EU Ombudsman Blasts EC for Denying Document Access

10 January 2013

European Ombudsman P. Nikiforos Diamandouros has blasted the European Commission for denying access to documents concerning its view of the United Kingdom’s decision to opt-out from the EU Charter of Fundamental Rights.

The ombudsman said the Commission “has breached the Charter of Fundamental Rights by wrongfully refusing to give public access” to the documents and “failed to give valid reasons” for its denial of access.

These came in a “critical remark” in the conclusion of his Dec. 17 decision.  He continued:

By categorising parts of the documents as irrelevant, the Commission wrongly disregarded the complainant’s request to obtain access to the full documents and thereby evaded the obligation to give valid reasons for refusing full access.

In view of the importance of the documents concerned for the rights of EU citizens, and the fact that the Commission failed to engage constructively with the detailed analysis put forward by the Ombudsman, this constitutes a serious instance of maladministration.

Unlike the judgments of a court, the Ombudsman’s decisions are not binding on the EU institutions.

Given the time that has elapsed since the Commission’s initial refusal in 2007, the complainant would need to submit a new request for access to the same documents before being able to go to court. If the Commission again refuses access, the complainant could then go to court.

The matter stemmed from a complaint by the European Citizen Action Service (ECAS), a Brussels-based NGO, “which wanted to find out why UK citizens do not enjoy the same fundamental rights as other EU citizens,” according to the  Jan. 10 press release on the decision.  ECAS sought access to five documents concerning the UK opt-out, which, the ombudsman’s office explained, “was a major issue in the intergovernmental negotiations leading to the adoption of the Lisbon Treaty and the documents were prepared by the Commission in that context.”

The Commission refused by referring to the need to protect both the legal advice it receives, as well as its internal decision-making process, arguments that the ombudsman called “hypothetical.”

Disagreeing, Diamandouros stated: “Public access to documents concerning how EU law is adopted is key to winning the trust of European citizens. I therefore strongly regret the Commission’s refusal to give the public appropriate access to documents concerning how one of the most important EU laws, namely, the Charter of Fundamental Rights, was adopted”.

Core paragraphs in the lengthy decision include:

41. The Commission argued that full disclosure of documents 1-3 would reduce its “margin of manoeuvre” in the future with regard to “the matter discussed in these documents”, be it in the context of decision-making or in the context of Court cases[18]. The Ombudsman noted that, in the Turco case, the Court stated that access to a legal opinion relating to a legislative process may not be refused unless the legal advice is of “a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question”.[19]  The logic of the Court’s position is particularly convincing and powerful. The formulation of different opinions, including legal opinions, is inherent in a legislative process. It cannot be deemed to be harmful to the legislative process that such views are expressed and made public. Indeed, making public such legal opinions strengthens and legitimises the legislative process. As such, the Court implicitly recognised, in the Turco case, that legal advice provided in respect of the formulation of legislation (the legislative process itself) should be distinguished from, for example, legal advice concerning the future application of that legislation in concrete situations (legal advice beyond the scope of the legislative process).[20] The documents in the present case concern advice in respect of the formulation of legislation. While the legal advice in the documents certainly concerns an issue of broad significance – the Lisbon Treaty – it is not evident that the legal advice goes “beyond the context of the legislative process in question”.

42. Even if certain aspects of the legal advice were to be deemed to go “beyond the context of the legislative process in question”, the Ombudsman could not, in any case, see how, specifically, the release of documents to the public relating to the adoption of a Treaty would reduce the Commission’s “margin of manoeuvre” in the future, even as regards any issues relating to the concrete application of those rules[21]. Nor had the Commission put forward any argument suggesting that the documents in question are, in the words of the Turco case, of a particularly sensitive nature.

43. As regards the Commission’s concern that its staff would have to exercise self-restraint and draft advice in (overly) cautious terms if documents in which their views are put down are released to the public, the Ombudsman noted that this concern seems to be based on the erroneous presumption that documents will be released even though they contain views which would cause damage to legitimate interests if released to the public. If, indeed, a document were to contain anything the release of which would cause harm to legitimate interests, Regulation 1049/2001 would allow public access to that document to be refused. The solution to the concern that staff would not express themselves freely is thus inherent in Regulation 1049/2001. The Commission can and should take steps to reassure its staff that Regulation 1049/2001, correctly applied, protects their ability to express their views freely. By properly informing its staff of the applicable rules on access to documents, as well as of the legal limits to public access inherent therein, the Commission would be able to avoid the risk of self-restraint by its staff.[22]

44. On the basis of the above, the Ombudsman considered that, in the present case, the Commission had yet to provide sufficiently concrete and substantiated arguments that would warrant the invocation of Article 4(2), second indent, to refuse access to all of the non-disclosed elements of documents 1, 1a, 2 and 3.

 Later in the decision, the ombudsman takes the Commission to task for not coming up with rebuttal arguments and writes:

75. The Ombudsman therefore notes with serious disappointment that, in its detailed opinion, the Commission merely reiterates its earlier insufficient reasons for applying the exception to access in respect of the protection of legal advice to documents (1)[38], (2) and (3): it restates that full disclosure of these documents would undermine its capacity to receive full and independent legal advice, as well as its margin of manoeuvre in the future with regard to the matter discussed in these documents. 

76. The Ombudsman considers it unnecessary to repeat the detailed reasoning already provided to address the Commission’s arguments in this respect (see paragraphs 41-43 above). However, he would like to clarify one important point of concern in relation to the fact that the Commission’s arguments appear to be based on the fear of setting a precedent for documents to be drafted in the future, rather than only on the content of the present documents. Given that the documents concerned do not, in the Ombudsman’s view, appear to contain anything the disclosure of which would directly undermine the protection of the legal advice in question, the Commission again appears to base its reasoning on a concern that, if these documents are disclosed, it will also have to disclose, in the future, documents containing sensitive legal advice, that is, legal advice which, if disclosed, might actually cause harm to the protected interest. The Ombudsman, again, points out (see paragraph 43 above) that such reasoning is based on a fundamental misconception of the functioning of Regulation 1049/2001. The fact that public access previously has been granted to documents falling within the category of legal advice has no bearing on the question whether a particular document containing legal advice will be released to the public in the future. The question whether one of the exceptions to access set out in Article 4 of Regulation 1049/2001 is applicable is determined through an analysis of the content of the particular document concerned, at the point in time of the request. There is thus no risk of setting a precedent in the way in which the Commission appears to view the matter.



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