EU Ombudsman Supports Disclosure of Legal Document

22 January 2014

The European Ombudsman has ruled that the European Council should not have denied access to a document drawn up in the context of negotiations between EU member states with an eye to finding arrangements for ensuring compliance with the balanced budget rule contained in the Fiscal Compact Treaty.

“By failing to justify why it cannot grant full access to the requested document, the Council has committed an instance of maladministration,” concludes the Jan. 17 decision by Emily O’Reilly, She notes that the complainant has obtained the document. Ombudsman’s decisions are nonbinding but usually followed.

In order to justify the redaction of some portions of the document “the Council has merely advanced the argument that the protected interest will be endangered because the disclosure of the requested document “could impact on that on going political and legal debate, as well as on the on going ratification process, since it refers to matters which are of particular legal and political sensitivity and which have been, and remain, the subject of intensive debate”.

The decision continues: “The Ombudsman is not entirely convinced by the Council’s general view. She does not see how disclosing the Council’s legal analysis on the compliance of an intergovernmental treaty provision (or international treaty provision) with the EU law could establish the existence of a threat to the financial, monetary or economic policy of the Union or a Member State. Such threat can hardly be inferred from the existence of a political or legal debate as to whether the Court of Justice could check the compliance by Member States with the so-called “balanced budget rule”. She further notes that the fact that the disclosure of a document “can impact on an ongoing legal and political debate” is obviously not the same as showing that it could specifically and actually undermine a protected interest.”

The Ombudsman said that “public knowledge of the document in question could only be beneficial for the protected interest.”

She also rejected the Council’s contention that disclosure of the document could undermine the protection of legal advice, saying such risk must be reasonably foreseeable and not purely hypothetical.

The argument that member states would be deterred from requesting such sensitive legal advice in similar future situations also was rejected.


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