Background to the complaint

1. On 7 February 2022, the complainant, representing four civil society organisations, made a request for public access to the latest four-column document related to the trilogue negotiations concerning the Digital Markets Act (DMA).

2. In its initial decision, the Parliament informed the complainant that all available information on that procedure, including the latest four-column document, was available online and provided the link to the relevant website.

3. Dissatisfied with the Parliament’s reply, on 26 February 2022, the complainant asked the Parliament to review its decision (by making a ‘confirmatory application’). He stated that “leaked documents” showed that the information available on the Parliament’s website was outdated. He urged the Parliament to send him the most recent four-column document regarding the DMA trilogue.

4. On 18 March 2022, the Parliament extended the deadline for replying to the complainant.

5. On 11 April 2022, the Parliament informed the complainant that it would not be in a position to reply within the extended deadline but that it would issue a reply as soon as possible.

6. On 27 April 2022, the Parliament replied. It identified a four-column document of 25 February 2022 as falling within the scope of the request (as the latest version of the document at that time). It granted full public access to the identified document.

7. Dissatisfied with the time taken to process the request, the complainant turned to the Ombudsman.

The inquiry

8. The Ombudsman opened an inquiry into the reasons for the time taken by the Parliament to process the complainant’s request.

9. During the inquiry, the Ombudsman inquiry team met with Parliament representatives and discussed the specific steps taken to reply to the request. The report from this meeting[1] was shared with the complainant, who provided comments.

10. Moreover, the Ombudsman inquiry team inspected the documentation concerning the Parliament’s consultation of the Council of the EU and the European Commission, as co-authors of the requested document, on the access request.

Arguments presented to the Ombudsman

11. The complainant was dissatisfied with the delay incurred by the Parliament in dealing with the request for public access to the four-column document.

12. The complainant pointed out that the extended deadline for the confirmatory decision had elapsed on 11 April 2022, whereas public access had been granted on 27 April 2022 only. In his view, at that time, the document could no longer enable EU citizens to participate in the EU legislative process in question, as an agreement was found during the trilogue negotiations at the end of March 2022.

13. Moreover, the complainant contended that this case exemplified a systemic practice of delaying public access to legislative documents.

14. The Parliament argued in its confirmatory decision that the requested document was drawn up in an inter-institutional setting and that it thus had to consult the European Commission and the Council of the EU before disclosing it. It said that it had to consider the reluctance of one of the consulted institutions to disclosure for as long as the trilogue negotiations were ongoing.  

15. Due to these external consultations and the need to consult internally within the Parliament, the Parliament considered that it had not been possible to handle this request more promptly.

16. During the meeting with the Ombudsman inquiry team, Parliament representatives emphasised that the case law does not exclude the possibility of applying exceptions under Article 4 of Regulation 1049/2001 to legislative documents. Each document requires an individual assessment.

17. Moreover, Parliament representatives noted that the request was part of a campaign initiated by the complainant, which resulted in numerous other access requests being submitted to the Parliament at the same time. This campaign thus led to an increase in the Parliament’s workload in the relevant period.

18. Parliament representatives also stated that Parliament had already taken some horizontal steps to raise awareness on different levels on the recent developments on public access to documents, especially in view of the recent case-law on the matter, that could hopefully contribute to avoiding such delays in the handling of requests to legislative documents in the future.

The Ombudsman's assessment

19. This case concerns a request for public access to a document tracing the progress of ongoing negotiations between the Parliament, the Council and the Commission (referred to as ‘trilogues’) in the context of the adoption of the DMA. The document sought by the complainant sets out the initial positions of the three institutions at the start of the trilogue negotiations, which are public, and contains a fourth column taking stock of provisional compromises found or to record comments by the three institutions made during the negotiations.[2] It is often referred to as the ‘four-column document’.

20. According to the EU legislation on public access to documents, requests for public access must be handled‘ promptly’[3] and, at the very least, within the applicable time limits. The EU institutions and bodies must reply to access requests within fifteen and, in exceptional cases, within thirty working days at the latest. Where access is refused, applicants may ask the institution concerned to review its position, by making a ‘confirmatory application’. The institution concerned has then another maximum of thirty working days to reply to the confirmatory application. In this case, the complainant received access at confirmatory stage only, and approximately two weeks after the extended deadline had elapsed.

21. The Ombudsman has on many occasions taken the view that ‘access delayed is access denied’.[4] Documents and information sought by requesters are often time sensitive and can lose relevance to the requester if delays occur. This is particularly the case for requesters seeking access to documents in order to influence ongoing legislative processes.

22. Indeed, EU citizens have the “right to participate in the democratic life of the Union”.[5] This is particularly important when EU institutions act in their “legislative capacity”.[6] The Court of Justice has held that wider access must be granted to legislative documents.[7]

23. Trilogues constitute an integral part of the legislative process,^[8] and trilogue documents should not be treated differently from other legislative documents.^[9] If citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information. The expression of public opinion in relation to a particular provisional legislative proposal or agreement made in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights. This is because, as recognised by the General Court, the trilogue agreements are generally adopted by the co-legislators without substantial amendment.^[10]

24. In this context, timely access to legislative documents is crucial. Thanks to public access to these documents, citizens may understand the choices made by the EU institutions during the legislative process. Therefore, they must obtain access to these documents “in good time, at a point that enables them effectively to make their views known regarding those choices”.[11]

25. Thus, when handling requests for public access to legislative documents, the EU institutions must observe the statutory time limits, their duty to handle the requests ‘promptly’, and their duty to provide public access ‘in good time’ to enable applicants to influence the legislative process.

26. The complainant in this case made his initial request to the most recent version of the four-column document on 7 February 2022, but received access on 27 April 2022 only, after political agreement between the three institutions had already been reached and the trilogue negotiations had ended. The complainant considered that this delay prevented him from influencing effectively the ongoing legislative process.

27. The Parliament noted that, while the wrong document was identified at initial stage due to an “administrative error”, it could not process the confirmatory application within the statutory time limit of thirty working days due to (1) the need to conduct an individual assessment of the document and internal consultations, (2) the need to consult the Council of the EU and the Commission as co-authors of the document, and (3) a high workload in the relevant period in view of a campaign launched by the complaint which resulted in numerous access requests being submitted to the Parliament at the same time.

28. The Ombudsman is not convinced by the Parliament’s explanations.

29. First, as regards the need to analyse the document and conduct internal consultations, the Ombudsman acknowledges that it remains open to the institutions to refuse granting public access to legislative documents, on the basis of an exception in Regulation 1049/2001, if there are “tangible elements” from which it can be inferred that the risk of undermining decision-making process is “reasonably foreseeable and not purely hypothetical”,[12] and that an individual assessment of the fourth column might thus be necessary. It is difficult to see, however, how such an individual assessment of the fourth column of one document would take longer than fifteen let alone thirty working days.

30. Second, while the Ombudsman acknowledges that the Parliament had to consult the Council and the Commission on the access request, such consultations need to take place within the statutory time limits.

31. The inspection of the documentation relating to that consultation showed that, while the Parliament received the confirmatory application on 26 February, it consulted the other two institutions on 16 March only, that is, two days before the initial fifteen working day deadline expired. The Ombudsman draws the Parliament’s attention to a recent suggestion she made in the context of an own-initiative inquiry into the time taken by the Commission to reply to requests for public access to documents, namely that, at the outset of the procedure, following the registration of a request, the institution should verify whether external consultation will be necessary and, if so, launch that process in a timely way.[13]

32. The Ombudsman further notes that, according to a Memorandum of Understanding between the three institutions, the consulted institution should provide its position within five working days. The Commission and the Council replied to Parliament’s consultation on 24 March and 25 respectively, but Parliament adopted its confirmatory decision on 27 April only.

33. Finally, it is unclear how a campaign, which according to the Parliament was launched by the complainant, contributed to a delay in this case. Arguably, the multiple requests sent to the Parliament related to the same document or its successive versions. Processing such similar requests should not significantly affect the above-mentioned processes of analysing the contents of the requested documents, and of conducting the necessary internal and external consultations.

34. As the complainant argues, even the seemingly short delay of approximately two weeks may have prevented interested citizens from participating effectively in the legislative process in question. This was because, as the complainant points out, the EU institutions had reached an agreement regarding the legislative file in question before they granted public access to the relevant four-column document. The complainant contends that the delay was intentional. While the Ombudsman did not find any evidence in this regard, she notes that the Parliament indicated that there were concerns about disclosing the table while the decision-making process was still ongoing.

35. The Ombudsman has already taken the view that failure to comply with the time limits laid down by the legislator cannot be good administration.[14]

36. In view of this, the Ombudsman considers that the delay in handling the complainant’s request for public access to the four-column document amounted to maladministration. However, as the Parliament has in the meantime granted full public access to the document, the Ombudsman considers that issuing a recommendation at this stage would serve no useful purpose.

37. The Ombudsman trusts, however, that, in dealing with future requests to documents, and in particular to legislative documents, Parliament will reply ‘promptly’ to such requests, ‘in good time’ to allow the public to influence the ongoing legislative process, and in any case, within the statutory time limits, taking into account the above observations.

38. The Ombudsman further notes that the Parliament is likely to receive (multiple) requests regarding four-column documents in legislative files of public interest also in the future. It should therefore consider publishing such documents proactively and in line with Article 12 of Regulation 1049/2001, whenever possible. This way, Parliament would reduce the need to process individual access requests while ensuring timely public access to legislative documents.

Conclusion

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

The delay in handling the complainant’s request for public access to the four-column document constituted maladministration.

The complainant and the Parliament will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 24/07/2023

 

 

[1] https://www.ombudsman.europa.eu/en/doc/inspection-report/en/172667

[2] The document is available here: https://www.europarl.europa.eu/RegData/publications/trilogue/2020/0374/NEGO_CT(2020)0374(2020-02-22)_XL.pdf

[3] Article 7(1) of Regulation 1049/2001.

[4] Recommendation on the time the European Commission takes to deal with requests for public access to documents (strategic inquiry OI/2/2022/OAM), https://www.ombudsman.europa.eu/en/recommendation/en/167661.

[5] Article 10 of the Treaty on European Union (TEU).

[6] Recital 6 of Regulation 1049/2001.

[7] Judgment of the Court of Justice of 8 June 2023, Case C-408/21 P, Council v Pech, para. 41, https://curia.europa.eu/juris/document/document.jsf?text=&docid=274436&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2491542

[8] Judgment of the General Court  of 22 March 2018, Case T-540/15, Emilio De Capitani v European Parliament, para. 73, https://curia.europa.eu/juris/document/document.jsf;jsessionid=B6017E2F0CC0B498CCF7366C194B48D5?text=&docid=200551&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3484503.  

[9] Judgment of the General Court  of 22 March 2018, Case T-540/15, Emilio De Capitani v European Parliament, para. 74, https://curia.europa.eu/juris/document/document.jsf;jsessionid=B6017E2F0CC0B498CCF7366C194B48D5?text=&docid=200551&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3484503.

[10] Judgment of the General Court of 22 March 2018, Case T-540/15, Emilio De Capitani v European Parliament, paras. 72 and 98, https://curia.europa.eu/juris/document/document.jsf;jsessionid=B6017E2F0CC0B498CCF7366C194B48D5?text=&docid=200551&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3484503.

[11] Judgment of the Court of Justice of 4 September 2018, ClientEarth v Commission, Case C-57/16 P, para. 84, https://curia.europa.eu/juris/document/document.jsf?text=&docid=205322&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2494295

[12] Judgment of the General Court  of 22 March 2018, Case T-540/15, Emilio De Capitani v European Parliament, para. 65, https://curia.europa.eu/juris/document/document.jsf;jsessionid=B6017E2F0CC0B498CCF7366C194B48D5?text=&docid=200551&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3484503.

[13] Recommendation on the time the European Commission takes to deal with requests for public access to documents (strategic inquiry OI/2/2022/OAM), https://www.ombudsman.europa.eu/en/recommendation/en/167661.

[14] Recommendation on the time the European Commission takes to deal with requests for public access to documents (strategic inquiry OI/2/2022/OAM), paragraph 2, https://www.ombudsman.europa.eu/en/recommendation/en/167661