The Ombudsman has opened an inquiry into the extent to which the European Parliament, Council of the European Union, and European Commission apply EU law and EU court decisions when it comes to public access requests for legislative documents.

She noted that past inquiries related to insufficient and delayed public access suggested that these institutions are not currently giving full effect to EU law and related case law.

For example, the Council refused to give full public access to a legal opinion related to an EU trade agreement with the United Kingdom by invoking an access exception for legal advice. It did this even though a recent EU court judgement had found that whether a legal opinion is particularly sensitive depends on the content of the opinion itself and not its status as a legal opinion. The Ombudsman inspected the opinion and did not find that the information contained in it should be regarded as sensitive.

In another case, the Commission refused to fully disclose documents regarding envisioned revisions to EU rules on chemical substances, arguing that disclosure could undermine commercial interests and an ongoing decision-making process. However, the Commission presented  general arguments, which did not prove this risk with the level of certainty required by recent EU court rulings.  It also used arguments previously dismissed by the EU Courts in similar cases, including that EU citizens may be ‘confused’ if provisional documents are disclosed.  

To get an overview of the institutions’ approach to requests for legislative documents, the Ombudsman asked for statistics concerning initial access requests and for a list of follow-up requests (confirmatory applications) for three recently adopted legislative acts. 

Timely public access to legislative documents is essential for EU citizens to participate in EU law making. Legislative transparency is enshrined in the EU treaties and this is reflected in the EU’s regulation on public access to documents.

According to EU case law, EU institutions can only refuse to disclose legislative documents in exceptional circumstances and their reasoning for doing so must be based on specific and tangible facts.