Dear Secretariat General,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting full access to the Legal Advice generated by and/or provided to the Commission regarding the lobby register, inlcuding any and all legal advice that considers the treaty basis for the register and whether or not it could be mandatory.

There is a an overriding public interest in having this legal advice made public at this time, given the ongoing debate about the future of the lobby register, including the public consulation currenlty under way. This information is needed, inter alia, for citizens, civil society groups (including the organisation that I represent), and other stakeholders to participate fully in the debate about the nature of the register, as well as to ensure transparency of the decision-making process related to it so that public officials can be held to account over the eventual decisions made about the register.

Yours faithfully,
Helen
**********************
Helen Darbishire
Access Info Europe

Dear Secretariat General, Access to Documents Team

Yes, I can confirm that my address remains the same and that your postal communications, registered mail, and courrier deliveries do reach me.

That said, I note that I do prefer to receive copies of all documents electronically, and preferably in machine-readable format.

Yours faithfully,
Helen
Helen Darbishire (Ms)
Access Info Europe

Dear Maria Skylodimou
Thank you for the update. I look forward to receiving the information on or before 30 June.
Best,
Helen Darbishire
Access Info Europe

Dear Maria Skylodimou,

Many thanks for the update.

Sincerely,

Helen Darbishire

European Commission
Secretary-General
Transparency unit SG-B-4
BERL 5/327
B-1049 Brussels
BELGIUM

Madrid, 18 August 2016

Subject: Request for access to documents - confirmatory application
Reference number: GestDem 2016/2791

Dear Secretary General,

Following my request for access to documents of 17 May 2016, I am hereby submitting a confirmatory application in accordance with Article 7(2)[1] and 7(4)[2] of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (hereinafter “Regulation 1049/2001” or “the Regulation”).

I. FACTUAL BACKGROUND

On 17 May 2016 I requested, via the AsktheEU.org portal, full access to the legal advice generated by and/or provided to the European Commission (the “Commission”) regarding the lobby register, including any and all legal advice that considers the Treaty basis for the register and whether or not it could be mandatory. The Commission acknowledged receipt of the application on 19 May 2016.
The request and the full history can be found here: https://www.asktheeu.org/en/request/lega...

Despite an obligation to handle my application within 15 working days, on the date the deadline was meant to expire, 9 June 2016, the Commission extended the deadline by another 15 working days, without providing detailed reasons as to why, meaning that the new deadline was to expire on 30 June 2016.

On 30 June 2016, the date that the second deadline was supposed to expire, the Commission informed me that it was still in the process of handling of my application and that it would send me a reply “as soon as possible,” without giving any indication of when this would be.

Half a month after the missed second deadline, on 18 July 2016, the Commission informed me that it would be sending its reply “by the end of this week”. The Commission failed to reply by the end of the week.

I finally received a reply, by letter of 27 July 2016, over two months following the date of the request. In its reply, the Commission granted partial access to three European Commission Legal Service documents.[3]
The documents received have been heavily redacted, to the extent that, while they do contain some factual and background information that is generally already in the public domain, they provide no insight into the nature, scope, or conclusions of the legal advice provided by the Legal Services, and hence entirely fail to satisfy the request.

II. PROCEDURAL VIOLATIONS

Before addressing the Commission’s substantive assessment of my request, it is worth drawing to the Commission’s attention its handling of my request, which fell well below the standard set in Regulation 1049/2001, infringing Articles 7(1) and 7(3).

First, Articles 7(1) of Regulation 1049/2001 obliges the institution to handle applications for access to documents “promptly”. Taking from 19 May 2016, the date the Commission acknowledged receipt of the application, to 27 July 2016, the date of the reply, can in no way be regarded as ‘prompt’.

Second, Article 7(3) of the Regulation states that the institution may only extend the 15 working day deadline to reply in “exceptional cases”, citing as an example where there is “an application relating to a very long document or to a very large number of documents”. My application merely related to three documents, consisting of 2, 5 and 6 pages, rather than a ‘very long document’ or a ‘very large number of documents’ as is required by the Regulation to justify extending the deadline. It is therefore clear that there was no exceptional case justifying extending the Commission’s deadline.

Third, Article 7(3) of the Regulation states that this 15 working day time limit may be extended provided that “detailed reasons are given”. However, as reason for the extension, the Commission simply stated in its reply letter that: “in view of the number and nature of the applications for access to documents the Legal Service is dealing with currently, we will not be in a position to complete the processing of your request within the time limit of 15 working days, which expires today” (emphasis added). In using such general and imprecise language, it is difficult, under any possible reading of Article 7(3) to see this explanation by the Commission as satisfying the requirement that the reasons for the extension be ‘detailed’.

Fourth, despite already granting itself a 15 working day extension to reply—contrary to Articles 7(1) and 7(3), as explained above—the Commission extended its deadline twice more, completely outside the limits of its power under Regulation 1049/2001. The third deadline extension, which it granted itself on 30 June 2016, did not even give an indication of when it was going send the reply. Then on 18 July 2016, the Commission said it would reply “by the end of this week”, which it did not.

Whilst we realise that, at this juncture, the Commission can do nothing to reverse the breach of the timeframes that has already occurred, and recognising that a confirmatory application is not the vehicle for a further request for documents, we do nevertheless ask that in your response, you address the question of what the Commission is doing to solve the problem of serious delays in responding to requests. We further ask, given (as we argue below) the high public interest in this particular access to documents request, that you respond to this confirmatory application within the 15 working days stipulated by Regulation 1049/2001.

III. SUBSTANTIVE ASSESSMENT

It should be stated at the outset that, in accordance with recital 11 of Regulation 1049/2001, the general principle is that “all documents of the institutions should be accessible to the public.” The burden is therefore on the institution to prove to the requisite legal standard that full disclosure of the three documents at issue would undermine the protection of legal advice (Article 4(2) of the Regulation) and—as regards documents relating to a matter where the decision has not been taken by the Commission—would seriously undermine the Commission’s decision-making process (Article 4(3) of the Regulation).

A. Protection of legal advice and of the decision making process

It has been established by the Court of Justice that the reasons for any decision based on the exceptions of Article 4 of the Regulation must be stated by the institution.[4] If an institution decides to deny full access to a document, it must explain two things:

“first, how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4 of Regulation No 1049/2001 relied on by that institution and, secondly, in the situations referred to in Article 4(2) and (3) of that regulation, whether or not there is an overriding public interest that might nevertheless justify disclosure of the document concerned” (emphasis added).[5]

It will first be argued that full access to the three documents in question does not undermine the protection of legal advice or the institution’s decision making process. In the alternative, if it were to be regarded that disclosure would undermine the given interest (which I argue is not the case), there would nevertheless be an overriding public interest in fully disclosing the documents.

i. Access to the documents does not specifically and effectively undermine the protection of legal advice or the institution’s decision making process

- Article 4(2): Legal advice

The Commission does not explain how exactly disclosure of each of the three documents could specifically and effectively undermine the protection of legal advice.

The Court in the above cited Sweden and Turco v Council (“Turco”) case condemned the Council for relying on “mere assertions, which were in no way substantiated by detailed arguments” and stated that “there would appear to be no real risk that is reasonably foreseeable and not purely hypothetical of that interest being undermined.”

It is wholly apparent that the Commission is, like the Council in Turco, relying on unsubstantiated assertions, despite the burden being on the Institution—rather than the person seeking access to the documents—to demonstrate why it should benefit from an exception to the general rule that all documents of the institutions should be accessible to the public. For example, it is not clear how disclosure of each of the three documents would ‘prejudice’ the Legal Service’s capacity to assist the Commission, or how it would ‘deprive’ the College of Commissioners of an element in the decision-making process.

The Commission states that “full disclosure of the documents would make known to the public an internal legal opinion in a matter of a sensitive nature, drafted under the responsibility of the Legal Service and intended exclusively for the Commission’s Cabinet responsible for the matter and for the Secretariat-General”.

We first underline that, as stated in recital 11, cited above, there is a general presumption that all documents are public, and hence neither the treaties nor Regulation 1049/2001 permit the concept of “internal” document and hence do not permit the creation of documents which are prima facie presumed never to be accessible to the public.

Although the Court has stated that refusal to disclose a particularly sensitive legal opinion, in the context of a legislative process, may be justified, “in such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal” (emphasis added). [6] In the Commission’s reply, there is no such ‘detailed’ statement of reasons, firstly, as to why the issue is ‘sensitive’ as compared to other issues that the institution deals with, or, secondly, precisely how the disclosure of the opinion would undermine the protection of legal advice. We note that, while a matter of high importance in terms of ensuring the integrity of and trust in European Union decision making, there is nothing about the lobby register that is particularly sensitive compared with, for example, matters of public security or the fight against terrorism.

Consequently, the Commission has not established that access to each of the three documents at issue could specifically and effectively undermine the protection of legal advice.

The Commission further argues that some of the information contained in the legal advice is ‘of a particularly wide scope’. The Court has accepted that in some instances there may grounds for refusing to disclose a particular legal opinion “having a particularly wide scope that goes beyond the context of the legislative process in question.”[7] Once again, however, the burden is on the institution to give a detailed statement of reasons for the refusal, which in this case the Commission has failed to do, and to indicate to which parts of the documents this grounds for the exception applies. We hereby ask the Commission to confirm whether there is any legal advice in the requested documents that does not relate to the lobby register.

- Article 4(3): The institution’s decision making process

As above, the Commission does not explain how exactly disclosure of each of the three documents could specifically and effectively undermine its decision-making process. The Commission simply states that full disclosure of each of the three documents would “severely reduce the Commission's capacity to take a decision after frank and unbiased internal discussion, free from external interferences, affecting, thus, seriously its decision-making process.” It is far from clear how disclosure would affect its capacity to take a decision on this issue as there is a distinction between the legal advice itself and the Commission’s consideration of that legal advice.

We note that this particular decision-making process is not of the nature that requires it to be carried out in isolation such as, for example, a decision on allocating a tender in a public procurement process after the bids are in. Indeed, this is a decision-making process in which opinions have already been sought from the wider public through a public consultation, and there is an ongoing public debate. Such input enriches the Commissions internal discussions and does not prevent Commission officials from reaching conclusions as to what is in the public interest in a professional and independent manner. None of this is related to public disclosure of the legal advice.

Consequently, the Commission has not established that access to each of the three documents at issue could specifically and effectively undermine its decision making process.

ii. There is an overriding public interest in disclosure

As stated above, this is an alternative argument, in that even if it were to be regarded that disclosure would undermine the given interest, there would nevertheless be an overriding public interest in fully disclosing the documents.

The Commission stated in its reply that "the transparency register is indeed an initiative of public interest". The Commission stated however that there are "no elements capable of showing the existence of an overriding public interest in disclosure of the withheld parts of the documents that would outweigh the public interest in the protection of legal advice and of the decision-making process."

Set out below are the elements that provide evidence of an overriding public interest in disclosure of the withheld parts of the documents:

- Overriding public interest in a balanced and informed public debate to facilitate better decision making

There is overwhelming public support for a mandatory transparency register; 80% of EU citizens agree there should be mandatory regulation of lobbying.[8] The European Ombudsman[9] as well as civil society organisations, including leading groups such as ALTER EU and Transparency International, have taken a clear position in favour of a legally-binding register. Independent legal advice commissioned by ALTER EU concluded that there is a legal basis for a mandatory register.[10]

The European Parliament, the only directly-elected body of the EU institutions and representative of EU citizens, has also declared since 2008 that it prefers a legally-binding transparency register "on the basis of Article 352 TFEU".[11] On the other hand, the Commission in its transparency register roadmap outlined a "choice of IIA instrument" as the more appropriate option.[12] The path being taken by the Commission diverges from the view held by many stakeholders and citizens that reform of the transparency register need be based on Article 352 TFEU.

It should also be noted that the Court stated in Turco that openness “contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.”[13] By not sharing its legal assessment of an initiative of public interest, the European Commission is stymying public debate on this topic, as the public is prevented from discussing and from comparing and contrasting the different legal perspectives.

There exists an overriding public interest in having the documents made fully public in order to allow an informed public debate on the reform of the transparency register.

- Overriding public interest in obtaining the best possible outcome in transparency register reform

The current register system contains various loopholes and deficiencies in serving the purpose for which it was created: to know what interests are being represented at EU level, who represents those interests, and with what budgets.

In 2015, Transparency International filed 4,253 official complaints on inaccurate or implausible entries (around half of the total number of entries at the time),[14] and ALTER EU has also published studies on loopholes concerning, for example, a number of law firms who are not registered in spite of the fact that they also carry out lobbying activities.[15] There is also a need to expand the scope of the register regime to include Permanent Representations and the Council in as lobbying also is directed towards them.[16]

The Commission’s recent public consultation on the register sought input on “what can be improved and how, in order to ensure that the Register fulfils its full potential.”[17] In order to find the optimal path to take to improve the register, there is therefore an overriding public interest in full access to the requested documents in order to understand the Commission’s pursuit of an Inter-Institutional Agreement despite criticism that such a path will not lead to a closing of many of the loopholes and deficiencies in the current system. Such access is also in the public interest given the European Parliament’s preference for a legally-binding mechanism. There is an overriding public interest in knowing, for example, if the Commission may have suppressed one option in favour of another which would produce a weaker outcome.

It is essential that the public be able to access the policy options in order to ensure that the path taken by the Commission to address the reform of the transparency register is indeed, optimal.

- Overriding public interest in ensuring accountability of EU institutions and citizen participation

According to Article 15(1) TFEU, “In order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible.”[18]

Further, according to recital 2 of 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. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.”

Indeed, the Transparency Register website states that "The decision-making process must be transparent to allow for proper scrutiny and to ensure that the Union’s institutions are accountable."[19]

The overriding public interest in full publication of the documents requested derives from the public’s right to good governance and to hold public bodies accountable, as guaranteed by the EU Treaties. Without access to the documents requested, it is impossible for the public to hold the Commission accountable for pursuing the Inter-Institutional Agreement outlined in its roadmap as opposed to a legislative proposal.[20]

The overriding public interest in full access to the requested documents is also supported by the public’s right to participate in the decision-making process, as guaranteed by the EU treaties. Without full access to the documents, the public is unable to make an informed opinion on the path taken by the Commission to reform the transparency register and is hence prevented from exercising its fundamental right to freedom of expression.[21] Hence, if the public is unable to make an informed opinion due to the lack of necessary information, it is unable to exercise its right to participate effectively in the decision making process (informally or formally such as through public consultations).

iii. Failure to indicate which exception applies to which parts of which document

The Commission has redacted the documents based on the two exceptions invoked but has failed to indicate whether all the exceptions apply to all the redacted text of all the documents, or whether there are parts which, for example, fall under only the decision-making exception and not that for protection of legal advice.

B. Protection of personal data

For the purposes of this request, the expunged personal data does not need to be transferred to me.

IV. CONCLUSION

In light of the arguments above, I hereby request full access to the three documents with reference numbers JUR(2006)30417, JUR(2007)30478 and Ares(2013)3191712.

Yours faithfully,

Helen Darbishire
Access Info Europe

FOOTNOTES:

[1] “In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution's reply, make a confirmatory application asking the institution to reconsider its position.”
[2] “Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.”
[3] Note of the Legal Service to the Secretary General of 12 September 2006 (reference JUR(2006)30417); Note of the Legal Service to the Secretariat General of 17 September 2007(reference JUR(2007)30478); Note of the Legal Service to the Head of Cabinet of Vice-President Maroš Šefcovič of 2 October 2013 (reference Ares(2013)3191712).
[4] Judgment of 1 July 2008 in Sweden and Turco v Council, C-39/05 P and C-52/05 P, EU:C:2008:374, at 48.
[5] Ibid. at 49.
[6] Ibid. at 69.
[7] Ibid. at 69
[8] https://www.access-info.org/wp-content/u...
[9] http://www.ombudsman.europa.eu/en/resour...
[10] http://www.foeeurope.org/legal_framework...
[11] http://www.europarl.europa.eu/RegData/et...
[12] http://ec.europa.eu/smart-regulation/imp...
[13] According to recital 6 of Regulation 1049/2001, “wider access should be granted to documents in cases where the institutions are acting in their legislative capacity […] Such documents should be made directly accessible to the greatest possible extent” (emphasis added).
[14] http://www.transparencyinternational.eu/...
[15] http://alter-eu.org/sites/default/files/...
[16] http://alter-eu.org/member-state-offices...
[17] http://ec.europa.eu/transparency/civil_s...
[18] http://eur-lex.europa.eu/legal-content/E...
[19] http://ec.europa.eu/transparencyregister...
[20] http://ec.europa.eu/smart-regulation/imp...
[21] The European Court of Human Rights has confirmed that the right of access to information is an inherent part of freedom of expression in a series of cases: Case of Társaság a Szabadságjogokért v. Hungary (App. No. 37374/05), ECHR, 14 April 2009; Case of the Youth Initiative for Human Rights v. Serbia; Case of Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirt¬schaftlichen Grundbesitzes v. Austria. This has also been confirmed by the UN Human Rights Committee in its General Comment No. 34.