‘WARNING. Confidential documents. Not to be disclosed to anyone’ (Part 1)

 

Päivi Leino-Sandberg (University of Helsinki)

 

Photo credit: Cancillería Ecuador via Wikimedia Commons

 

When conducting research, I often file requests for access to documents (ATD) under the EU’s access to documents regulation (1049/2001), primarily with the Commission and the Council, and use them as a source of empirical research. In this blogpost, I share some experiences from my recent requests. This post illustrates some of the general features of how ATD requests operate with the Commission and the Council today. The second part uses the example of one of my recent requests to illustrate the Commission’s increasing resistance to citizens’ right to access its documents as a way of enforcing public accountability, and how its policy of non-engagement also corrupts access to remedies. Making the Commission arguments and practices visible is one way of subjecting it to political accountability.

 

During the past twenty years or so, both have had their sensitivities to disclose what they deem as ‘internal documents’. Today the Council has a comprehensive public register that is helpful for identifying what you might be interested in. Equally importantly, when filing a request with a Council, the Council will respond. You are regularly informed about when your matter will be decided. Negative decisions will also explain why access was (perhaps partially) refused. I have in most cases received full access to the legal opinions, Presidency compromise proposals, court pleadings and various internal policy documents I have requested. While proactive transparency for legislative documents is still struggling to emerge, the Council is respectful of the applicants’ procedural rights.

 

The Commission is an entirely different story. Its public registers are far from comprehensive, which forces those interested in its documents to file requests. Fairly often the answer is that documents ‘do not exist’. Alternatively, instead of disclosing what you initially asked for, you are offered some documents that fall under your request but that are carefully selected by the Commission.

 

If asking for important information, there is a great likelihood that your request will simply fall in a black hole where the clear time limits (15+15 working days) set in Regulation 1049/2001 lose all significance. For months (or even years) nothing seems to move. You find yourself sending reminders through the Commission EASE system, which is frequently malfunctioning, and especially so when your own time limit for an appeal is running. Whereas the Commission’s deadlines for reacting to requests are endlessly flexible, those placed on the applicants are carved in stone.

 

Based on my experiences, the implementation gap between the Commission and the Council is widening. When I requested access to the legal advice relating to the new fiscal stabilisation mechanisms, the Council granted full access to all its opinions. The Commission did not – and this is a story I will share in part 2 of this blog.

 

When I asked for legal advice relating to the EU’s new unified funding and borrowing approach, no documents could be found. For the Council, this may well be true. However, the new Commission strategy is an important step towards becoming a European ‘treasury’’ – and something that in the Four and Five Presidents’ Reports on EMU Development for a decade ago was still counted among the long-term objectives requiring major Treaty reform. Against this background, it is unlikely that the Commission would have prepared the strategy without any engagement of its Legal Service – but this is difficult to rebut.

 

Over the years, the Court has been very understanding of the Commission’s wish to exclude many of its non-legislative documents from the scope of public access. While also rejecting some of the Commission’s standpoints (such as on impact assessment and legal advice), it has accepted to replace the duty to carry out a concrete, individual examination of the content of the requested documents by a general presumption of confidentiality. This enables the Commission to de facto leave a large part of its key activities outside public access, including state aid, control of concentrations / merger control proceedings, infringement proceedings, proceedings under Article 81 EC (now Article 101 TFEU), and pilot procedures. General presumptions are legally problematic under Regulation No 1049/2001 and the EU’s obligations under the Aarhus Convention.

 

Today, the Commission’s resistance to public accountability continues in two core areas of democratic decision-making: approval of EU legislation and the use of EU funds. Its policy is driven by the aim to make timely and informed debate impossible.

 

Instead of gaining access to original documents, the Commission refers you to formal communication offering a curated picture of its actions. This undermines the explicit objective of the Treaty-based citizens’ right to access documents. Under the preamble to Regulation 1049/2001,

 

Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.

 

The Commission’s lack of understanding of the relevance of these basic Treaty objectives for its own work have been visible in the way the Commission has responded to the requests concerning the implementation of the Recovery and Resilience Facility (RRF), which allocates nearly €700 billion of EU taxpayers’ money to national reforms and investments under light Commission guidance. Journalists have waited for answers to their requests concerning the plans for months and sometimes for years.

 

One example of a an enormously late Commission reply, given to investigative journalist Peter Teffer, explains how disclosure of various documents relating to the preparation of the Dutch Recovery and Resilience Plan ‘would open the door to undue external pressure on the decision-making process’. In the view of the Commission, ‘This could lead to speculation and serious interference with the Commission’s decision-making process. As a result, the Commission would be deprived of engaging in a constructive form of internal criticism, provided free of all external pressure’ (Ares(2024)5120311).

 

For the Commission, public debate of its policies is not understood as an inherent part of a democratic political system but a threat to its decision-making. In the face of the righteousness of its own cause, democratic rights of critical observers start looking like a nuisance.

 

There are many responses of the same kind. The Commission also insists that key RRF documents should be kept confidential until 2026 when the final disbursements have been made. Its reluctance to apply transparency has led to a highly critical inquiry by the previous European Ombudsman.  

 

The previous Ombudsman also voiced broad and fundamental concerns about the Commission’s increasing lack of engagement with her inquiries, leading to growing frustration when the Commission services simply refused to comply with the Court’s case law. 

 

‘We now need to embed citizens’ participation across the EU’ is something that Ursula van der Leyen declares in her Political guidelines for 2024-2029. Yet, the Commission has never been a believer in participatory democracy. In legislative matters, documents are strategically disclosed so late that negotiations have already come to an end. It is difficult to think of any European Citizenship Initiatives with legislative impact. The recent Omnibus debate – also subject to an ongoing Ombudsman investigation - illustrates the tendency of the Commission to replace broad consultations of civil society with guidance from the industry.

 

One of my own recent interests has concerned how the practical scrutiny of national Recovery and Resilience Plans, introduced by the European Council in 2020 to ensure that the adequacy of the Commission’s assessment of the fulfilment of milestones and targets in national plans, has been organized in the Economic and Financial Committee (EFC), an EU body set up by Article 134 TFEU and consisting of senior officials from the Member States, the Commission, and the ECB. 

 

EFC documents are officially Commission documents. But given the difficulties involved in receiving a decision within a decent timeframe from the Commission, I filed my request for

 

‘any EFC internal rules or guidelines that govern the preparation of its opinions under the RRF, including possible amendments’ with the Council, presuming that the documents would also be in its possession. It consulted the Commission, which opposed disclosure. However, the Council decided to disclose the relevant guidelines in full following my confirmatory appeal.

 

The documents demonstrate that due to time limits and information asymmetries, Member State scrutiny of national spending under the RRF is a myth. The Commission is the only EU actor that conducts negotiations with the Member States on what should be in the plans and receives documentation from them. The Commission also monitors, based on Member State documents, how the milestones and targets are implemented. The Council, the EFC and also the European Parliament are all dependent on the small amount of information they receive from the Commission, supporting its proposal. Given the information asymmetries and short timeframe, the scrutiny by the Council  or the EFC is a mere formality. They do not have the time, the resources, the local knowledge needed to assess national plans or even the inclination to challenge the way another Member State spends its share of the funds. But for the Commission, it has been useful to be able to refer to how it does not take decisions alone, thus placing the responsibility with the EFC or the Council.

 

They are of course also requests that are dealt with reasonably smoothly in the Commission. When I asked for the Commission pleadings in case C‑166/07, EP v Council, I received them promptly, exactly 15 working days from my request. When I for some years ago asked for ‘documents relating to the meeting between Margarethe Vestager and members of the Court in Luxembourg on 28 November 2022’, I received an answer ‘only’ five weeks later. I was surprised, given that there might be questions about why the Competition Commissioner meets members of the Court, unless this is to discuss the Commission agenda in ongoing and future cases.

 

However, systemic delays are today commonplace. As the European Ombudsman noted in March 2023 when closing her investigation relating to the problems,

 

long delays frequently occur in cases that are of significant public interest.

 

The effect of such delays in some instances is to render the information obtained no longer useful for research or journalistic purposes. The delays may also prevent citizens from having their say at relevant times in decision making.

 

At the confirmatory application stage, legal deadlines are missed in 85% of cases. The lengthy delays may deter people from making access to document requests. The Ombudsman found these delays to be systemic and constitute maladministration.

 

The European Parliament later approved a resolution on the issue, where it

 

Stresses that, if the Commission does not address the systematic and significant delays in its processing of requests for public access to documents by the time the new College of Commissioners is established, Parliament will consider using all available parliamentary instruments to address the matter; recalls that Parliament has the right to bring action against the Commission before the Court of Justice of the EU on the grounds of infringement of the Treaties, including Article 15(3) TFEU on the right of EU citizens and residents to access documents;

 

But political accountability seldom reaches very far in the EU, and the Commission is well aware of this. But being an unelected body with very weak direct accountability to the voters, participatory democracy is by and large the only mechanism for the general public to hold the Commission accountable. Any effort from the Commission to frustrate that channel should simply not be tolerated.

 

When the new Commission took office, it not only cut further on its transparency practices, but also formalised them in its Rules of Procedure. Its new internal rules allow destroying documents, create new general presumptions of secrecy with nearly unlimited temporal scope also for all ‘opinions of the Legal Service’ irrespective of whether they are given in a legislative or non-legislative context. Under the Turco jurisprudence, legal advice in legislative matters benefits from the presumption of full disclosure.

 

The new rules make it explicit that the Commission does not apply the Court’s case law relating to legislative transparency to its own documents[PS5] [PL6] . The ‘documents directly accessible to the public’ are limited to ‘legislative proposals as of their adoption’, ‘accompanied by the impact assessment and the Regulatory Scrutiny Board opinion’, thus excluding all preparatory documents preceding the formal approval of the proposal. This formulation ignores the Grand Chamber ruling in case C-57/16 P, where the Court identifies the Commission as a ‘key player in the legislative process’ and underlines the importance of timely disclosure of legislative preparatory work in the Commission, given its importance for how legislative proposals are formulated.

 

The debate around the recent Pfizergate ruling has brought some of these problems to the surface. It concerned the reluctance of the Commission to identify and disclose the text messages concerning the EU vaccine purchases between the Commission President and Pfizer CEO Albert Bourla. The Court rejected the Commission arguments, underlining that formal registration of a document is not a precondition for public access, and that the institutions must maintain and preserve documentation concerning their activities.

 

Under existing case law, citizens are advised to trust the institutions:

 

where an institution states that a document does not exist in the context of an application for access, the non-existence of that document is presumed, in accordance with the presumption of veracity attaching to that statement.

 

In Pfizergate, the applicant, New York Times, could verify based on interview transcripts that the requested documents had at least existed. The Court accepted this as evidence that could be used for rebutting the presumption of veracity. But fairly often such evidence is difficult to come by. Moreover, how do you trust an Institution that openly disregards legal obligations relating to citizens’ rights?

 

Before the Court, the Pfizergate facts had already been referred to the European Ombudsman whose findings the Commission ignored. And when losing the case in Court, the Commission press release indicates the intention of engaging in malicious compliance - doing the absolute minimum required without devoting any effort to thinking what it could actually do better. The Commission Press Release was quick to note that the ruling did “not put into question the Commission's registration policy regarding access to documents” but only required it to provide a “better explanation”. Since then, it has indicated that it has no “specific timeline" for replying to the Times. Therefore, the question is not just about some text messages that went missing, but about how the the Commission’s non-engagement policy also corrupts access to remedies.

 

In part 2, I share a true story to illustrate the anatomy of an ATD request with the Commission.