Speech by the European Ombudsman
Professor P. Nikiforos Diamandouros
at the fall meeting of the American Bar Association
Brussels, 25 September 2008
check against delivery
1.
Introduction
I am delighted and honoured to address the fal 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
, of the
American Bar Association, for his kind invitation and for having
afforded me the opportunity to explain to such a distinguished
audience an important aspect of the work of the European
Ombudsman.
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,
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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 al 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 fol owed up by
reconsidering the matter and giving access to al 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
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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 final y adopted, wil 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 al 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
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December 2007, decided,4 by annul ing 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 wil 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 [quote]
"insofar as they are
based on exceptions laid down in this Regulation” [unquote]. 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
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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-cal ed
“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
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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 cal ed 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.
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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).
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