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2008 09 25 * Brussels, Speech by the European Ombudsman, Professor P. Nikiforos Diamandouros, at the Fall Meeting of the American Bar Association Section of International Law


1. Introduction

I am delighted and honoured to address the fall meeting of the American Bar Association. As an academic who spent just about 25 years in the United States, I am always pleased to renew my contacts with American institutions, especially of the stature of the ABA. I would first of all like to thank Mr. Aaron Schildhaus, of the American Bar Association, for his kind invitation.

I will speak to you today on the subject of openness and access to documents.

Whenever the occasion arises for me to speak on the issue of openness and access to documents, the words of my predecessor, the first European Ombudsman, Jacob Söderman, spring to mind. He was intensely involved in the public debate leading up to the adoption of Regulation 1049/2001.1 To remind you, Regulation 1049/2001 constitutes the main legal instrument governing public access to documents held by the European Parliament, the Council or the Commission. Faced with opposition from certain quarters within the institutions, Jacob stated that his inquiries had thus far led him to conclude that there were a few dinosaurs lurking in the basement of the institutions. He was referring I believe, to his fear that certain persons still insisted, desperately, on the old, closed and secret ways of doing business.

Some might have doubted whether dinosaurs could survive in the new environment created by Regulation 1049/2001. A reading of the recent proposal to modify Regulation 1049/2001 may, however, lead one to suspect that Brussels still has its own version of Jurassic Park hidden deep inside its institutions.

Before going any further about dinosaurs, let me explain to you why openness matters.

It has often been argued that the European Union suffers from a “democratic deficit”. Part of the response to this “democratic deficit” has been a commitment to openness; the idea being that openness of the decision-making process strengthens the democratic nature of the EU institutions and that access to information contributes to the emergence of an informed public opinion by enabling citizens to monitor and scrutinise the exercise of the powers vested in the EU institutions.

In this context, the Treaty of Maastricht in 1992 recognised openness as an essential aspect of democracy. This led the Commission and the Council, in 1993, to adopt a Code of Conduct on access to Commission and Council documents.2 The Maastricht Treaty of course also established the European Ombudsman and one of the Ombudsman's first own initiative inquiries led to the adoption of similar codes of conduct by most other EU institutions and bodies.

The pressure from citizens for greater openness was also reflected in a number of important cases concerning access to information and access to documents brought before the European Courts. The Ombudsman also had the opportunity to deal with a number of significant cases on the same subject. For example, in one case the Council relied on a provision concerning "repeat applications" and "very large documents" to justify not giving the applicant all the documents requested. In reality, the applicant had applied for each document only once and none of the documents, taken individually, was very large. The Ombudsman made a critical remark in that case, which the Council followed up by reconsidering the matter and giving access to all the documents concerned. 3

The Amsterdam Treaty in 1997 went further than the Maastricht Treaty in embracing the principle of openness, first by including it among the general principles of the Union and second by introducing a specific provision recognising the right of EU citizens and residents to have access to European Parliament, Council and Commission documents.

All these developments led to the adoption in 2001 of Regulation 1049/2001, which, as I said, governs the public's right to access documents held by the European Commission, Council and Parliament.

On 30 April this year, the Commission presented a proposal for a regulation which, if finally adopted, will replace Regulation 1049/2001. On 2 June, I informed the European Parliament's Civil Liberties, Justice and Home Affairs Committee of my initial views as regards the proposal. While the proposal does have certain positive aspects, which I praised in my communication to Parliament, it also does raise, as you might have guessed given my references to the survival of some dinosaurs, a number of important concerns. Let me discuss a few of these concerns with you.

2. Definition of "document"

Regulation 1049/2001 applies to all documents held by the institution concerned. The Commission’s proposal, however, introduces a new definition of "document". This proposed change implies that the rules on access would only cover those documents which have been formally transmitted to one or more recipients”. By denying that a document is a "document" until it has been formally transmitted, the Commission would, for example, deny public access to documents which are circulated informally, such as documents informally passed on to favoured lobbyists. My fear is that this definition would end up reinforcing the existing secretive Brussels lobbying culture rather than, as should be the case, opening it up to public scrutiny.

3. Documents obtained from Member States

The scope of Regulation 1049/2001 extends to documents originating from Member States and held by the Council, Commission or Parliament. Article 4(5) of the Regulation states that a Member State may request the institution to which a request for access is made not to disclose a document originating from that Member State without its prior agreement. The Court of Justice, in December 2007, decided,4 by annulling an earlier ruling of the Court of First Instance,5 that while a Member State is entitled to request that access to documents originating from it be refused, it must, when making such a request, give reasons for such access being refused. These reasons must be based on the exceptions referred to in Article 4 of Regulation 1049/2001. It follows that a Member State cannot rely on exceptions based solely on national law, 6 nor can a Member State simply order the institution not to release the document without giving reasons. 7

The recent proposal of the Commission puts forward a modification to the rule set out in Article 4(5) of Regulation 1049/201. In effect, the proposal states that the institution holding the document shall disclose the document, unless the Member State gives reasons for withholding it, based on the exceptions referred to in Article 4 or on specific provisions in its own legislation. So, it appears, a Member State with restrictive national rules will be able to use those rules to request a Community institution to deny public access to a document. The proposal goes on to state that the institution shall evaluate the adequacy of reasons given by the Member State "insofar as they are based on exceptions laid down in this Regulation". This formulation seems to suggest that the, institution will not evaluate the adequacy of reasons given by the Member State if those reasons are based on exceptions laid down in national legislation. The proposal thus appears to roll back the clock as regards access to documents, by allowing a Member State the right to veto public access to documents originating from that Member State. Yes, ladies and gentlemen, this would appear to be Jurassic Park and those loud footsteps you hear would appear to be dinosaurs.

It would, in my view, be unfortunate if the Commission, through its proposal, were to upset the balance which the European Court of Justice has carefully and judiciously struck between, on the one hand, recognising the privileged position of Member States to request that access to documents originating from them be denied, with, on the other hand, the requirement that such requests from Member States be duly justified in accordance with Article 4 of Regulation 1049/2001.

4. Opinions of the legal services of the institutions

Another question that has proved controversial in recent years concerns access to the opinions of the legal services of the institutions.

In a Special Report to the European Parliament in 2001, the Ombudsman took the view that the exception for “court proceedings and legal advice” should only apply to opinions given by the legal service of an institution in the context of possible future court proceedings. In contrast, opinions from a legal service prepared during the process of drafting legislation should, according to the Ombudsman, be exempt from disclosure only if they fell within the exception protecting the institution’s so-called “space to think”. This would have meant that once the legislation was adopted, public access to legal service opinions would be subject to the “seriously undermine” version of the harm test, with the possibility of an overriding public interest in disclosure.

The Court of First Instance, however, gave a different interpretation in the Turco case, holding that the “court proceedings and legal advice” exception applies to all legal service opinions. 8 The Ombudsman therefore suggested to the European Parliament that no further action be taken on the Special Report and, in accordance with the Court’s interpretation, closed the inquiry into another complaint in which a draft recommendation had been based on the same reasoning as the Special Report. 9

On 1 July of this year, the Court of Justice annulled the ruling of the Court of First Instance.10 The Court of Justice stated that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated has the effect of increasing transparency and strengthening the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act. The Court of Justice concluded that Regulation 1049/2001 imposes, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process. I warmly welcome the ruling of the Court of Justice, which confirms the Ombudsman's analysis and conclusions concerning this matter as contained in his 2001 Special Report to Parliament.

5. Conclusion

To conclude, I must underline that, as European Ombudsman, I have a special responsibility to help address the so-called democratic deficit by encouraging greater openness, whenever possible. In this context it is heartening for me that great strides have been made in recent years as regards access to documents. The adoption of Regulation 1049/2001 by the EU legislator has greatly facilitated the process of ensuring greater openness in the Union. It is important, that, for the future, this momentum towards greater and greater openness be maintained.

I must also underline that my personal contacts with the Commission, especially with Commissioner Wallström, have led me to believe that there are many people working in the Commission who are strongly committed to openness. I fear, however, that there are others who would prefer, if they could, to put the clock back to the time when openness was the exception and secrecy the rule and that they have managed to put their footprint on important parts of the Commission's proposal.

As a final comment, let me state that, while over 20% of my work relates to the issue of openness, I am also called on to deal with complaints in many other areas, including how the institutions have acted in relation to tenders and contracts, and the use by the Commission of its powers under Article 226 EC. While time does not permit me to discuss these other issues today, you will find more information concerning our work in the documentation which is available to you at this conference.

Thank you for your attention.

1 - Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 OJ L 145 p. 43.

2 - Council and Commission Code of Conduct concerning public access, OJ 1993 L340/41; Council Decision 93/731 of 20 December 1993 on public access to Council documents OJ 1993 L 340/43; The Code was implemented through decisions made separately by the two institutions: Commission Decision 94/90 of 8 February 1994 on public access to Commission documents OJ 1994 L 46/58.

3 - Complaints 1053/96/IJH and 1087/96/IJH.

4 - See Judgment of the Court of Justice of 18 December 2007, Case C-64/05 P, Kingdom of Sweden v Commission (not yet reported).

5 - See Judgment of the Court of First Instance of 30 November 2004, Case T-168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II-4135.

6 - See Paragraphs 58 to 84 of the Judgment of the Court of Justice.

7 - See Paragraph 88 of the Judgment of the Court of Justice.

8 - Judgment of the Court of First Instance of 23 November 2004, Case T-84/03, Maurizio Turco v Council [2004] ECR II-4061, paragraphs 53 to 86.

9 - The Ombudsman’s Special Report was made in case 1542/2000/(PB)SM on 18 October 2001 and the draft recommendation in case 2371/2003/GG on 14 April 2004.

10 - Judgment of the Court of Justice of 1 July 2008 in Joined Cases C-39/05 and C-52/05, Sweden and Turco v Council and Others (not yet reported).