Background to the complaint

1. On 16 January 2019, the complainant asked the European Parliament (Parliament) to grant her public access to five legal opinions (dating from 1993, 1999, 2004, 2005 and 2012) regarding the contractual situation of language instructors hired by Parliament to provide linguistic training to its Members (MEPs).

2. On 15 February 2019, Parliament explained that that there was no legal opinion available for 1999, but that it had identified four documents as falling within the scope of the complainant’s request: legal opinions SJ-13/93, SJ-77/05 and SJ-314/12, and Note SJ-246/04.

3. Parliament granted the complainant access to three of these four documents, but refused both full and partial public access to the most recent legal opinion (SJ-314/12) on the grounds that it would undermine the protection of court proceedings and legal advice.[1] This legal opinion discusses the possibility of recruiting language instructors as temporary agents.

4. On 21 February 2019, the complainant filed a request for review, a so-called “confirmatory application”. On 2 April 2019, Parliament confirmed its refusal to grant public access to the document.

5. Dissatisfied with Parliament’s decision, the complainant turned to the Ombudsman on 8 April 2019.

The inquiry

6. The Ombudsman opened an inquiry into Parliament’s refusal to grant access to legal opinion SJ-314/12. The Ombudsman’s inquiry team inspected the requested document.

Arguments presented to the Ombudsman

The complainant’s arguments

7. The complainant argued that there is an overriding public interest in disclosure of the requested document. EU citizens have, she stated, a right to transparent administrative practices and an interest in protecting multilingualism in Parliament. Transparency as regards Parliament’s internal legal discussions concerning the possibilities for recruiting language instructors as temporary agents is necessary in this case to ensure that Parliament respects the rules regarding the contractual situation of its staff and does not abuse its power in its contractual relationship with language instructors. The complainant contends that this public interest outweighs Parliament’s interest in obtaining frank, objective and comprehensive legal advice.

The European Parliament’s arguments

8. Parliament argued that the requested document contains detailed legal discussions of a sensitive nature about the possibility of recruiting temporary agents. It argued that disclosure of the document could hinder Parliament’s ability to receive frank, objective and comprehensive legal opinions in the future and also carried a probable risk of undermining Parliament’s ability to defend itself in court.

The Ombudsman's assessment

9. The Ombudsman notes that, according to case law of the European courts,[2] to rely on the exception set out in Article 4(2) second indent of Regulation 1049/2001, the perceived threat to the protection of court proceedings and/or legal advice must be reasonably foreseeable and not purely hypothetical.

10. Having reviewed all the requested documents and obtained clarification from Parliament’s services as regards the manner in which the document could be relevant to the application of the exception set out above, the Ombudsman is of the opinion that Parliament has provided a convincing justification for refusing to disclose the requested document.  In the context of this case, Parliament was justified in claiming that it is reasonably foreseeable that releasing the requested document would hinder Parliament’s ability to receive frank, objective and comprehensive legal advice in the future and would undermine its ability to defend itself in court proceedings. Given the subject matter of the document, the possibility that it may be relevant in court proceedings is not purely hypothetical.

11. The Ombudsman does not consider there to be any overriding public interest in publicly disclosing this document.

12. The exception was therefore appropriately applied and there was no maladministration.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Parliament.

The complainant and Parliament will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 15/07/2019

 

 

[1] As set out in Article 4(2) second indent of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&rid=1.

[2] See Judgment of the Court of Justice of 1 July 2008, Sweden and Turco v Council, Joined cases C-39/05 P and C-52/05 P, paragraphs 42-43.