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RAAD VABrussel, 4 juli 2011 (05.07)
(OR. en)
DE EUROPESE U IE
11286/11 -
OMBUDS 3
I ST 302
I F 101 API 56 JUR 294 -
OTA I/A-PU T
van: de Groep voorlichting
aan: het Coreper (2e deel) / de Raad
nr. vorig doc.: 11285/11
Betreft: Voorstel van de Europese ombudsman voor een minnelijke schikking in zijn onderzoek naar klacht 1170/2009/KM van de heer Klaus-Dieter SOHN tegen de Raad
In bijlage dezes gaat voor de delegaties een ontwerp-antwoord van de Raad op de brief die de
Europese ombudsman op 27 mei 2011 aan de Raad heeft toegezonden betreffende klacht
1170/2009/KM, zoals dat ontwerp-antwoord eruitziet na de bespreking door de Groep voorlichting
op 30 juni 2011.
De Deense, de Finse en de Zweedse delegatie hebben te kennen gegeven tegen het ontwerp-
antwoord te zullen stemmen, en hebben de volgende verklaringen afgelegd:
DK en FI: Denemarken en Finland zijn verheugd over de bijdrage van de Europese
ombudsman. Wat het ontwerp-antwoord betreft, kunnen Denemarken en Finland niet
instemmen met de interpretatie van het Turco-arrest."
SE: Zweden kan niet instemmen met het ontwerp-antwoord wat de interpretatie van het Turco-
arrest betreft. Zweden is het wel eens met de Europese ombudsman ten aanzien van beide
procedurele kwesties."
Een meerderheid van de delegaties stemde ermee in dat de uitslag van de stemming openbaar wordt
gemaakt.
Het Comité van permanente vertegenwoordigers wordt derhalve verzocht de Raad in overweging
te geven in zijn eerstvolgende zitting:
-
-het ontwerp-antwoord in bijlage dezes als A-punt goed te keuren, waarbij de Deense, de Finse en de Zweedse delegatie zullen tegenstemmen;
-
-te besluiten de uitslag van de stemming openbaar te maken.
De bijlage bestaat alleen in het Engels.
BIJLAGE
DRAFT Brussels,
Mr Nikiforos Diamandouros European Ombudsman 1, avenue du Président Robert Schuman
B.P. 403
F - 67001 Strasbourg
Subject: Complaint 1170/2009/KM relating to an application for public access to a
document containing an opinion of the Council Legal Service
-
-your proposal of 27 May 2011 for a friendly solution
Sir,
Thank you for your letter of 27 May 2011, received by the Council on 8 June 2011, by which you
propose a friendly solution in complaint 1170/2009/KM. I am pleased to inform you of the
Council's position on this question.
(Complimentary close)
The friendly solution proposed by the Ombudsman in his inquiry into complaint 1170/2009/KM
against the Council is as follows:
"Taking into account the Ombudsman's findings, the Council could consider granting the
complainant access to document o 10673/02 in its entirety, unless it can duly establish why parts
of the document merit protection in accordance with Regulation 1049/2001, taking into account the
relevant case-law of the Court of Justice.
The Council could also consider improving its communications with the citizens who request access
to a document by (a) informing them of time limit expiry dates, and (b) informing them in good time
and, in any event, before the expiry of any relevant time limit, of the remedies open to them in case
of total or partial refusal."
Regarding the proposals on the substance
First, the Council would like to comment on the Ombudsman's findings in points 35 and 37 of his
proposal. The Ombudsman concludes that the Council's reasons for refusing full public access to
the requested document pursuant to the second indent of Article 4(2) of Regulation 1049/2001, by
reference, first, to the Council's interest in requesting and receiving written opinions from its legal
service, and second, to the legal service's capacity to present and defend the Council's position in
court proceedings in the future, do not meet the legal standard of the Turco case-law of the Court
of Justice.
In fact, the Court of Justice accepts the use of general considerations for refusing public access to
documents. This is clear from T.G. Ilmenau and API , where the Court of Justice found that "it is,
in principle, open to the Community institution to base its decisions in that regard on general
presumptions which apply to certain categories of documents, as considerations of a generally
similar kind are likely to apply to requests for disclosure relating to documents of the same nature".
1 July 2008, ECR 2008 p. I-4723.
This principle also applies to legislative files, as is confirmed in the Turco judgment 4 of the Court
of Justice. This being so, in its reply to the complainant, the Council did not content itself with
invoking general considerations to justify refusal. In accordance with the above-mentioned
case-law , it established in the specific case how the general considerations normally applicable to
written opinions by the legal service of an institution are in fact applicable to the requested
document. It relied in this regard upon concrete and specific reasons demonstrating the particularly
wide scope and the particular sensitive nature of the refused part of the document.
Second, the Council would like to make the following observation regarding point 41 of the
Ombudsman's proposal where he disapproves, by referring to the General Court's findings in Access
Info Europe , the Council's arguments in favour of establishing the particularly sensitive nature of
the document. The Council considers that it does not follow from Regulation 1049/2001 nor, for
that matter, from Access Info Europe , which judgment does not address the question of the
interpretation of the exception relating to the protection of legal advice but that of the protection of
the institution's decision-making, that the exception provided in the second indent of Article 4(2) of
the Regulation regarding the protection of legal advice would only be applicable when "a
fundamental interest of the European Union or of the Member States would be jeopardised ". In any
event, the Council respectfully notes also that it has appealed the aforementioned judgment of the
General Court .
Third, the Council observes that in point 44 of his proposal, the Ombudsman accepts the Council's
argument brought in order to demonstrate the particularly wide scope of the legal advice discussing
the choice of the legal basis for establishing a centralised Community procedure for the
authorisation of products. The Ombudsman notably draws attention to the fact that one legislative
procedure was still ongoing at the time of the Council's confirmatory decision where the same
question had been raised . Nevertheless, he then notes that this legislative procedure has, in the
meantime, been concluded. Overall, the Ombudsman considers that the Council's arguments are
insufficient to establish the "particularly wide" scope of the document. 4 - Sweden and Turco vs Council , § 50.
The Council would like to point out in this regard that the exception relating to the protection of
legal advice, as laid down in the second indent of Article 4(2) of Regulation 1049/2001, also
protects the institutions' capacity in the future to request and receive frank, objective and
comprehensive legal advice from their legal services. Therefore, it should suffice for the institution
to make a reasonable forecast that more questions similar to those addressed in the legal opinion
will follow in the future as the Council has actually done in point 9 of its confirmatory application
, in order to establish the particularly wide scope of the legal advice justifying refusal of the
requested document on account of the protection of legal advice.
For the above-mentioned reasons, the Council respectfully disagrees with the arguments advanced
by the Ombudsman in favour of a full release of the requested document.
Notwithstanding the above observations, the Council has re-examined the requested document to
ascertain the applicability of the protection of legal advice pursuant to the second indent of Article
4(2) of Regulation 1049/2001 to the retained parts of the document, taking into account in particular
the time which has passed since the Council's confirmatory decision of 24 April 2009. The Council
has concluded that, at present, neither Article 4(2) second indent nor any of the other exceptions
provided for in Article 4 of Regulation 1049/2001 is applicable to the said document any more.
Consequently, the Council will forward a publicly accessible version of document 10673/02 to the
applicant.
Regarding the respect of procedural requirements
Firstly, in point 53 of his proposal, the Ombudsman concludes that in the case of the extension of
time-limits under Regulation 1049/2001, the Council should indicate, in accordance with the
principle of good administration, the actual date on which the extended time-limit expires.
According to the Ombudsman, failing to do so could amount to an instance of maladministration.
The Council would respectfully draw the Ombudsman's attention to the fact that the time-limits
prescribed in Articles 7(3) and (8)(2) of Regulation 1049/2001 for extending the processing of
initial and confirmatory applications are expressed in working days which, in accordance with the
Regulation, are notified to the applicant in advance. The calculation of these time-limits on the basis
of the rules in force should not pose any difficulty to members of the public. As it is the case for any
other time-limits fixed in acts adopted by the institutions pursuant to the Treaties, those determined
in Regulation 1049/2001 are also calculated in accordance with Regulation (EEC, Euratom)
No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and
time limits . According to Article 2(2) of Regulation No 1182/71, "working days" means all days
other than public holidays, Sundays and Saturdays, where "public holidays" are determined
according to a list published by the Commission in the Official Journal. Consequently, members
of the public applying for documents of the institutions are in fact in a position to calculate the
expiry of the deadlines in accordance with the above-mentioned rules, which in any event constitute
a direct source of rights and duties not only for the institutions but also for the individuals affected
by those rules.
Nevertheless, in order to promote good administration, the Council is ready to indicate, in the letters
extending the time limit for the Council to reply to a confirmatory application, the actual date on
which the extended time limit expires. Furthermore, in order to further improve the service rendered
to members of the public having introduced an initial request for access, the actual date on which
the extended time limit expires will also be indicated in the letters extending the time limit for the
General Secretariat of the Council to reply to an initial application.
Secondly, in point 58 of his proposal, the Ombudsman suggests that, in accordance with the
principle of good administration, the institution should provide applicants with information in good
time and, in any event, before the expiry of any relevant time-limit, on the legal remedies available
in case of total or partial refusal. This would ensure that applicants have knowledge of the legal
remedies open to them even in cases where the institution fails to take an explicit decision on the
applicant's request.
The Council would like to reiterate in this regard that it would be unusual to indicate legal remedies
concerning a future act to be adopted in an acknowledgment of receipt or a holding letter sent to the
applicant. According to the information available to the Council, none of the institutions falling
under the scope of Regulation 1049/2001 follow such a practice at present. In fact, these are not
more than procedural measures and do not produce binding effects, and hence, are not open in
themselves to challenge. An indication of legal remedies in these conditions might even lead to
misunderstandings and, in addition, give the citizen a wrong impression as regards the Council's
capacity to give a final decision and could even give an erroneous signal to the applicant that the
institution is considering rejecting his application.
The Council would also refer back to the facts of the case, notably that it did reply to the
complainant's confirmatory application within the statutory time-limits provided in Regulation
1049/2001 and informed the complainant of the remedies open to him in accordance with Article
8(1) of that Regulation. Hence, the Council's handling of the complainant's confirmatory request
should be beyond any criticism. In addition, it is important to note that the Council has a record of
providing explicit confirmatory replies to applicants within the statutory time limits , together with
information on the possible legal remedies in cases where the reply is negative or partially negative.
For these reasons, the Council does not see any legal or any pressing practical reason for making
arrangements for an event where it would fail to reply, in the future, within the time-limits laid
down in Regulation 1049/2001.
_____________________
