Ms Ursula von der Leyen President European Commission

 

Dear President,

In its 2023 Rule of Law report, the Commission noted shortcomings in the performance of certain Member States as regards public access to documents. Of particular concern are delays in handling requests (Belgium, Denmark, Croatia, Luxembourg, Finland, Poland) and failure to comply with ombudsman/information commissioner recommendations (Croatia, Malta).

I recently had the opportunity to discuss these two issues, as regards the Commission, in a constructive meeting with your Secretary-General and Chief Operating Officer. I drew attention to cases where the Commission had failed to accept my recommendations, and where its failure to do so was difficult to comprehend, given the clear and essentially irrefutable arguments set out. I also drew their attention to 15 ongoing inquiries in which the Commission’s delay in replying to public access requests had gone beyond six months and which extended to more than 18 months in some cases. I regret to say that, despite the Commission’s commitment to prioritise these cases, only three of them have been finalised in the two months since that meeting.

As regards compliance, I singled out case 1945/2023/MIG concerning the Commission's refusal to give public access to documents concerning meetings with an organisation that works on fighting child sexual abuse. On the rare occasions where I identify maladministration, I expect the consequent recommendations to be accepted. This is in the interests of the institution and, critically, in the public interest. Following my recommendation in this case, the complainant was granted full public access to the documents by the national authority of an EU Member State. Despite this, the Commission maintained its original arguments in its decision on the public access request, and refused to comply with my recommendation. I have now closed this inquiry, confirming my finding of maladministration.

The Commission’s approach to this and certain other cases[1] may cause people to raise questions about your institution’s willingness to respect the checks and balances in the system of EU administration, including the Office of European Ombudsman. While I appreciate the challenges the Commission faces in these times, and the multiple pressures and demands on it, I also appreciate the concerns of many citizens about the rule of law challenges they face in some Member States, challenges at times made visible by attempts to undermine the democratic systems of checks and balances from official watchdogs to civil society organisations to media.

Given all of that, it is not unreasonable for me to insist that the Commission must be the standard bearer - as it is obliged to be in any event under the Treaties - when it comes to securing the central position of the rule of law within the European Union. Individual access cases might seem of minor importance when it comes to more serious rule of law transgressions elsewhere, but history shows us that the failure to deal with small issues as they arise risks an escalation of matters with negative consequences for democracy and for the rule of law. It also risks damaging the particular interests of the Commission by enabling those hostile to the EU to attack it.

The European Ombudsman’s Office has a long history of good cooperation with the Commission, and I was happy to receive reassurances during my meeting with the Secretary-General on 8 May 2024 that the Commission would redouble its efforts to this end. In this vein, I was encouraged to review the Commission’s recent reply in case 529/2024/TM in which it confirmed that it had adopted a new decision to give effect to the Ombudsman’s views in that case. The Commission’s response of 10 July to my solution proposal in case 1647/2023/NH, where it agreed to disclose an internal email exchange, is another excellent example.

I hope this can mark a turning point for improved cooperation in the future and urge you, once again, to ensure your services complete their work on the cases in the attached list, which are now of the greatest urgency.

Yours sincerely,

 

Emily O'Reilly

European Ombudsman

Strasbourg,12/07/2024

 

[1] For example, cases 1033/2023/MIK and 1731/2022/OAM.