The European Commission stands accused of 'maladministration' for its refusal to disclose documents on the UK opt-out from the Charter of Fundamental Rights, writes the European Ombudsman
Openness in the form of access to documents strengthens democracy. Of particular importance in this context is access to documents relating to the adoption of legislation. Such openness allows citizens to follow in detail the decision-making process and to scrutinise all the relevant information, which forms the basis of a specific legislative act.
If the documents are accessible while the legislative process is ongoing, citizens are therefore empowered to take a fuller and more effective part in the debate regarding the need for, and the content of, prospective European Union legislation. If, on the other hand, the laws have already been adopted, access to documents relating to the legislative process allows the public at the very least to understand better the need for, and the content of, such legislation.
When the laws at issue relates to fundamental rights, access becomes even more important. There is a significant risk that citizens will lose trust in the EU if the institutions do not give full effect to the fundamental right of access to documents, especially to those records relating to the adoption of the EU Charter of Fundamental Rights itself.
In a recent decision, I criticised the European Commission's refusal to give access to documents containing its view of the United Kingdom opt-out from the EU Charter of Fundamental Rights. This refusal followed a complaint from the European Citizen Action Service, a Brussels-based non-governmental organisation that wanted to find out "why UK citizens do not enjoy the same fundamental rights as other EU citizens". The commission rejected my recommendation that it disclose the documents, without giving adequate reasons.
The ECAS lodged a complaint with me about the commission's refusal to give access to five documents, drafted by its services and concerning the British opt-out from the EU Charter of Fundamental Rights. The opt-out 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 explained its refusal by referring to the exceptions to public access allowed for in regulation 1049/2001
, and particularly the need to protect both the legal advice it receives as well as its internal decision-making process.
After having inspected the documents in question, I concluded that the commission's arguments for non-disclosure were not convincing. I pointed out that, in order to deny public access to documents containing legal advice, it is not sufficient for the commission to submit in a general and abstract way; and without substantiated arguments, that its interest will be harmed by public disclosure of the documents. I also found that the commission failed to provide any properly reasoned arguments to the effect - for example - that that the documents contain self-critical, speculative or controversial views that would seriously undermine its decision-making process.
The commission's methodology for considering the possibility of granting partial access to the documents was also questionable, given that it appeared to have released only the parts of the records that it found to be obviously innocuous instead of seeking to establish what parts of these documents would actually cause harm if released to the public.
Finally, the commission allowed itself unilaterally to determine which parts of some of the documents were "relevant" for the ECAS request for access. I pointed out, however, that the fact that parts of a document may be considered "irrelevant" in the eyes of the institution does not constitute a valid reason under Regulation 1049/2001 for refusing access to these parts.
Given that public access to documents concerning how EU law is adopted is key to winning the trust of European citizens, I regret the commission's refusal to give the public appropriate access to the documents in question. Despite my recommendation that it make the documents in question public, the commission only gave partial access. As access to documents is itself one of the fundamental rights guaranteed by the charter and as the commission failed substantively to engage with certain of my arguments, I concluded that such refusal constituted a serious instance of maladministration.
Nikiforos Diamandouros is the European Ombudsman