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Decision in case 1011/2015/TN concerning the refusal of the Council of the European Union to give access to opinions on candidates' suitability to perform the duties of Judge and Advocate-General at the Court of Justice and the General Court of the EU

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  • Case: 1011/2015/TN
    Opened on 14 Jul 2015 - Decision on 04 May 2016
  • Institution(s) concerned: Council of the European Union
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Requests for public access to documents [Article 23 ECGAB]
  • Subject matter(s): Dealing with requests for information and access to documents (Transparency)

Access Info Europe and the EU Public Interest Clinic asked the Council of the European Union to give them public access to the opinions on the suitability of Member State candidates to perform the duties of Judge and Advocate-General at the Court of Justice and the General Court of the EU. Such opinions are drawn up by a panel of experts and are used by the Member States when they deliberate on whether to appoint a candidate. The Council refused access to the opinions because, it argued, Regulation 1049/2001, the Regulation governing public access to documents held by the Council, does not apply to the requested documents. It sought to justify this assertion by arguing that the procedure for appointing judges and Advocates General is not within the Council's "sphere of responsibility".

The Ombudsman opened an inquiry into the matter, setting out her preliminary view that Regulation 1049/2001 does indeed apply to this request for public access to documents.

In its response, the Council announced that it had reassessed its practice and decided to apply Regulation 1049/2001 to documents held by its General Secretariat in relation to tasks of support to various intergovernmental bodies and entities, such as the relevant panel. The Ombudsman welcomes the Council's policy change. She notes that the complainants have now made a new access request to the Council to be dealt with under Regulation 1049/2001. She therefore considers the Council to have taken steps to resolve the immediate matter. In concluding, the Ombudsman commented on an important issue raised in this case. This is the issue of how to strike the correct balance between the need to protect the personal data of persons being assessed for high public office with the need to ensure maximum transparency in relation to the process of making appointments to high public office. The Ombudsman noted that in such cases the balance to be struck, between the need to protect personal data relating to professional experience and the requirements of transparency, tilts generally in favour of greater openness. She encourages the Council to deal with any future requests for public access to such documents with this approach in mind. Finally, the Ombudsman asked the Council to inform her of the outcome of its decision on the new access request by the complainants. She commented that she will, at that stage, assess whether the Council should be proactive in publishing panel opinions rather than await individual public access requests.