Tuesday, 9 September 2014

EU decision-making becomes a little more open: access to background documents drafted by consultants




Steve Peers


‘[The plans were] on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying, “Beware of the Leopard”!’

Arthur Dent, The Hitch-Hiker’s Guide to the Galaxy


Much of what the EU does is controversial. Think, for instance, of the free trade negotiations with the USA (TTIP), the regulation of many items from vacuum cleaners to genetically modified food, and the supervision (or sometimes control) of Member States’ tax and spending decisions. The substantive content of the decisions the EU makes on these issues will always disappoint someone, but in addition to that, there has long been a concern that the EU decision-making system is not sufficiently transparent. This has undoubtedly contributed to the broad feeling that the EU lacks legitimacy.

Back in 2001, the EU tried to address this by adopting a Regulation on access to documents drawn up by, or held by, the Commission, Council and the European Parliament. Attempts to amend this legislation have failed so far, so its application in practice depends on the extensive case law of the EU courts.

Some of this case law is excellent, and some is (with great respect) rather problematic. Fortunately, today’s important judgment of the EU’s General Court in the Mastercard case falls within the former category. The Court ruled in favour of access to background documents for EU decision-making drawn up by consultants, and so has significantly increased access to information on EU decision-making process.

Judgment

Mastercard applied to the Commission for some of the background documents drawn up by a consultant (EIM), which had been supplied to the Commission by EIM as part of the process of drafting a report on the impact of the costs and benefits for retailers of accepting different payment methods. The Commission refused access to the documents, on the grounds that it had not yet made a decision on the issues concerned (the ‘decision-making’ exception), and that the documents contained information on the commercial interests of the consultant.  

The General Court rejected both of the Commission’s arguments. On the first point, the documents in question did not relate directly to any specific Commission decision-making process as regards the application of EU competition law, but rather aimed to supply the Commission with more general information to inform it on the economic issues. Also, the Commission had not relied on this exception when initially refusing access to the documents. Furthermore, it didn’t matter for the purpose of the access to documents rules that the documents were interim, and the Commission had in any event shared most of the documents concerned with stakeholders.

On the second point (commercial interests of the consultant), the Court reiterated prior case law that the exception did not apply to any information about a business, but only to sensitive information concerning issues such as business strategy, sales figures et al. Applying that case law to the facts of this case, the Court did not accept the Commission’s argument that revealing the ‘trial and error’ in the draft documents produced by the consultant  would undermine its commercial reputation or reveal its secret methodology to its competitors.

So the Commission fully lost the case, and so the documents have to be released – although the Commission has two months to appeal to the Court of Justice if it wishes to.

Comments

While much of the case law on access to documents concerns the Commission, which has most of the administrative and executive power at EU level (except as regards aspects of external relations), this case highlights an important feature of the Commission’s work: its reliance upon third-party expertise. The facts of this case are the norm not the exception: many Commission impact assessments and reports rely upon one more reports drawn up by outside consultants. The European Parliament sometimes uses them too.

So anyone seeking to examine the Commission’s decision-making or the development of EU policies more broadly – whether they are journalists, researchers, NGOs or businesses like Mastercard – needs access to the consultant reports which the Commission relies upon to draw up its final proposals, reports and impact assessments. They usually contain very useful information and analysis which plays an important role in the analysis of the Commission’s final official documents which are based upon them.

Usually, the Commission publishes the consultants’ reports which it bases its documents upon. So what impact will today’s judgment have? First of all, it might result in public access to the consultants’ reports at an earlier date. Secondly, and more importantly, it will broaden access to the other background documents drawn up by consultants and made available to the Commission.

In fact, I have been involved in the impact assessment process myself several times, as an adviser to the main consultancy drawing up a report for the Commission.  I can’t discuss any of the details due to a confidentiality agreement, although I should clarify that I had no involvement with the report which was the subject of the Mastercard case.

However, suffice it to say that it is very common for consultancies to draw up interim reports and other background documents which might not be attached to the main impact assessment report. Of course, the consultancy, and advisers such as myself, also draw up drafts and working documents which are not disclosed to the Commission – and this judgment will not liberalise access to those. This is reasonable, for after all the Commission’s decision-making process will not have been influenced by documents which it hasn’t seen.  I’m a long-standing critic of the EU’s access to documents rules, and so I could only imagine the degree of Schadenfreude in the Commission and Council if it turned out that I am directly subject to the EU rules on access to documents. But that’s not going to happen.

What will the impact of this judgment be in practice? In principle, the judgment suggests that all background consultancy reports sent to the Commission ought to be released, unless there’s some other ground for refusal not relevant to the Mastercard case (see the discussion of the external relations exception below). The Court’s finding that the Commission’s decision-making wouldn’t be undermined by release is relevant to all other cases. So is the Court’s ruling that the commercial interest of the consultancy wasn’t damaged. It’s interesting to note that the consultancy didn’t intervene in the proceedings, which it surely would have done if it were worried about being damaged by the release of this document. With great respect to the expertise of EIM and other consultancies, their methodology for impact assessment is hardly the same sort of secret as Colonel Sanders' recipe for Kentucky Fried Chicken. 

The interim reports and other background documents drawn up by consultants may well contain information that could shed further light on the analysis in the final report. If there is a good reason not to rely upon the interim reports or background documents in some or all respect, the Commission and/or the consultant can simply explain this in its final document.

In principle, this judgment is relevant to background consultancy documents in any field of EU law. So businesses, NGOs, journalists and researchers could all rely upon it to gain access to documents which might be useful, whatever their field of interest may be. In particular, it is important that in this case the Court distinguished the line of case law (relevant to competition and state aid, for instance) allowing the Commission to refuse in principle access to all documents relating to individual decisions.

In the field of external relations, the impact of the judgment will be limited somewhat by the possibility to refuse access to any details of the EU’s negotiating mandates for treaties like the TTIP, on the basis of the ‘external relations’ exception in the Regulation. But it should be possible to redact the negotiating mandate from the reports and release the rest of the text (on this point, see further the discussion of another recent transparency judgment here).

This increased access to documents in turn raises two important questions of accessibility and access. First of all, will the Commission make available these background documents, and if so, when?  It’s clear from the facts of this case that the Commission did release some of these documents to ‘stakeholders’, but not to the general public. Surely it’s frequently the case that the Commission doesn’t consult every entity that might want access to the documents in question.

Secondly, how will anyone (besides the Commission, the consultancy, and any special group of consultees) know that these documents exist? Arthur Dent didn’t know about the documents that concerned the destruction of his house; and this was only the precursor to the destruction of the planet Earth without sufficient consultation. There’s an uncomfortable analogy there for climate change activists.

Unfortunately, the Commission seems to have been inspired by this fictional dystopia when designing its access to documents system. When the Eur-lex system of access to EU law was recently redesigned, the Commission removed the direct link to its access to documents register. The Eur-lex staff even denied that they’d done this.

You can still find the register if you Google it – or just click here. But its removal from the Eur-lex page might mean that some people don’t even find it. And if they do find it, they probably won’t find the background documents from consultants listed in it, since the scope of coverage of the register is very narrow. The Commission doesn’t seem to have grasped that Douglas Adams was engaging in humorous mockery – not suggesting a template for the Commission’s regime for access to documents.



Barnard & Peers: chapter 3, chapter 5, chapter 8

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