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Questions about Europe?Your Europe - The portal to on-line European and national public servicesTreaty of Lisbon

Experiences of investigating complaints about maladministration in the EU institutions, especially regarding access to documents

Available languages: en

Stockholm, Sweden, 08 September 2009

1 Opening remarks

Good morning, ladies and gentlemen!

It is a great pleasure to be in Stockholm for the second time this year. In June, I was here for the world Congress of the International Ombudsman Institute, when we celebrated the 200th anniversary of the Swedish Parliamentary Ombudsman. I am delighted that my friend and colleague Mats Melin, the Chief Parliamentary Ombudsman of Sweden, is also speaking here today.

I would like to thank the Swedish Presidency and especially the Minister for Justice, Mrs Ask, for inviting me to tell you about my experience in investigating complaints regarding access to documents.

Like the ombudsman, the Smörgåsbord, and Abba, the right of public access to official documents is a Swedish invention. Like them, it has travelled far and inspired many imitations -- imitation, according to an old saying, being the sincerest form of flattery.

Before talking about the right of public access to documents held by the EU institutions, I want to say just a few words about clear legal language.

I am not a lawyer, but I read many texts drafted by lawyers. In my experience, when a legal text is difficult to understand, it is usually for one or more of three reasons. First, the author doesn't know what he or she really wants to say. Second, the author did not take the time, or lacked the skills, to review the text and improve its readability. Or third, the author has deliberately left things vague or ambiguous, usually because there are multiple authors who do not agree what they want.

As an ombudsman, I tend to think that all three explanations could be evidence of maladministration, though -- fortunately for me -- I do not have to deal with complaints about EU legislation.

Finally on this topic, let me say that I have made great efforts to improve the readability and user-friendliness of the texts produced by my own office; in particular, the decisions on complaints. The results, I believe, are encouraging and I shall continue vigorously to pursue my efforts in this direction.

2 Access to documents held by the EU institutions

Now let me focus on public access to documents.

Access to documents held by the EU institutions is a fundamental right under the EC Treaty and the Charter of Fundamental Rights. There is an EU Regulation - Regulation 1049/2001 -- which gives effect to that right.

If you are refused access to a document, the Regulation gives you a choice of remedy: you may go either to the Court, or to the Ombudsman.

Year after year, lack of transparency is one of the biggest reasons for complaint to the Ombudsman. Some of the cases I deal with in this area concern access to documents. In the four years 2005-2008, I completed inquiries into 53 cases concerning the rules on access. The main issues raised in these complaints were:

  • 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.

Based on the Ombudsman's experience in dealing with complaints, my view is that the adoption of Regulation 1049/2001 was a real landmark for transparency at the level of the Union. Only a few years before, the Union institutions had 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 believe that the administrative culture of the institutions has yet fully come to terms with openness as a basic principle.

3 The possible revision of Regulation 1049/2001

For that reason, the on-going legislative procedure for revision of Regulation 1049/2001 presents a danger as well as an opportunity. The Regulation's contribution to transparency is not an acquis. That is to say, we cannot assume that any revision of the Regulation will be an improvement.

On the contrary, I believe it is important to be vigilant to avoid the very real danger of stepping backwards from the existing law, as interpreted by the Courts and as applied by the Ombudsman and the European Data Protection Supervisor.

I have explained my detailed view of the Commission's proposal to revise the Regulation on a number of occasions. Today, I will mention just one issue, but to me it is the most important. The net effect of the Commission's proposal would be to narrow the definition of "document", so that nothing would count as a document unless it was "formally transmitted to one or more recipients or otherwise registered".

Here in Stockholm that might seem like a sensible and reasonable proposal and from my conversations with many of its drafters, including Commissioner Wallström, I am persuaded that is indeed their intent. However, Brussels is not Stockholm and the EU institutions do not operate in the same way as Swedish public authorities. In practice, people working in the EU institutions have a great deal of discretion in deciding whether or not to register something as a document. They also have many possibilities to use informal methods to transmit documents to people outside the institutions. If the Commission's proposal were adopted, I fear it would create a large grey zone, in which access to documents would become, once again, a discretionary favour rather than a legal right.

For this reason, I was delighted that the European Parliament adopted the Cashman report in March this year. That report rejects the Commission's proposal to narrow the definition of "document".

It also contains many other valuable changes and additions to the Commission's proposals. It includes, for instance, the excellent idea that each EU institution should appoint information officers, who would be responsible for the correct application of the access to documents rules. I believe that this measure, which draws inspiration from the very successful network of data protection officers already operating within the EU institutions, would make a real contribution to changing the culture of the institutions towards greater openness.

Let me mention one other improvement contained in the Report, which specifically relates to the Ombudsman. This is the idea of allowing an applicant whose initial application is refused to turn to the Ombudsman before making a confirmatory application to ask for my view on the risk of harm and the possibility of an overriding public interest.

This proposal has been criticised as being incompatible with the Ombudsman's role under the Treaty. I find that argument surprising, indeed distressing, because it implies that the Ombudsman cannot co-operate with the institutions in order to prevent maladministration. All he can do is criticise maladministration once it has occurred. That, however, is not the model of the ombudsman institution as it has spread throughout Europe.

Of course, I already carry out the kind of substantive assessment the Cashman report envisages. Just before the summer, for example, I made a draft recommendation to the Commission to release certain documents concerning the construction of an industrial port in Spain. That recommendation was based on an inspection of the documents, which led me to conclude that disclosure of most of them would improve the Commission's decision-making process rather than undermine it. However, I agreed with the Commission that one of the documents should be kept secret, because its disclosure would indeed undermine the decision-making process. Furthermore, I took the view that there was no overriding public interest in disclosure.

I think it would be helpful if I could make such assessments at an earlier stage, so that both the institution and the applicant could benefit from the Ombudsman's independent and objective view on the question of harm and/or overriding public interest before the institution takes its final decision.

That is indeed what the Cashman Report suggests.

I very much hope that the Swedish Presidency will be able to steer the current legislative process so that the Council, like the European Parliament, moves in the right direction. That is to say, forwards not backwards.

I would like to profit from this opportunity also to inform you about two on-going inquiries of the Ombudsman where potentially a positive input from the Swedish Presidency would be very valuable for me.

4 The interaction between Regulation 1049/2001 and national laws on access

The first concerns the interaction between Regulation 1049/2001 and national laws on access. A Polish NGO complained that the Commission had refused access to the reasoned opinion which it, that is the Commission, had sent to Poland in an infringement procedure.

(Let me explain the two pieces of "Euro-jargon" that I have just used. One of the Commission's tasks is to ensure that the Member States apply EU law fully and properly. If it suspects non-compliance, the Commission can investigate and eventually bring proceedings against the Member States in the Court of Justice. That is called the "infringement procedure". The "reasoned opinion" is the last major step in the investigation process. In it, the Commission formally sets out what it thinks the Member States has done wrong).

I took the view that there were no grounds for an inquiry, because the case-law clearly entitles the Commission to refuse access to reasoned opinions.

However, Regulation 1049/2001 would not prevent the national authorities from disclosing a reasoned opinion if they wished to do so, or if national law obliged them to do so. I therefore suggested that, in future cases, the Commission could inform applicants that they could ask the national authorities for access. The Commission replied that it would not do this. It said that, if the national authorities received such a request, they would be likely to consult the Commission, which would give a negative opinion. Therefore, inviting the applicant to submit a request to the national authorities would be misleading.

I am doubtful about the Commission's reply. Let me explain why. The case-law that justifies refusing access to reasoned opinions says that the Member State is entitled to enjoy confidentiality in the infringement procedure. In my view, that does not mean that EU law entitles the government of a Member State to refuse access to documents in the infringement procedure regardless of the position under national law. In my view, if a Member State refuses to give its citizens access to documents in the infringement procedure it should take responsibility for that decision under national law, not hide behind the Commission. Otherwise, there is a risk that national laws on access would, in substance, be harmonised downwards.

I thought this issue important enough to bring to the attention of the Member States' permanent representations and to invite their comments. The comments I have received until now have mainly supported the Commission's view. So far, I have not heard from the Swedish authorities, but I am hoping that they will give me the benefit of their view on this important issue before I conclude my inquiry.

5 Inspection of documents

The second issue concerns the Ombudsman's right to inspect documents during an inquiry. I am currently dealing with three complaints where the Council has refused to give the complainants access to certain documents. My job as Ombudsman requires me to take a view as to whether those refusals are justified. To do that, I need my services to inspect the documents concerned and report to me.

The Council has agreed to an inspection, but subject to the condition that no notes may be taken of certain of the documents concerned. These documents are classified as "RESTREINT", which - I am sure you know - is the weakest of the four security classifications applied to Council documents. The Council believes that this restriction would not put at risk the legitimate purpose of the inspection. It points out that it has already submitted detailed observations on the complaints, describing the content of the documents in question and substantiating the reasons for refusal. It says that consultation of the documents will fully allow my services to understand and ascertain the validity of the reasons invoked by the Council.

That may be so. But in order to fulfil my role as Ombudsman, I must personally take a view as to whether the Council's refusals of disclosure are justified or not. I am the person the European Parliament has elected as Ombudsman and I am responsible for deciding on the three complaints. To do so, I need my services to report to me in sufficient detail, and with sufficient explanation, to allow me to make my decisions.

I do not see how my staff could do that without taking notes. I am ready to accept that the notes should not contain direct quotations, that the notes should themselves be treated as confidential, and that they would be destroyed after my services had reported to me.

You might think that I could participate personally in the inspections. But reflect on what that would mean in practice. It would not be sufficient just to turn up and read the documents. If my staff and I could not take notes, my decision would have to be drafted, discussed and accepted by me – all on the Council's premises. In other words, we would have to work on the Council's premises. We would need the infrastructure to make that possible: offices, computers, printers, telephones, access to our network. And I could hardly be expected, as Ombudsman, to work under supervision, so we would also need full access to the documents we were inspecting without the presence of Council staff.

But, if the Council does not trust us to take notes, why should they trust us to work with the documents without supervision?

If the Council's Information Working Party had the opportunity to discuss these matters in detail, I believe they would recognise that there is really only one question. Does the Council trust the Ombudsman enough to let him to carry out his functions under the Treaty?.

I wrote to the Swedish Minister for Europe, asking for the help of the Swedish Presidency in arranging for me to meet the Information Working Party to discuss this matter. I am pleased to report that Mrs Malmström and Mrs Ask have agreed to propose this to the Council's general secretariat. I therefore hope that the mater will soon be resolved in a satisfactory way.

In conclusion, I would like to congratulate the Swedish presidency warmly for having organised this seminar. Legal rights, including the fundamental right of public access to documents are essential for the empowerment of citizens. But they are not enough.

As well as making it easy for citizens to exercise those rights and providing effective remedies when things go wrong, we also need to use language that is as clear and straightforward as possible. Otherwise, there is little prospect of citizens understanding what the EU institutions are doing and what their national authorities are doing in relation to EU matters.

We need to promote such understanding so that citizens can engage with the reality of Europe, which is about what happens in the Member States, as much – if not more – than it is about what happens in Brussels. Such understanding and engagement are greatly needed in order to raise the quality of democracy, both at the EU level and at the national level. And one important way of raising and enhancing the quality of democracy is to strengthen the rule of law at both levels of Union and, in so doing, inform citizens and empower them fully to enjoy their rights.

Thank you for your attention.

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