behaviour which apply
in a uniform way throughout the institutions and bodies of the
Union, through their adoption by each institution separately.
The Ombudsman has therefore suggested to the European Parliament
that it might be appropriate to adopt a law on good administrative
behaviour that would apply to the Community institutions and bodies.
Part of the contents of such a law could be a general duty to
supply information on request such as that presently found in
the Ombudsman's model Code of Good Administrative Behaviour.
REGISTERS OF DOCUMENTS
25. The Council has, on the basis of guidelines adopted
on 19 March 1998, created a register of Council documents to enable
the public to pinpoint documents to which access is sought. The
register contains a series of key items allowing Council documents
drawn up since 1 January 1999 to be identified, viz: title, reference
number, a reference to the originator, and the addressee of the
document, the dates on which it was produced and archived and,
where appropriate, the date of the meeting to which the document
pertains. The register appears on the Council's website (http://register.consilium.eu.int/utfregister/infoEN.htm).
As its instructions indicate, the fact that a document is listed
in the register does not prejudge the Council's response to any
request for access. That is why the register does not allow the
contents of documents to be displayed. Since the register
has gone on-line on the Internet, a variety of parties, including
civil liberties environmental groups, business interests and academics,
have come to realise the value and utility of the register.
26. The Commission does not have a register of Commission
documents as such. But the Commission's website, under pages entitled
"The President's Mail". purports to give access to all
Mr Prodi's correspondence, incoming and outgoing. Members of the
public can request copies of particular items, but there is no
list of documents and accessibility is dependent on the search
engine. In order to obtain a copy it seems necessary to have certain
information such as the name of the sender and/or recipient, date
and subject matter. So it is not at all user friendly. The website
also points out that, consistent with the Code of Conduct, copies
of certain documents may be refused on the grounds set out in
the Code (listed in paragraph 15 above). As already mentioned
a large amount of material is published by the institutions. The
Commission's website also includes a section entitled Official
documents, which has pages dealing with Work Programmes, Action
plans, Guidelines; Green Papers; White Papers; the Bulletin of
the European Union: Communications; Reports; Press Releases; and
Grants and loans from the European Union.
1 Q 183. Back
Tony Bunyan observes that prior to 1993 "the cloak of secrecy
was an essential part of the Council's methodology". Secrecy
and Openness in the EU. (p.1). Referring in turn to Martin
Westlake The Council of the European Union (p. 145). Back
Communication 93/C 156/05. OJ 1993 C 156, p. 5. Back
Communication 93/C 166/04 OJ 1993 C 166, p. 4. Back
OJ 1993 L 340, p. 41. Back
OJ 1993 L 340, p. 43. The decision was adopted on 20 December
OJ 1994 L 46, p. 58. The decision was adopted on 8 February 1994. Back
Case T-105/95: WWF UK v. Commission  ECR II-313,
at para 55. Back
OJ 1994 C 67, p. 5. Back
Q 183. Back
Case T-14/98 Heidi Hautala v. Council Judgment of
19 July 1999. Back
Case T- 194/94 Carvel and Guardian Newspapers v. Council
 ECR II-2765. Back
Case T- 174/95 Svenska
Journalistforbundet v. Council  ECR II-2289. Back
The office of European Ombudsman was established by the Treaty
of Maastricht, which entered into force in November 1993. The
first European Ombudsman, Mr Jacob Söderman, was elected
by the European Parliament in July 1995. On 27 October 1999, he
was re-elected for a further five year term. The role of the European
Ombudsman is to investigate and report on possible instances of
maladministration in the activities of the Community institutions
and bodies. Back
See, eg, Case T- 194/94 Carvel and Guardian Newspapers
v. Council  ECR II-2765, at para 84, and Case T-105/95
WWF UK (World Wide Fund for Nature) v. Commission 
ECR II-313, at para.55. Back
For a recent statement by the Court of Justice, see Cases C-174/98
P and C-189/98 P Kingdom of the Netherlands and Gerard van
der Wal v. Commission. Judgment of 11 January 2000,
at para 28. Back
Details of the Statewatch complaints are set out in the evidence
printed with this Report at p 19. Back
The Ombudsman's specific task is to make inquiries about possible
instances of maladministration in the activities of Community
institutions and bodies, with the exception of the Court of Justice
and the Court of First Instance acting in their judicial role.
The European Ombudsman does not supervise the activities of national,
regional or municipal administrations of the Member States. The
definition of maladministration which was proposed by the Ombudsman
and accepted is that "Maladministration occurs when a public
body fails to act in accordance with a rule or principle which
is binding upon it." This includes failure to respect human
rights, as well as failure to act in accordance with the Treaties,
with Community acts such as Regulations, Directives and Decisions,
and with the principles established by the case-law of the Court
of Justice. The details of the Ombudsman's powers of investigation
are set out in the Statute of the Ombudsman, a decision of the
European Parliament made under Article 195(4) EC. Back
Article 22 of the Code provides as follows:
"The official shall, when he has
responsibility for the matter concerned, provide members of the
public with the information that they request. The official shall
take care that the information communicated is clear and understandable.
If an oral request for information is
too complicated or too comprehensive to be dealt with, the official
shall advise the person concerned to formulate his demand in writing.
If, because of its confidentiality,
an official may not disclose the information requested, he or
she shall, in accordance with Article 18 of this Code, indicate
to the person concerned the reasons why he cannot communicate
Further to requests for information
on matters for which he has no responsibility, the official shall
direct the requester to the competent person and indicate his
name and telephone number. Further to requests for information
concerning another Community institution or body, the official
shall direct the requester to that institution or body.
Where appropriate, the official shall,
depending on the subject of the request, direct the person seeking
information to the service of the institution responsible for
providing information to the public." Back
Q 146. The Code is available at http://www.euro-ombudsman.eu.int/recommen/pdf/en/code1_en.pdf,
on the Ombudsman's website. Back