st-7916-2019-init
Dieses Dokument ist Teil der Anfrage „Working Party on Information documents 2019 and 2020“
Council of the European Union Brussels, 24 April 2019 (OR. en) 7916/19 INF 75 API 31 NOTE From: General Secretariat of the Council To: Working Party on Information Subject: Seventeenth annual report of the Council on the implementation of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents 1. Delegations will find in the Annex to this note the draft Annual Report on requests for access to documents for 2018. 2. This report has been drawn up pursuant to Article 17(1) of Regulation (EC) No 1049/2001. It describes trends in requests for access to Council documents in 2018 and reviews complaints to the Ombudsman and rulings given by the European courts in cases concerning the institutions' implementation of the regulation. The report for 2018 follows the new, shortened format of recent years, since the statistical data which provides the basis for the report is now available as open data on the Council's website. 3. Following the agreement of the Working Party on Information, the report will be submitted to COREPER/Council for approval. ____________________ 7916/19 MJ/dm 1 COMM.2.C EN
ANNEX COUNCIL ANNUAL REPORT ON ACCESS TO DOCUMENTS - 2018 1 I. REQUESTS FOR ACCESS TO DOCUMENTS IN 2018 1. The public register In 2018, the register attracted about 6 % of the Council's website's traffic. It was consulted more than 477 500 times. Of its more than 301 000 visitors, 45 % arrived at the register through web search engines, 36 % came via a direct link and 13 % were redirected from another website. More than a quarter of the visitors were based in Belgium , 10 % in Germany, 10 % in the United Kingdom and 5 % in France and Italy. On 31 December 2018, the public register listed 399 949 original language documents (2 942 631 documents including all language versions). Of the total number of original language documents listed in the register, 70.4 % (281 412 documents) are public and available to download. Throughout 2018, 25 349 original language documents were added to the register, of which 71 %, or 18 053 documents, are now public and available to download. In 2018, the Council issued 15 315 documents that were available to the public upon circulation and 9 129 LIMITE documents and added to the register 454 documents that are partially available to the public. The Council also issued 978 classified documents ,2 of which 905 are listed in the register and 73 are not. 1 This report has been drawn up pursuant to article 17(1) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43), which provides that 'Each institution shall publish annually a report for the preceding year including the number of cases in which the institution refused to grant access to documents, the reasons for such refusals and the number of sensitive documents not recorded in the register'. 2 As established by Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (OJ L 274, 15.10.2013, p. 1). 7916/19 MJ/dm 2 ANNEX COMM.2.C EN
2. Requests for access to documents In 2018, the Council received 2 474 initial requests for access to documents and 29 confirmatory applications, which required 7 930 documents to be analysed. At the initial stage, full access was granted to 5 728 documents (72.2%) and partial access to 413 documents (5.2%). Access was refused to 1 789 documents (22.5%). Following confirmatory applications, full access was granted to 41 documents and partial access to 9 documents. The Council confirmed that access should be refused to 14 documents. During the period covered by this report, the Council issued 5 097 legislative documents ,3 of which 2 765 were issued as 'public' upon circulation. Of the remaining 2 332 legislative documents issued as LIMITE (with a reference in the register but not directly accessible), 1 178 documents were made public upon request. 77.3 % of the legislative documents issued in 2018 are thus fully available to the public. At the initial stage, documents were refused mainly in order to protect the Council's decision- making process (489 times, or 32 %), to protect the public interest as regards international relations (467 times, or 30.6 %) or for reasons of public security (69 times, or 4.5 %). In nearly 30 % of cases (436 times), documents were refused based on a combination of several exceptions. The protection of the decision-making process and the protection of public interest as regards international relations were the exceptions most used to justify granting only partial access (28 % and 20 % respectively). At the confirmatory stage, documents were mostly refused (35.7%) or only partially released (66.7%) due to a combination of exceptions. It took the GSC an average of 17 working days to process initial requests and 36 working days to process confirmatory applications. The deadline of 15 working days to process initial requests was extended for 892 requests, i.e., in 36 % of cases. The deadline was extended for 26 confirmatory applications. The tables in the annex to the annex give further details on requests for access to documents. 3 As defined in Article 12 of Regulation (EC) No 1049/2001, legislative documents are documents drawn up and/or received in the course of a legislative procedure. 7916/19 MJ/dm 3 ANNEX COMM.2.C EN
II. COMPLAINTS LODGED WITH THE EUROPEAN OMBUDSMAN, OWN- INITIATIVES INQUIRIES, STRATEGIC INITIATIVES BY THE EUROPEAN OMBUDSMAN AND LEGAL ACTION 1. Complaints lodged with the European Ombudsman In 2018, the Council received one complaint concerning information on meetings between interest representatives and European Council President Tusk and/or his Cabinet. The complaints the Council received in 2017 and one complaint received in 2016 are still included since there were some developments in these cases in 2018. Complaint 1946/2018/KR This complaint, received on 19 December 2018, concerns public information about meetings between President Tusk and/or his Cabinet and interest representatives. A meeting with the Ombudsman's representatives took place on 25 February 2019. A report of that meeting was sent by the Ombudsman's services to the GSC on 28 March 2019 and subsequently to the complainant. Complaint 21/2016/JAP This complaint, received on 10 February 2016, concerns the Council's refusal to grant full access to a contribution and three opinions of the Council Legal Service relating to the proposals for a Council Regulation on the establishment of the European Public Prosecutor's Office (EPPO) and for a Regulation of the European Parliament and of the Council on the EU Agency for Criminal Justice Cooperation (EUROJUST) (6267/14, 13302/1/14 REV 1, 16983/14 and 8904/15 respectively). The complainant alleged that the Council had incorrectly applied the relevant provisions of Regulation (EC) No 1049/2001 and had relied on unconvincing arguments to refuse access. Following the inspection of the relevant documents, the Ombudsman decided to ask the Council for an opinion on the applicant's allegations and claim. 7916/19 MJ/dm 4 ANNEX COMM.2.C EN
In its reply to the Ombudsman, the Council, after having reassessed the documents requested, decided to fully release two of the documents (6267/14 and 8904/15). As regards the two remaining documents (13302/1/14 REV 1 and 16983/14), which had already been partially disclosed, the Council concluded that no further access was possible and that it had to maintain the refusal of public access pursuant to the second indent of Article 4(2) (protection of legal advice) and the first sub-paragraph of Article 4(3) (protection of the Council's decision-making process) of Regulation (EC) No 1049/2001. On 7 March 2019, the Ombudsman decided to close the inquiry with the conclusion that there was no maladministration by the Council. The Ombudsman furthermore invited the Council to grant public access to the withheld parts of document 16983/14 in the light of changed circumstances. Complaint 1272/2017/ANA This complaint, received on 4 August 2017, concerns the Council's refusal to grant full public access to a contribution by the Legal Service concerning the possibility of Council participation in the Interinstitutional Agreement between the European Parliament and the European Commission on the transparency register for organisations and self-employed individuals engaged in EU policy- making and policy implementation (14704/14). The complainant alleged that the Council had wrongly refused to grant full public access to the document concerned. In the complainant's opinion, the refusal was not well justified or well argued, despite there being an overriding public interest in disclosure. An inspection was carried out on 6 October 2017 and the report was received on 7 November 2017. On 23 May 2018, the Ombudsman sent a letter suggesting that the Council grant full access to the requested document. On 27 June 2018, the Council decided to publish the document in question and informed the Ombudsman accordingly. On 31 August 2018, the Ombudsman notified the Council of a decision closing the inquiry. 7916/19 MJ/dm 5 ANNEX COMM.2.C EN
Complaint 1955/2017/THH This complaint, received on 13 November 2017, concerns the Council's refusal to grant more than very limited partial access to a number of opinions by the Article 255 Panel on Judicial Appointments to the Court of Justice of the EU and the General Court of the EU. On 11 December 2017, the Ombudsman's services carried out an inspection, which was limited to the favourable opinions issued by the Panel. A report of this inspection was sent by the Ombudsman's services to the Council. Another meeting with the Ombudsman's services took place on 11 June 2018 and a meeting report was sent by the Ombudsman's services to the Council on 21 June 2018. At the time of publication of this report, the Council had not received any further information on this matter from the Ombudsman. Complaint 2110/2017/THH This complaint, received on 14 December 2017, concerns the Council's refusal to grant full public access to an opinion of the Legal Service relating to amendments to legislation on the prevention of money laundering (15655/16). The complainant alleged that the Council had wrongly refused to grant full public access to the document concerned, had erred in its invocation of two exceptions and, moreover, had failed to give proper consideration to the public interest test. An inspection was carried out on 5 February 2018. The report of this inspection was sent by the Ombudsman's services to the GSC on 22 May 2018. The Ombudsman sent its decision to the Council on 22 August 2018 stating that by releasing the legal opinion, the Council had settled the complaint. 7916/19 MJ/dm 6 ANNEX COMM.2.C EN
2. European Ombudsman's own-initiative inquiries The Ombudsman's own-initiative inquiry from 2017 on access to documents relating to Council preparatory bodies when discussing draft EU legislative acts is mentioned in this report as there was some follow-up in 2018. Own-initiative inquiry OI/2/2017/AB on access to documents relating to Council preparatory bodies when discussing draft EU legislative acts On 10 March 2017, the Ombudsman sent a letter to the Secretary-General of the Council of the EU opening an own-initiative inquiry into access to documents relating to the discussion of EU legislative acts by the Council's preparatory bodies. In her letter, the Ombudsman recognised that the Council was already committed to the principle of transparency and to facilitating citizens' knowledge of, and capacity to be involved in, the EU legislative process. She indicated that her inquiry was intended to be of assistance to the Council in that regard. The inquiry focuses on four areas: (i) consistency of practices between working parties; (ii) recording of Member States' individual positions; (iii) completeness of the Council's document register; and (iv) accessibility of documents in the Council's document register. The Ombudsman asked the Council to reply to a number of questions that fell within the four areas 4 identified above. The Council provided its opinion on the matter by letter on 26 July 2017. In a letter of 4 October 2017, the Ombudsman asked the Council to allow her to inspect, in accordance with Article 3(2) of the Ombudsman's Statute, three files relating to legislative acts adopted in 2016, which would be chosen by the GSC to illustrate the various practices in its departments. The Ombudsman also carried out a public consultation by asking members of the public and civil society to submit their views on the subject of the inquiry. 4 8808/1/17 REV 1. 7916/19 MJ/dm 7 ANNEX COMM.2.C EN
The inspection was carried out on 23 January 2018. On 9 February 2018, the Ombudsman sent a follow-up letter to the Council containing three recommendations on the transparency of the Council legislative process 5 and some suggestions for improvement. The Council was asked to send the Ombudsman a detailed opinion on these recommendations and to inform her of any actions taken in relation to her suggestions for improvement before 9 May 2018. In order to be able to prepare its reply in line with its internal procedures, the Council asked for an extension of the Ombudsman's deadline on 23 April 2018. Without waiting for the Council's reply to her recommendations and suggestions for improvement, the Ombudsman sent a letter 6 to the Council on 15 May 2018 closing the inquiry and confirming her findings of maladministration. The Ombudsman also submitted a special report 7 to the European Parliament on 16 May 2018. On 17 January 2019, the European Parliament adopted a resolution 8 on this own-initiative inquiry in which it made some recommendations to the Council. 3. Fast Track procedure On 24 January 2018, the Secretary-General of the Ombudsman sent a letter to the Secretaries- General of the different institutions to inform them of a "new fast-track procedure for dealing with complaints about access to documents". The letter indicated that the Ombudsman will normally ask the institution concerned to give her immediate access to the documents at issue (typically within five working days). In the event that the institution wishes to provide the Ombudsman with information and explanations to supplement the arguments put forward by it in its confirmatory application, it will have the opportunity to do so. However, the Ombudsman's intention is to adopt an informed view on the complaint within 45 working days of it being submitted to her. 5 6495/18 6 9163/18 7 9165/18 8 http://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2019/01- 17/0045/P8_TA-PROV(2019)0045_EN.pdf 7916/19 MJ/dm 8 ANNEX COMM.2.C EN
The Council replied to the Ombudsman on 23 May 2018, indicating that although the aim of speeding up the handling of complaints on access to documents was commendable, it should not be pursued at the expense of citizens' interests in terms of getting a considered and possibly more favourable reply than the original application. The Council indicated that it expected the Ombudsman to reconsider this new procedure by including the necessary elements of flexibility, explaining that the internal procedure for replying to the Ombudsman (examination by the competent preparatory body of the Council and COREPER, and adoption by the Council) does take time. On 5 July 2018, the Ombudsman sent a letter on this issue to the Council, indicating her wish to take into account the procedural specificities of each institution in order to achieve the best solution for citizens. 4. Court cases In 2018, there were no actions against the Council pending before or decided at the General Court or the Court of Justice concerning access to documents. However, the Council intervened (or requested authorisation to intervene) in the following cases: – T-540/15 De Capitani v. Parliament – T-168/17 CBA v. Commission In case T-540/15 (Emilio De Capitani v. European Parliament), the Council intervened in support of the European Parliament. Mr De Capitani had brought an action before the Court for the annulment of the European Parliament's decision to refuse full access to multicolumn tables prepared for trilogue meetings, in the context of negotiations on the legislative proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol). This case pertains, in particular, to the refusal of access - based on the protection of the decision-making process of the institutions provided for in the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 - to the fourth column, which sets out the compromise text agreed by the institutions. 7916/19 MJ/dm 9 ANNEX COMM.2.C EN
In its judgment of 22 March 2018, the General Court annulled the decision by which the Parliament rejected the request for access to the documents in question. The Court considered the trilogues to be part of the legislative process and the four-column tables to be documents which form part of that process. As a consequence, the principle of wider access associated with legislative procedures applies to them. In case T-168/17 (CBA v. Commission), the applicant submitted that the exceptions provided for in Article 4 of Regulation (EC) No 1049/2001 are unlawful, since they conflict with higher-ranking primary law, in particular with Articles 42 and 47 of the Charter of Fundamental Rights of the European Union. The Council has intervened in support of the European Commission in this case which is still pending. III. PUBLICATION OF DOCUMENTS PURSUANT TO ARTICLE 11 (6) OF ANNEX II TO THE COUNCIL'S RULES OF PROCEDURE In 2018, the GSC published 1 028 documents relating to 63 legislative acts that were adopted throughout the year. __________________________ 7916/19 MJ/dm 10 ANNEX COMM.2.C EN
