How the European Parliament dealt with a request for public access to a four-column document relating to trilogue negotiations in the adoption of the Digital Markets Act

Present

European Parliament

· Team leader, Office of the Secretary-General

· Director, Directorate for Economic and Scientific Policies, Directorate-General for Internal Policies of the Union

· Head of Unit, Legislative Affairs Unit, Directorate for Legislative and Committee Coordination, Directorate-General for Internal Policies of the Union

· Director, Directorate for Interinstitutional Affairs and Legislative Coordination, DG PRES

· Head of Unit, Transparency Unit, Directorate for Interinstitutional Affairs and Legislative Coordination, DG PRES

· Legal Administrator, Transparency Unit, Directorate for Interinstitutional Affairs and Legislative Coordination, DG PRES

· Trainee, Transparency Unit, Directorate for Interinstitutional Affairs and Legislative Coordination, DG PRES

European Ombudsman

· Michał Krajewski, Inquiries Officer

· Jennifer King, Legal Expert

· Tanja Ehnert, Inquiries Coordinator

· Silvia Fuller, Inquiries Officer

· Leila Kentache, Inquiries Trainee

Purpose of the meeting

The purpose of the meeting requested by the Ombudsman was to clarify the timeliness and specific steps taken by the Parliament to reply to the complainant’s request for public access to a four-column document relating to trilogue negotiations in the adoption of the Digital Markets Act (DMA). In particular, the inquiry team aimed at clarifying whether and why the Parliament referred the applicant in its initial reply to an outdated version of the requested document. Moreover, the inquiry team asked why additional time was needed for inter-institutional consultations in this case.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the Parliament representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular that the Ombudsman would not disclose any information identified by the Parliament as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Parliament’s prior consent.^[1]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the Parliament to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

The Parliament representatives presented the context of the request for public access to the document in question and acknowledged some unintentional delays in its handling. They mentioned that, as the request was part of a campaign initiated by the complainant, numerous other access to documents requests were received in parallel. The relevant Committee of DG IPOL was overloaded by these requests and had experienced fluctuations in its staff, impacting the handling of these access to document requests. They also emphasised the decentralised structure of Parliament’s secretariat and the fact that this type of requests requires coordination on different levels. Moreover, in this case, one of the two other institutions which were consulted on the request had reservations with regard to disclosing the document as long as the trilogue negotiations were still ongoing.

The Parliament representatives stated that Parliament has 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 (the recent De Capitani v Council judgment[2]), that could hopefully contribute to avoiding  such delays in the handling of these  requests in the future. In particular, Parliament is trying to be more proactive in its handling of these requests (for instance, by encouraging secretariats to upload four-column documents to Parliament’s Register. The aim is to come to an approach that is in line with the recent case-law, while still allowing for the necessary consultations within Parliament and with the other institutions concerned. In that sense, Parliament’s representatives recalled that the Court has neither excluded the possibility of applying the exceptions under Article 4 of Regulation 1049/2001 to legislative documents, nor found an obligation to proactively publish such documents. Indeed, within Parliament, such systematic proactive publication of, for example, all four-column documents on the Public Register would have to be based on a political decision taken by the Parliament's Bureau, as the automatic publication of certain documents is performed in accordance with the Decision of the Bureau of the European Parliament of 8 March 2010 adopting a list of the categories of documents directly accessible to the public via the public register[3].

The Ombudsman inquiry team then asked why the requested document was not identified at the stage of the initial reply. The Parliament representatives replied that an unintentional error had occurred and that they could not figure out what exactly had gone wrong in the procedure.

The inquiry team also asked about the specific reasons that had led to the delay of Parliament’s response at confirmatory level until after the extended deadline for response had lapsed. The Parliament representatives set out the following elements:

· The initial application concerned a document related to a meeting of 3 February 2022, while the confirmatory application requested Parliament to provide the “most recent” four-column document related to the DMA procedure. As a consequence, and since the initial application was believed to have been handled positively, it was necessary to investigate whether or not the confirmatory application could be treated as such and which document would be concerned, i.e. either the document that should have been provided at initial level, or a document produced at a later date.

· The complainant had initiated a “campaign” by posting a tweet on social media, encouraging others to request documents related to the DMA procedure. This led to the filing of numerous requests for access to the four-column document at stake, as well as to other related documents, which considerably increased the workload of the staff handling access to document requests. In this way, the complainant was primarily responsible for generating the high degree of public interest evoked in the complaint. In total, Parliament received 65 applications related to the DMA procedure. The Parliament representatives also mentioned the specific time in which this request was processed, that is, between winter holidays and Easter holidays.

· The shortage of staff for dealing with public access requests in the relevant time period and the significant amount of public access requests that the Parliament had received in parallel to the DMA campaign (85 other applications, leading to the assessment and disclosure of 236 documents).

· The constant inflow of applications forming part of the campaign stretched over nine days, making it difficult for the Unit to develop an approach without investigating the origin and full extent of the campaign.

· The handling of such requests relating to documents forming part of the legislative process requires double consultation: an internal one, within the Parliament’s General Secretariat and with the relevant committees, and an external one, based on a memorandum of understanding with the Commission and the Council. In this case, the consultation took 10 working days and the replies received from the institutions showed discrepancies. Recalling the principle of loyal cooperation among the Union’s institutions, the Parliament representatives explained that they had to give consideration to the reluctance of one of the consulted institutions to disclose the requested document. In addition, a consultation of the Legal Service is a requirement in the standard procedure for handling confirmatory applications, in particular in cases where Parliament’s decision may diverge from the views of one or more of the consulted parties.

The above described elements, i.e. the campaign initiated by the complainant, the need to understand the nature of the confirmatory application, the high workload and concurrent staff shortage and the need to consult extensively, ultimately led to the delay.

A follow-up question by the inquiry team sought to clarify whether, following consultations with other institutions, the Parliament generally follows the other institutions’ views or carries out its own assessment of the case, even if it would lead to ‘overruling’ the other institutions. The Parliament representatives replied that the Parliament tries to consider as much as possible the concerns expressed both within internal and external consultations, but that eventually it is up to the Parliament to take the final decision under Regulation 1049/2001. They underlined that the process of consultations is important because there might be circumstances the Parliament is not aware of, but that, in practice and at the time of the confirmatory application was lodged, Parliament had not refused public access to documents concerned in legislative negotiations since 2018. Nonetheless, they highlighted that four-column documents are joint documents, created together with the other two institutions.

A further follow-up question concerned whether the Parliament, in cases like the one at hand, where it receives numerous requests concerning the same document, considers the document’s proactive publication. The Parliament representatives replied that any publication in light of a request for public access takes place in accordance with Regulation 1049/2001.

The Ombudsman inquiry team asked why the document was not released earlier, that is immediately after the last trilogue of 27 March 2022 at which the final agreement on the DMA was reached, and immediately after the Commission and the Council provided their views within the inter-institutional consultations on 24 March 2022. The Parliament representatives replied that this was not feasible in light of the timeline for handling the request: The Council sent its reply on 24 March and the Commission on 25 March. It then took three days to prepare the draft decision, which was sent to the Legal Service on 30 March. A reply was received on 6 April and the decision was revised on 7 April before being approved.

In the light of the information shared during the meeting, the inquiry team asked whether and, if so, how the above-mentioned measures currently being considered by Parliament may reduce the delays caused by internal and external consultations. The Parliament representatives replied that the measures mainly aim at streamlining the internal procedures for handling requests for public access and improving its document management system. In this context, they expressed concerns as to the time limits set out in Regulation 1049/2001, which were described as sometimes too strict, especially in cases involving a large document, such as in the present case. It must be recalled that Regulation 1049/2001 was adopted in 2001, before trilogues became the main forum for legislative negotiations, and that the prescribed deadlines are extremely tight when it comes to trilogue documents which are often very long and of a highly technical nature, while requiring extensive consultations before a decision on their disclosure could be taken. Nonetheless, they referred to statistics that show that, outside of campaigns, requests for public access to four-column documents less often lead to an extension of the deadline than other cases, and that extensions are in general only used in a limited number of cases. In this sense, if the two most important campaigns, including the one initiated by the applicant, are set aside, the deadline extension rate for applications overall was 15% in 2022, while the deadline extension rate for trilogue-related requests alone was 8%.

The inquiry team also asked about the development of a joint legislative portal for publication of documents forming part of the legislative process. The Parliament representatives confirmed that work was on-going on this project but that is too early to identify which documents will be made available.

Conclusion of the meeting

The inquiry team thanked the Parliament representatives for their time and for the explanations provided, and the meeting ended.

Brussels, 2 May 2023

 

Michał Krajewski                     Silvia Fuller

Inquiries Officer                      Inquiries Officer

 

[1] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[2] Judgment of the General Court in Case T-163/21, De Capitani v Council, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=269684&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2367198.

[3] Decision of the Bureau of the European Parliament of 8 March 2010 adopting a list of the categories of documents directly accessible to public via the public register https://www.europarl.europa.eu/RegData/PDF/rev_801268_1_EN.pdf