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.
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