EU’s non-disclosure of UK EU Charter “opt-out” documents is a breach of the EU Charter

13 January 2013 by David Hart KC

Decision of the European Ombudsman on complaint against the European Commission, 17 December 2012 – Read decision

The UK secured what Tony Blair described as an opt-out in respect of the EU Charter on Fundamental Rights as part of the negotiations leading up to the Lisbon Treaty – which contains the Charter. Rosalind English has summarised here what the Charter involves, and whether the “opt-out” really changes anything. This recent EU Ombudsman’s decision concerns the attempts of an NGO to extract certain EU Commission documents in the run-up to the Lisbon Treaty. The EU Commission was taking its usual head-in-the-sand approach to disclosure (see various posts listed below), hence the complaint to the Ombudsman. And, as we shall see, the Ombudsman gave the Commission both barrels in this highly critical decision.

An NGO (the European Citizen Action Service) sought the documents under the EU Regulation (EC) No 1049/2001  This entitles applicants to disclosure of any information relating to the policies, activities and decisions of the EU institutions. But access can be denied under Article 4 for a range of reasons, including economic interests, the taking of legal advice, public security, international relations or if disclosure of the document would seriously undermine the institution’s decision-making process.

The Commission argued that the Treaty run-up documents were covered by the exception to access set out in Article 4(3), concerning the protection of the decision-making process. It said it must be free to submit internal advice and opinions; its ability to express their views freely would be curtailed if it they would have to take into account the possibility of public disclosure. It claimed that its future negotiation strategy might be affected by the knowledge that such documents might see the light of day.

The NGO countered that the Commission failed to fulfil its obligation to balance genuinely the interest of citizens in gaining access to documents held by the institution, against any interest of the institutions in maintaining the confidentiality of their deliberations. The UK opt-out is undoubtedly of public interest: the public has a considerable interest in ascertaining the position, or lack thereof, of the UK Government, the other Member States and the institutions in relation to the opt-out. European citizens have the right to know the reasons why they will not have the same fundamental rights in the UK as they have in the other Member States. The mere fact that the views of the Commission’s representatives will be put in the public domain does not override that interest.

The draft recommendation

The Ombudsman then made a draft recommendation in support of disclosure by the Commission or that it provide valid reasons for not doing so. Transparency was particularly important in respect of documents forming the basis of the EU Treaties – the fact that the documents arose out of an intergovernmental conference about such treaties rendered disclosure more rather than less necessary. He was unpersuaded by the various concerns expressed by the Commission and the lack of real evidence underlying them.

There then followed another round of submissions in response to the draft. The Commission accepted that parts of certain documents could be disclosed, on the basis of its own view as to their relevance but held to its general position on disclosure of the rest, without amplifying its reasons for refusal.

The final recommendation

The Ombudsman noted this lack of movement by the Commission “with serious disappointment”. In strong words addressed by one EU institution to another

 To conclude, the Ombudsman again underlines that this case concerns the fundamental right to public access to documents. Failure to respect this fundamental right is all the more important in this case, given that the documents asked for concern all fundamental rights, that is, they relate to the adoption of the Charter of Fundamental Rights. The Ombudsman therefore takes the strongest view of the Commission’s position. He notes with the greatest regret that the Commission has failed to take this opportunity to address his detailed and constructive reasoning in respect of when and how the exceptions to public access should be applied, thereby disregarding, or deliberately refusing to engage with the Ombudsman’s arguments concerning the case-law of the EU Courts. This justifies the Ombudsman’s conclusion that, in this particular case and for the specific reasons mentioned above, the Commission’s position constitutes a substantive violation of the fundamental right of access to documents foreseen in Article 42 of the Charter.

This is indeed strong stuff. The Regulation may be drafted in such a way that the exemptions virtually swallow the right to access to documents. But that means that it is all the more incumbent on the Commission to carry out a robust weighing up of the pros and cons of disclosure, rather than falling back on all the formulaic arguments against disclosure. The Ombudsman looked at the disputed documents and plainly thought that there was nothing in any of these concerns, hence doubtless why he expressed himself in the way he did.

Another reflection on the run up to this decisions – ECAS sought the documents on 27 October 2007 – a mere 5 years ago, and shortly before signature of the Lisbon Treaty, and when the debate was rather more topical.

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