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Transparency in the EU - the European Ombudsman's contribution

Available languages: en

Dublin, Ireland, 24 February 2011

Speech by the European Ombudsman, Mr P. Nikiforos Diamandouros at the event organised by Transparency International Ireland and the Irish Society of European Law

I. Introduction

Good evening, Ladies and Gentlemen.

I am delighted to be back in Dublin and particularly pleased to be speaking at an event co-organised by Transparency International. I am a member of your Greek Chapter, in a personal capacity. As European Ombudsman, I organised an event with you last year in Brussels to mark the "International Right to Know Day". Thank you also to the Irish Society of European Lawyers for the invitation to speak here today.

Whenever I am called upon to speak on the subject of transparency, I am reminded of the scene in "Yes, Prime Minister", when Sir Humphrey is having lunch with Sir Arnold, his predecessor as Cabinet Secretary. Sir Humphrey asks him how the Freedom of Information campaign is going and Sir Arnold replies "I'm sorry, I can't talk about that".

I, on the other hand, am not shy when it comes to talking about transparency. This evening, I have been asked to speak on:

o First: the possibility of complaining to the Ombudsman, particularly on transparency issues, and how this compares with bringing cases before the Courts;

o Second: the Ombudsman's experience with the implementation of the EU rules on public access to documents, namely, Regulation 1049/2001;

o Third: my thoughts on the ongoing revision of this Regulation.

I plan to speak for around 15 minutes.

II. The right to complain to the Ombudsman

The Maastricht Treaty, which was the first Treaty to mention transparency, also established the European Ombudsman, as part of the citizenship of the Union.

Promoting transparency became a focal point for the Ombudsman from the very start. Two own-initiative inquiries in 1996 and 1999 resulted in virtually all the smaller EU institutions and bodies (including the European Central Bank) adopting rules on public access to documents. Moreover, on the basis of his experience dealing with complaints alleging lack of transparency, the Ombudsman actively participated in the debate leading to the adoption of Regulation 1049/2001.

Year after year, lack of transparency or refusal of access to documents constitute one of the biggest reasons for complaint to the Ombudsman. The main issues raised in these complaints are:

  • excessive delay in dealing with applications;
  • the interpretation of the exceptions to access; and
  • the requirement that each institution should have a public register of documents to facilitate the exercise of the right of access.

I will address these issues in greater detail in the final part of my presentation.

For the moment, I will turn to my first topic, that is, the Ombudsman and the Courts as remedies.

Applicants who are denied access to a document under Regulation 1049/2001 may either go to the EU General Court, or to the European Ombudsman.

The right to a judicial remedy is a fundamental guarantee of the rule of law. The obvious advantage of going to court is that the court's decision is legally binding on an institution.  As regards public access to documents, this means that the EU courts can annul a decision refusing public access to documents, thereby obliging the institution holding the documents to review the request for public access.

The Ombudsman’s role is complementary to that of the courts: it provides an alternative remedy that applicants may use, if they consider it appropriate in their case. During 2010, we completed inquiries into 22 complaints concerning the application of Regulation 1049/2001, 14 of which concerned the European Commission.

One main advantage of the non-judicial remedy which the Ombudsman represents is the fact that he inquires into whether or not there has been maladministration. European institutions, bodies, offices and agencies must respect the rule of law. It follows that, if they act unlawfully, that constitutes maladministration. However, principles of good administration require more of the institutions than merely avoiding unlawful behaviour.

Let me illustrate this point by means of an example.

Regulation 1049/2001 is primarily about dealing with requests for public access to documents. It is therefore, essentially, reactive rather than proactive in nature. In my Draft Recommendation concerning a refusal to provide an Irish citizen with copies of adverse drug reaction reports that he had requested from the European Medicines Agency, I pointed out to the Agency that, alongside its legal obligation to respond properly to requests for public access under Regulation 1049/2001, it would also be good administrative practice to put in place a policy of proactively placing in the public domain, for example on the Agency's website, information of interest to the public. I noted that the principle of transparency implies that EU institutions should seek proactively to identify what information the public needs and then proceed to disseminate that information in a manner that the public can easily understand. When the EU institutions are working in areas, such as control of medicines, which are technically complex, it is especially important that information be presented in a language which the public can easily understand.  Proactive efforts by the EU institutions to provide information will, therefore, normally involve the preparation and publication of new material, as well as providing access to existing documents. In deciding what, when and how to publish proactively, the institutions necessarily have to exercise judgment based on their knowledge of the specific characteristics of their field of work. I am happy to note that the European Medicines Agency is making efforts to comply with my Draft Recommendation.

It is worth noting that my dialogue with the Agency, which focused on good administration, rather than simply on complying with the legal rules, is not something which courts can do.

This example illustrates well how the Ombudsman's focus on maladministration, rather than on questions of strict legality, brings added value for citizens, when compared to the system of judicial review.

I hardly need to add, in a room full of transparency experts and lawyers, that the Ombudsman's services are also free, fast and flexible. These may be factors which citizens may also take into account, when deciding whether to bring a case to the Ombudsman or to go to court.

III. The Ombudsman's experience with Regulation 1049/2001

The adoption of Regulation 1049/2001 was a milestone in the development of transparency at the EU level. Only a few years before, the EU institutions operated on the basis that confidentiality was the rule and that giving access to information and documents was a discretionary exception to that rule. Regulation 1049/2001 enshrines the opposite principle: openness is the basic rule and secrecy is the exception.

Mindsets and culture, however, change more slowly than laws. Although great progress has been made, I do not consider that the administrative culture of the institutions has yet fully come to terms with openness as a basic principle.

I am, nevertheless, convinced that, as a result of the Regulation, the public's ability to monitor the exercise of power by the Union’s institutions has perceptibly increased. The Regulation empowers citizens in relation to the flow of information to the extent that it makes it possible for them to take the initiative to obtain information, in its original context, that has not yet been put into the public domain.

Moreover, the quality of the institutions’ systems for managing and retrieving information and documents has improved, thereby enabling them to operate more efficiently and effectively, as well as more transparently.

The implementation of the Lisbon Treaty and of a legally binding Charter of Fundamental Rights should mark a further step forward in terms of increasing transparency in the Union.

IV. Review of Regulation 1049/2001

As you know, on 30 April 2008, the Commission put forward a proposal to amend and replace Regulation 1049/2001. Discussions on this legislative revision are ongoing.

It is essential that any revision of Regulation 1049/2001 should be a step forwards for transparency and for European citizenship, not a step backwards. Any reform of the Regulation should be guided by what I believe was its original objective; that is to say, facilitating the widest possible access to documents held by the Institutions, so as to enable citizens to scrutinise, and participate in, processes of governance at the Union level.

The Commission's proposal to revise the Regulation contains a number of welcome changes. At the same time, it has been widely criticised by many, including myself, for moving in the wrong direction on some important issues, thereby restricting rather than expanding access to documents.

One argument put forward by the Commission to justify its proposal is that citizens, for whom the Regulation was devised, rarely make use of it. To me this betrays a fundamental misunderstanding of the purpose of transparency. The purpose of transparency is to induce a change in culture within the institutions, with a view to creating a more open and accountable way of working.

The European Parliament adopted amendments to the Commission's proposal that, I am happy to report, seek to expand access. I very much welcome Parliament's position.

The most important development since the Commission presented its proposal is, of course, the entry into force of the Treaty of Lisbon. It would be contrary to the announced objectives of the Lisbon Treaty to do anything other than to improve the level of transparency and accountability in the functioning of the EU.

The Lisbon Treaty also introduces a legal right to good administration. This is of central importance to our discussion this evening. Even if the rules on public access are excellent, citizens cannot enjoy their rights in practice, unless these rules are also well-administered.

The fundamental right to good administration is included in Article 41 of the Charter. It states, inter alia, that [e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union”.

I want to lay stress on the words “within a reasonable time”. I regret that the Ombudsman's experience is that the Commission, in particular, too often fails to respect the deadlines established by Regulation 1049/2001 for dealing with public access requests. Even worse is the Commission’s performance when citizens complain to the Ombudsman in access to documents cases.

The Commission is creating a systemic problem in incurring these delays. It is depriving citizens of their fundamental right to have their affairs handled within a reasonable time.

A systemic problem requires systemic solutions, and it is for this reason that I consider that one effective way of tackling it would be the appointment in the EU Institutions and bodies of information officers, by analogy with data protection officers that already exist in them.

Another systemic improvement would be to take steps to ensure that documents are drafted with a view to ensuring that citizens, organisations and businesses can have the widest possible access to them. Less time would then be needed to deal with applications, fewer confirmatory applications would be needed and the Commission would be better able to respect the deadlines in the Regulation. At the moment, when dealing with complaints about refusal to disclose a document, I often have the impression that no-one thought about public access when the document in question was drafted. Or if they did think about it, they did so defensively, with a view to obstructing, not facilitating, public access.

A third systemic improvement would be to make it unnecessary even to submit an application for public access, by providing a useful, online register of documents and ensuring that the registered document is readily available through a link. This way, the citizen can obtain the document directly, without having to make an application for access.

The EU institutions already make a vast number of documents accessible on-line. But mere quantity is not enough. The good administration of access to documents involves making available the documents that people actually want and organising their availability in such a way that they can be found easily.

The creation and maintenance of such a register is an essential aspect of genuine engagement with citizens. Such engagement should be seen as part of the core business of every institution designed to fulfil the Union’s promises of transparency, participation and good administration.

V. Conclusion

I will continue closely to follow the debate on the revision of Regulation 1049/2001 to ensure the best possible outcome for citizens. Any attempt to reform the Regulation should build on the momentum towards greater openness and not reverse it.

More generally, the Ombudsman will continue to encourage citizens to make use of their right to complain to him about maladministration.

In so doing, he will endeavour to make his modest contribution to the enhancement of the rule of law and to the improvement of the quality of democracy in the EU.

Thank you for your attention.

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