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Decision on the Council of the European Union’s refusal to give full public access to documents related to negotiations on the draft ‘Digital Markets Act’ (case 1499/2021/SF)

Monday | 27 June 2022

The complainant, a network of journalists from several European countries, requested public access to Member States’ initial comments and questions on the legislative proposal for the Digital Markets Act. The Council refused full public access to the identified documents, arguing that full disclosure would undermine an ongoing decision-making process.

The Ombudsman noted that keeping the public informed about the progress of legislative procedures is a legal requirement. Timely access to legislative documents is crucial for citizens to exercise their treaty-based right to participate in the democratic life of the EU.

In this case, the Ombudsman found that the Council had not sufficiently demonstrated that disclosure of the requested documents would seriously affect, prolong or complicate its decision-making process. She therefore took the view that the Council’s refusal of public access constituted maladministration. She recommended that the Council grant full public access to the requested legislative documents.

In reply, the Council granted full public access to the requested documents. The Ombudsman welcomes the Council’s positive reply to her recommendation. She regrets, however, the time the Council has taken to provide public access. She notes that, due to the passage of more than one year since the request, the documents disclosed are no longer of use for the purpose the complainant had intended, that is, to inform citizens about an ongoing legislative process. Thus, the Ombudsman confirmed her finding of maladministration.

The Ombudsman calls on the Council to make available legislative documents at a time that will allow the public to participate effectively in the discussion.

Recommendation on how the European Food Safety Authority (EFSA) dealt with a request for public access to documents related to a proposal to restrict lead in ammunition (case 2124/2021/MIG)

Monday | 02 May 2022

The case concerns a request for public access to documents held by the European Food Safety Authority (EFSA) concerning lead in ammunition. EFSA took more than seven months to deal with the request, extending the deadline on various occasions. The complainant was dissatisfied with the time taken by EFSA to deal with the request, arguing that EFSA had not given adequate explanations for the delay and that the delay meant it could not participate meaningfully in a related public consultation.

The Ombudsman found maladministration in how EFSA had dealt with the complainant’s access request and, specifically, its failure to comply with the time limits set out in the EU legislation on public access to documents. The Ombudsman makes two recommendations aimed at improving how EFSA deals with requests for public access to documents.

Recommendation on the Council of the European Union’s refusal to give full public access to documents related to negotiations on the draft ‘Digital Markets Act’ (case 1499/2021/SF)

Monday | 28 February 2022

The complainant, a network of journalists from several European countries, requested public access to Member States’ initial comments and questions on the legislative proposal for the Digital Markets Act. The Council refused full access to the identified documents, arguing that their full disclosure would jeopardise an ongoing decision-making process.

Keeping the public informed about the progress of legislation is a legal requirement. It is crucial for citizens to be able to exercise their treaty-based right to participate in the democratic life of the EU. While there may be a reluctance by some Member States to disclose that their position has evolved in the course of a particular legislative process, being willing to change position, and achieve a compromise, is a central part of democratic decision making.

In this case, the inspection carried out by the Ombudsman inquiry team revealed that the Council did not disclose any Member State positions on the legislative proposal in response to the complainant’s request. The Ombudsman found that the Council had not demonstrated that disclosing the documents in question would seriously affect, prolong or complicate the proper conduct of its decision-making.

The Ombudsman therefore considers that the Council’s refusal to grant public access to the positions of Member States constituted maladministration. She recommends that the Council grant full public access to the documents at issue.