‘WARNING. Confidential documents. Not to be disclosed to anyone’ (Part 2)

 

 

Päivi Leino-Sandberg (University of Helsinki)

 

Photo credit: EmDee, via Wikimedia Commons

 

The debate around the recent Pfizergate ruling has turned some problems around how the Commission applies citizens’ right to access its documents to public attention. But Pfizergate is not an isolated incident. It is a part of a pattern of long delays, the claimed non-existence of documents that remain nearly impossible to rebut, and lacking remedies, which this post seeks to illustrate through an example – my own request saga that lasted over two years.

 

In March 2023, I filed three access to documents (ATD) requests with both the Council and the Commission for the legal advice relating to:

 

-       the Proposal for a Regulation on the establishment of the Reform Support Programme. (COM(2018) 391 final);

-       the Proposal for a Regulation of the European Parliament and of the Council on the establishment of a European Investment Stabilisation Function (EISF Proposal). (COM(2018) 387 final);

-       the Proposal for a Regulation of the European Parliament and of the Council on a governance framework for the budgetary instrument for convergence and competitiveness for the euro area. (COM(2019) 354 final).

 

By the time of my requests, the legislative negotiations on the three instruments had long been abandoned. However, their key elements developed into the Recovery and Resilience Facility. The Council disclosed its legal advice in full, respecting the Turco jurisprudence, which establishes that legal advice in legislative matters should, as the main rule, be disclosed.

 

The request must have offered the Commission serious nightmares. First, it concerned legal advice. Second, it shows the Commission engaging in damage control, trying to limit the ‘harmful effects’ of legislative transparency on its own work. Third, the question of current and future mechanisms of fiscal distribution is politically sensitive, given the vast responsibility of the Commission for the allocation of the massive amounts of RRF funding and their legal fragility under the current Treaties.

 

In its initial decision, the Commission identified a number of documents relating to the final interservice consultation preceding the formal approval of the three legislative proposals. Much was ultimately blanked out. However, in respect of one of the proposals, COM(2019) 354 final, I received partial access to two documents that made it clearly visible that more would have existed.

 

First, the minutes of the Fast-track meeting of 8 July 2019 show that the Legal Service had requested the deletion of article 4(2), as a box in the margin indicates that ‘The SJ referred to its full set of drafting suggestions as well as observations in writing that had been made ahead of the FT ISC meeting.’

 

Second, the Commission provided the comments of the Legal Service in the form of track-changes regarding the ISC/2019/05372 on the proposal, which indicated that there were further suggestions that had been further elaborated in an email.

 

Neither of these documents were listed among the result of the Commission’s search or disclosed. It chose to approach my request in highly formalistic terms: as referring only to only the final stages preceding the formal approval of the Commission proposals and excluding all more informal correspondence, such as emails and ‘full sets of drafting suggestions’.

 

In my confirmatory request dated 31 May 2023, I pointed out how

 

It seems highly unlikely that the legal service or the legal units in the DGs had not provided any written legal advice beyond the documents identified by the Commission in its decision of 24 May 2023, and that the contribution of the legal service would be limited to correcting primarily technical details in the draft proposals at a stage when they are nearly finished. I kindly ask the Commission to verify this point.

 

I further clarified that my interest in the documents related to the Commission analyses on the applicable legal bases, since

 

as the Commission is well aware, some of these instruments are legally framed as cohesion policy instruments while others are understood as parts of the EU’s economic governance framework. I find it unlikely that no legal analyses would have been conducted in the Commission relating to the choice of legal basis for these instruments. The instruments also introduce a new interpretation of EU cohesion policy with constitutional importance for Union development in particular as regards spending. I find it unlikely that this change would not have been subject to careful analysis in the Commission legal service, and hereby request the Commission [to] reconsider its position on these aspects, as legal advice on these matters, given in the context of a legislative procedure, should be disclosed. […]

 

The Court has already confirmed in Miettinen that ‘the question of the legal basis is an essential question in the legislative process ‘; that ‘a proposal is designed to be debated, in particular as regards the choice of legal basis’ and that ‘in the light of the importance of the choice of legal basis of a legislative act, the transparency of the choice does not weaken the decision-making process, but strengthens it’.

 

In August I contacted the European Ombudsman about the Commission’s failure to reply in time to my confirmatory application. The Commission decision (C(2023) 5806 final) arrived on 22 August 2023, five months after my initial request was filed.

 

In the Commission, my reference to informal communication was found not acceptable as ‘the scope of review of an initial reply provided is restricted to the scope of the application made at the initial level and cannot be extended at the confirmatory level’. I could therefore not request ‘access to other documents’. I had already been provided ‘the relevant documents’ that referred to

 

any legal advice in the possession of the European Commission relating to [name of the proposal in question]’, the scope of the request was limited to legal advice on the proposals in question as such. Consequently, searches conducted concerned only such legal opinions and resulted in identifying documents related to replies given during the respective Inter-Service Consultations.

 

No further documents could be identified and no new documents needed to be created. The Commission was unconvinced about the existence of a public interest relating to the innovative legal interpretation that had enabled the EU to set up a financial instrument of €750 billion:

 

It is true, and cannot be disputed, that the public should be informed about how public money is spent. Such information made available to citizens reinforces public control of the use to which that money is put and contributes to the best use of public funds. Nevertheless, please note that this objective is already achieved by publishing comprehensive information on the EU budget, as well as the amounts allocated to the various areas with supporting explanations, which contributes to transparency in the use of public funds. No such link can be established regarding the full disclosure of the legal advice to which you are seeking access.

 

Finally, the Commission reminded me, if an institution claims not to hold any documents, there is a presumption of lawfulness attached to the declaration, unless the applicant can rebut it by relevant and consistent evidence. The Commission argued, the ‘mere suspicion that there must be a document does not suffice to put in question the presumption of legality of the institution’s statement’. As I had failed to ‘put forward any relevant or consistent evidence pointing which could lead to the rebuttal of the presumption’. However, I was welcome to file a new request for ‘additional documents’.

 

I consulted the Ombudsman’s office, given a recent EO recommendation that urged the Commission to ‘engage with requesters openly and constructively at all stages’. Moreover, how exactly could an applicant verify the existence of a document? One might think that a cross-reference in a Commission document disclosed by the Commission itself might also be enough to rebut the claim that no documents exist.

 

However, the Ombudsman announced she had now closed my case as the Commission had replied to my confirmatory application. I was advised that her services found a new request ‘the more appropriate course of action. We have asked the Commission to treat any such follow-up public access request promptly.’ 

 

New request of September 2023

 

I re-filed the request on 6 September 2023, specifying that I indeed requested access

 

to the Legal advice provided by the Commission legal service at the stage when what later came to me known as Commission legislative proposals COM(2018) 391 final, COM(2018) 387 final and COM(2019) 354 final were prepared in the relevant Commission DGs. This request relates to all stages of preparatory work preceding the respective Inter-Service Consultations and also covers informal advice offered in the form of e-mail messages or other informal corrspondence between the Legal Service and the DGs that were in charge of preparing the proposals and that may have influenced how the proposals were formulated.

 

On 16 October 2023 the Commission replied, regretting to inform me

 

that the Legal Service has not identified any document matching the terms of your request. Please note that, in line with the applicable rules, the Legal Service and the competent directorate generals of the Commission have carried out a thorough search in their corporate document management systems (Ref. Ares(2023)6974568).

 

Four days later, I filed a confirmatory application, referring to Article 21 of the Commission Rules of Procedure, which requires the Legal Service to be consulted on all drafts or proposals for legal instruments and on all documents which may have legal implications. I drew the Commission’s attention to a working paper published by a member of its Legal Service, Leo Flynn, in 2019 where he explains how cohesion policy had been firmly identified by the EU institutions as a way to fill the ‘gaps’ in the ‘incomplete policy side of EMU’. The Treaty constraints on that side were considered ‘challenging’ and ’limit the possibility for the Union institutions to adopt measures that are binding as to how the Member States conduct their economic policies’. I pointed out that under Article 17 a of the Staff Regulations Flynn must have recived prior authorisation, expressly or implicitly, to speak at the event in Maastricht and publish the subsequent working paper.

 

The Commission reply seemed to suggest that the Commission Legal Service had provided no written advice on this legal transformation, which according to Flynn's description, took place over several years. Alternatively, I argued, the Commission reply could be understood as claiming that while legal advice may or may not have been offered on the relevant legal questions at hand, no such advice can be currently found in the Commission's ‘corporate document management systems’. In this regard, I referred to the position of the European Ombudsman, also repeated in the Pfizergate context, namely that whether or not a document is registered in the Commission’s document management system but has no bearing on whether they fall within the scope of the public access rules.

  

The black hole of internal consultations and Ombudsman inquiry

 

Following the request, I was informed about an extended deadline caused by Commission’s internal consultations. I submitted another complaint to the Ombudsman in December. I also wrote to the Commission in December, reminding that the extended dead line had passed.

 

A new inquiry was opened by the Ombudsman a month later, leading to consultations and dead lines set for Commission responses. The Commission did not seem to respect them. The investigation stalled. My confirmatory request remained unaddressed. In March I reminded the Commission again.

 

Some weeks later, the Ombudsman website indicated that a preliminary inquiry outcome had been reached on 19 March 2024. I was not aware of its contents. This seemed at odds with Article 2(1) of the Ombudsman Statute that establishes a number of rights for the complainant. I had no idea what was going on with my file.

 

Article 41 of the EU Charter of Fundamental Rights establishes a right to good administration. It provides a  right to one’s own file and to get a decision ‘within a reasonable time’. With reference to these provisions, I formally requested information from the European Ombudsman about her communication with the Commission with a view to ‘learning how exactly the Ombudsman is dealing with my case, keeping in mind the Commission's blatant disregard of dead lines, which already constitutes a clear case of maladministration’.

 

The decision of the Ombudsman of 22 May disclosed nothing beyond my own descriptions of the matter (Ares(2024)3209423). Instead, I was informed that ‘we will share with you the Ombudsman’s proposal for a solution together with the Commission’s reply once we have received it. Thus, at this stage, disclosure of this document is prevented by the need to protect the Ombudsman’s ongoing inquiry’. According to the decision, she was not ‘able to identify an overriding public interest that could override the necessity of ensuring that the Ombudsman can effectively carry out her inquiry’.

 

To underline the point, the file was marked with ‘WARNING’, ‘Confidential documents’, ‘Not to be disclosed to anyone’. While I had not requested confidential treatment, the Ombudsman had decided my whole file – consisting of documents that should under established Court case law have been public - should be treated as confidential.

 

  

 

I learned from the Ombudsman’s final decision more than a year later that the Commission had by that time shared 13 documents as falling under my request. These documents had been inspected by the Ombudsman inquiry team. In the absence of any formal decision by the Commission, the Ombudsman had also written to the Commission to seek a solution, stressing that the case law in this area is clear and that there is, in principle, an obligation to disclose the advice of an institution’s legal service relating to a legislative proposal. As a result, ‘the Ombudsman proposed that the Commission should ‘consider granting the widest possible access to any documents it identifies at confirmatory stage’.

The Commission’s final decision

 

In practice, the Commission seems to have ignored also this recommendation entirely. Its final decision (C(2024) 3961 final) arrived in June 2024 – carfully timed to make a Court appeal as difficult as possible. It chose to disclose very little of the 13 documents it had identified to the Ombudsman already four months earlier. The documents are e-mail messages and other informal correspondence within the Legal Service and between the Legal Service and the Directorates-General that were in charge of preparing the proposals and that may have influenced how the proposals were formulated, prior to the preparation of these proposals.

 

The queries from DGs that the Commission disclosed demonstrate that the Commission lawyers were indeed working their ways around key Treaty constraints. However, the Commission redacted all the actual legal advice, because it ‘concern[ed] purely internal exchanges related not even to any draft versions of future proposals (and therefore not part of [any] legislative file) and thus should be as a rule protected as part of the institution’s “space to think”.’

 

When trying to distance its preparatory work from legislative work, the Commission builds on arguments that are factually inaccurate, given the timeline of the relevant legislative negotiations and other publicly available information. Deepening the EMU and modernising EU public finances are key strands in the debate on the future of Europe initiated by the Commission's White Paper of 1 March 2017, which specifically refers to the objective that “a euro area fiscal stabilisation function is operational” by 2025. Two of the legislative proposals I was interested in are included in the Reflection Paper on the future of EU Finances of 28 June 2017, the letter of intent accompanying President Juncker’s State of the Union Address 2017, and the Commission work programme for 2018. The two first proposals were approved by the Commission on 31 May 2018. The third one builds on the first two, as mandated by the December 2018 Euro Summit.

 

There is little doubt that by the end of 2017 the Commission was working on concrete legislative proposals. The documents identified by the Commission fall within the relevant timeframe and coincide with developments in the legislative processes where legal advice has been particularly needed, either when drafting the proposals or when concrete legal issues that emerged in the negotiations.

 

There is also a rather obvious contradiction in the Commission position. It carefully underlines how the requested documents ‘do not concern legal questions arising when legislative initiatives were being debated nor would its disclosure increase the transparency and openness of the legislative process’. At the same time, the Commission asserts various times that the documents should be protected because they are relevant to ‘ongoing’, ‘current’, and ‘pending’ legislative discussions and  ‘many current and future proposals’ including in the context of defence financing, ‘in particular in the context of the future MFF preparations’; or contain ‘internal discussions about the limits and scope of different legal bases (Articles 174 to 178 TFEU and 197 TFEU), including about legal bases that were ultimately not used, but which may be used in other future or present Commission proposals’.

 

I agree with the Commission that the opinions are highly relevant for ongoing and future legislative negotiations – this is indeed why I sought access to them. Moreover, the Court has already established that ‘the assertion that the requested document is relevant to a ‘wide range of current and future dossiers’ does not constitute a detailed statement of reasons’.

 

What makes the matter particularly pertinent is that in recent years, legal interpretations in the institutions have tended to fluctuate in response to functional demands. The Commission Legal Service likes to repeat that its advice should be ‘frank, objective and comprehensive’. But if its advice indeed lives up to decent professional standards, why would it need to remain confidential? Would not publicity rather help the Legal Service to make sure that in despite the functional pressures of Commission decision-making, its its advice remains ‘frank, objective and comprehensive’? What exactly is in that legal advice that makes it so compulsory to hold it secret?

 

Conclusions

 

When thinking about a possible Court appeal, I was contacted by Ombudsman services who were still working on my complaint relating to the Commission delay. I was offered the possibility to turn the initial delay in responding complaint to a case that addresses the substance of the Commission decision. In the end, I accepted and provided a number of comments on the Commission decision.

 

During the following ten months, nothing seemed to happen in the Ombudsman services. The file was finally closed with a decision by the new Ombudsman on 4 April this year. Contrary to what had been indicated, she ultimately refrained from substantive scrutiny of the decision, but expressed ‘doubts […] as to whether its position is fully supported by the relevant EU case-law set out in her solution proposal. The complainant’s extensive arguments in this regard do not seem to be without merit.’ Moreover, given the fact that my original request was made for more than two years ago, the Ombusdman found that

 

[t]here is nothing that could justify in this case what is manifestly a significant delay in replying to the complainant’s request and a clear failure by the Commission to comply with the time limits established by Regulation 1049/2001. This cannot be good administration.

 

It is possible that the Ombudsman’s involvement contributed to the Commission finally approving a decision in the case. However, it did nothing to convince the Commission that its position was in conflict with EU law. I am by far not the only one with this experience (see e.g. here, here, here).

 

The new Rules of Procedure of December 2024 make it explicit that while the Commission will implement judgments of the Court, ‘the Commission may upon assessment of the arguments provided by the European Ombudsman decide to grant further or full access to documents in the framework of the Commission’s reply to the proposal or recommendation’ (Annex, Article 15(2)). Under the Treaties, the Ombudsman cannot be given binding powers. But its authority to persuade seems seriously hampered as far the Commission is concerned.

 

This raises a rather basic question about whether there is any point for an applicant to appeal to the Ombudsman. Her lengthy and secretive process also risks the Ombudsman simply legitimating the Commission’s reluctance to deal with the request in an appropriate manner.

 

The Commission’s way of dealing with sensitive requests is not an incident. It is not an example of bureaucratic resistance but a policy that is systematically implemented to exclude democratic debate while matters are pending and to avoid accountability for politically charged actions.

‘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.

 

Anonymity in CJEU cases: privacy at the expense of transparency?

Peter Oliver, Barrister, Monckton Chambers; Visiting Professor, Université Libre de Bruxelles

Juliet famously asked: “Romeo, Romeo wherefore art thou Romeo?”  And then adds: “What's in a name? That which we call a rose by any other word would smell as sweet.”  Having an unfortunate name (like Montague, if you have the misfortune to fall in love with a Capulet) can be challenging.  But what about having no name?  That can be decidedly problematic too.  That is why both the Strasbourg and the Luxembourg courts have recognised a person’s fundamental right to the use of their own name.

The long-standing practice of the Court of Justice has been to replace the names of asylum seekers, children and other individuals in sensitive litigation by initials, while using the actual names of natural persons in other contexts.  Then, in late June, the Court announced out of the blue that this long-standing policy was to partially be reversed: since 1 July, the default position is that, where preliminary references are made in cases to which individuals are party, their names will be replaced by initials which do not correspond to their actual initials. 

Needless to say, the impetus behind this change was the Court’s own case law on the fundamental right to data protection, the recent entry into force of the GDPR and the proposed (and subsequently adopted) Regulation to replace Regulation 45/2001 on the processing of personal data by the Union’s institutions. 

Of course, data protection is not merely commendable, but absolutely indispensable in the digital age.  But this fundamental right, which is enshrined in Article 8 of the Charter, is not absolute, as is plain from the language of that provision itself and Article 52(1) of the Charter.

Consequently, this right must be balanced against an individual’s right to the use of his or her first name and surname.   It is settled law that, because this is an essential element of a person’s identity, it falls within the right to private and family life under Article 8 ECHR.  Over twenty-five years ago, in his seminal Opinion in Konstantinidis, AG Jacobs introduced the same principle into EU law; and it now undoubtedly falls within Article 7 of the Charter.

In addition, the freedom of expression enshrined in Article 11 of the Charter must be borne in mind.  Article 85 of the GDPR specifically requires the Member States to balance data protection with the “freedom of expression and information”, including processing for the purposes of journalism.

As one would expect, the Court’s announcement makes it clear that the Court “may” depart from this new rule “in the event of an express request from a party or if the particular circumstances of the case so justify”.   Unfortunately, this phrase is so nebulous as to give no guidance as to the circumstances in which the Court will consider that the “particular circumstances” will justify this.

In the well-known case of Wightman (discussed here), the Court has set out the full names of all the applicants: that is scarcely surprising since they are all politicians or activists.   Frequently, however, litigants who do not – initially, at least – fall into either category are proud to have their names attached to a leading case.  Will individuals always be informed of their right to have their names used in the proceedings in time to inform the Court of their wish before it is too late? 

Rumour has it that the Court is contemplating informing the senior judiciary of the Member States of each new preliminary reference more speedily than in the past so as to deter other national courts from posing the same preliminary questions.  That seems an excellent idea, but it should not work to the detriment of the fundamental rights of litigants.  In any case, there is nothing to preclude the Court from withholding their names when first making the existence of a new preliminary reference known, and revealing them shortly afterwards if it is appropriate to do so.

The Court was able to effect this radical and abrupt change of policy without seeking any amendment of the Rules of Procedure, which would have required the approval of the Council by virtue of Article 253 TFEU.  The stage was already set for the Court to do so by Article 95 of the Rules of Procedure, which reads:

1. Where anonymity has been granted by the referring court or tribunal, the Court shall respect that anonymity in the proceedings pending before it.

2. At the request of the referring court or tribunal, at the duly reasoned request of a party to the main proceedings or of its own motion, the Court may also, if it considers it necessary, render anonymous one or more persons or entities concerned by the case.

All the Court had to do was to announce that it was altering its practice as to when it would anonymise parties’ names “of its own motion” in future.  What is more, it is not clear whether, in keeping with normal rules of good governance, the Court took to the trouble to consult any other institutions or bodies such as the other EU institutions, the Member States or the CCBE before taking this important step.

Article 95 applies only to preliminary rulings.  However, it is supplemented by Article 190(3), which provides:

Article 95 shall apply, mutatis mutandis, to the procedure before the Court of Justice on an appeal against decisions of the General Court.

Nevertheless, as already mentioned, according to the Court’s announcement, its new policy is confined to preliminary rulings.  Why?   The most plausible explanation is that it did not wish to interfere with the decisions of the General Court in this regard, or realised the futility of doing so. (Article 66 of the General Court’s Rules of Procedure broadly corresponds to Article 95(2) of the Rules of Procedure of the Court of Justice.  Since the Court changed its practice in June, the GC has not followed suit so far.)

What is striking is the disparity between the Court’s apparent willingness to accept the GC’s judgement on matters of anonymity and its determination to impose its will with respect to preliminary references, regardless of the practice of the referring court.  The Court’s new practice is puzzling on two counts: first, it appears to run counter to the Court’s own mantra that preliminary rulings involve cooperation between itself and national courts; and imposing anonymity makes no sense when the national courts are unwilling to follow suit once a case is remitted to them after the Court’s preliminary ruling has been delivered. 

The Court has no power to prohibit the courts of the Member States from continuing to use a litigant’s real name, nor is the Court in any way empowered to stop journalists or others from doing so. This is graphically illustrated by the high profile case known as Celmer in Ireland, which became LM in Luxembourg (on this judgment, see discussion here) but went back to the Irish High Court as Celmer (see for instance the High Court’s final ruling in the case); and Artur Celmer’s name been mentioned frequently in the Irish press (see here and here).

Following the Court’s announcement, it published a new recommendation to national courts on preliminary references in which it called on national courts to remove the names of natural persons from those references; but that is purely aspirational, on the Court’s part except where anonymisation is required by the GDPR or Article 8 of the Charter. 

Needless to say, this absurd situation does little to enhance the Court’s standing or authority.  Of course, in the common law tradition, parties’ actual names are used in the overwhelming majority of court proceedings.  But, even after Brexit, Ireland is not likely to be the only Member State which is at odds with the Court’s new approach, since the use of parties’ names is very widespread in several national legal systems.

What is more, the Court’s website is not up to its new task of finding random initials – which is highly problematic for those users who lack the gift of memorising large quantities of case numbers.  My search for “LM” yielded just one reference – to an eponymous staff case.  Only after a further five or ten minutes of frantic searching did I unearth what I will continue to call the Celmer case.  Had it not been a very recent case, my efforts would no doubt have taken longer, as I would have had to sift through more cases.

In future cases, names such as Bosman, Coman and Klohn - which enable lawyers to find cases on the website in a trice – will simply disappear. This will make research into the case law far harder, and could even make it more likely that relevant judgments are omitted from submissions to the Court itself.  What is more, students of EU law will inevitably suffer, as will their professors.

Adding key words to case names, as the Court has promised to do in its announcement in certain cases, will help but it will not be as effective as using the litigant’s actual name, unless the key words are very rarely found in the case law – which is not always feasible.  In the subsequent cases, LM is referred to as Minister for Justice and Equality (Deficiencies in the System of Justice); the letters “LM” have disappeared.  Unless you remember the precise name of the Ministry or search for “deficiencies”, you are likely to lose a good deal of time.  Unlike Google, the Court’s website does not look for words with a similar spelling or meaning to those requested.

In short, this new practice will make the Court’s case law less accessible to practitioners, academics and students alike.

At the very least, the Court should respect the practice of the referring court in each case so as to avoid a repetition of the Celmer debacle, unless there are quite exceptionally strong reasons to do otherwise.  No doubt, other mechanisms can be devised to mitigate the effects of this hastily introduced new policy, including an improvement of the Court’s website.

Barnard & Peers: chapter 10

Photo credit: Inforrm’s blog

‘Inside’ the European Parliament’s Closed Reading Rooms: Transparency in the EU

Dr Vigjilenca Abazi

Assistant Professor of European Law

Maastricht University

  

What do documents about negotiations of the Transatlantic Trade and Investment Partnership (TTIP), oversight of the EU’s Food Safety Authority or Tax-Justice have in common? In order to access these documents, (selected) Members of the European Parliament are requested to attend closed reading rooms. This blog post discusses how an exception to open parliamentary oversight is increasingly becoming a regular institutional practice and questions its spillover effect on requests for public access to documents.

Background

As the wording suggests, ‘closed reading rooms’ are meetings that take place behind closed doors with the purpose of reading certain sensitive documents, particularly EU official secrets. Documents are distributed at the beginning of the meeting and collected again at the end; documents may not be copied by any means, such as photocopying or photographing; no notes may be taken; and the minutes of the meeting cannot make any mention of the discussion of the item containing official secrets (Art. 6, Interinstitutional Agreement between the European Parliament and the Council of 12 March 2014).


Closed reading rooms are an exception to generally open meetings and discussions of the European Parliament. This practice emerged with the introduction of rules on EU official secrets and specifically the Interinstitutional Agreement of 2002 between the European Parliament and the Council concerning European Parliament’s access to sensitive information in the field of security and defence policy (see Art. 3 and Annex, second paragraph). The rationale of what this Agreement called ‘secured room’ was to make sensitive documents available for purposes of parliamentary oversight without ‘risks’ of public disclosure or possible leaks, i.e. unauthorised disclosure of documents.

Initially, this practice was mostly confined to the area of security and defence for documents classified as official secrets. Yet, with the expansion of rules on EU official secrets to areas well beyond security and defence to ‘activities in all areas that require handling classified information’ via a Council Decision on official secrets in 2013, the use of closed reading rooms by MEPs to access sensitive documents became an increasing practice.

Closed Oversight

At first glance, closed reading rooms, or more generally ‘closed oversight’ (as I have elaborated in-depth in this recent article), might seem an inevitable institutional practice when dealing with official secrets and certainly this is not an issue confined to the EU, but a much wider world practice of oversight (e.g. see here for a recent report). Yet, the following salient questions arise:

Is it possible to keep account of closed oversight?

Accountability does not stop with executive institutions. It is equally important that oversight actors, such as the European Parliament, have appropriate institutionalised processes of keeping track of documents that have been reviewed, that meeting minutes reflect at least in some broad sense what has been discussed when official secrets are involved, or any other means that leave a traceable mark of institutional oversight having taken place. As the current procedure of getting access to official secrets stands (see above section on ‘background), it seems that keeping (some sort of public) track of the oversight process is deeply challenging.

To what extent intra/inter institutional rules alter primary law oversight architecture?

Another disconcerting aspect to closed oversight is the way it has been developed, i.e. mostly through rules of procedure and inter-institutional agreements. Indeed, EU institutions in line with primary law have clear prerogatives to make arrangements for their cooperation and to set out their rules of procedure (see respectively Art. 295 TFEU, Art. 240(3) TFEU). However, it remains to be more critically discussed whether this route of designing how oversight will take place in practice follows the constitutional principle of openness in the EU in full spirit and to what extent it alters the process of oversight in EU.

Does recent case law offer insights on closed oversight? 

In a series of recent cases, the CJEU has clarified the relevance, scope and procedural aspects of institutional access to information by the European Parliament in the context of international negotiations (see previous EU Law Analysis blogs here and here). However, case law does not address the manner in which these documents should be read and importantly, primary law only refers that accessibility to information is ‘immediately and fully’ (see Art. 218(10) TFEU) with no further details as to how access ought to be organised.

What about public deliberation?

A crucial role for the European Parliament as the direct representative of citizens (Art. 10 TEU) is to provide a link between what takes place in Brussels and what citizens know. But actively creating space for public deliberation and prompting public debate on issues that are overseen behind closed doors remain yet to be delivered by the European Parliament.

Spillover Effect Even to Public Access to Information?

Recently four MEPs filed a public access request to the European Food Safety Authority to gain access to unpublished studies determining the carcinogenicity of glyphosate on basis of which EFSA made its assessments. EFSA was not immediately open to provide public access to these studies. Remarkably, in its response, EFSA offers a ‘physical reading room’ for the MEPs to read these studies and reasons that the owners of these studies seem open to sharing the studies in this manner.

In other words, the EFSA is offering the MEPs a closed room to read the studies as a response to a public access request that should result in making the documents public, not only for these four MEPs but also for the general public. It should be stressed that the EU public access to documents regime does not foresee ‘physical reading rooms’ and indeed that would be contrary even to its rationale of granting the widest possible public access to documents. It seems that in the eyes of EFSA, a closed reading room offers a ‘solution’ to the potential unwillingness of the authors of these studies to disclose the documents. Yet, this possibility is also completely outside the legal contours of public access to information. Legally, authors of these studies do not have a veto on whether the studies would be public and certainly do not have prerogatives to decide how public access to documents should be organised in practice.

The EFSA response is ongoing and the four MEPs have still not received access to all requested documents. Yet, beyond this case, is the practice of closed reading rooms expanding not only to institutional access but also to public access to documents? This is a issue that we should continue to examine more closely. 

Barnard & Peers: chapter 8

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