Case title: The Council of the EU’s refusal to give public access to documents related to negotiations on the draft ‘Digital Markets Act’ and the ‘Digital Services Act’

Date: Friday, 30 September 2022

Physical location and remote dial in

Present

Council of the EU

Three members of the Council Legal Service (CLS)

European Ombudsman (Directorate of Inquiries)

Ms KING Jennifer, Legal Expert

Ms EHNERT Tanja, Inquiries Coordinator

Ms FULLER Silvia, Inquiries Officer

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to clarify the reasons put forward in the Council’s confirmatory decision of 20 December 2021 to refuse public access to the requested documents, based on Articles 4(2), second indent, and 4(3), first subparagraph, of Regulation 1049/2001, specifically:

- why the Council considers that the specific content of the documents is so sensitive that its release at the time of the confirmatory decision, was likely to diminish the chances that discussions within the preparatory bodies and within Coreper would take place in a calm and effective manner, thus severely affecting the decision-making process and the future negotiating position of the Council; and

- why and how disclosure would undermine the possibility of the Legal Service to provide frank and full opinions, thereby severely affecting the Legal Service’s ability to defend effectively the decisions adopted by the Council before the EU courts.

The questions had been sent to the Council in advance of the meeting, together with the meeting request, on 15 July 2022.

In addition, the Ombudsman inquiry team sought to obtain further information on the background and the nature of the requested documents (emails) and at what stage in the legislative process they had been exchanged.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves and thanked the members of the Council Legal Service (CLS) for meeting with them. The inquiry team set out the purpose of the meeting and outlined the applicable legal framework. They explained that the Ombudsman would not disclose any information identified by the Council as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Council’s prior consent.^[1]

Information exchanged  

General explanations concerning the requested documents

The members of the CLS clarified that the documents in question are email exchanges, including attachments, between members of the CLS, individual delegations, the Presidency, and the responsible Commission services, relating to the draft ‘Digital Services Act’ and the draft ‘Digital Markets Act’.

While the CLS did not provide a formal legal opinion in either of the two legislative procedures in question, it provided legal advice to individual delegations, the Commission services or the Council Presidency upon request - either orally, during meetings of the relevant Working Party and by informal [video/tele]conferences (COVID-19 crisis), or in written form, for example by suggesting changes to the draft legal texts.

The members of the CLS clarified that all these email exchanges concerned issues that were discussed during Working Party meetings and that all Member States were thus aware of them. For example, when an individual delegation asked questions to the CLS, these questions and the CLS replies were then orally discussed in a subsequent Working Party meeting or the other way round. In this context, the CLS members clarified that the CLS advises the Council and supports the Presidency of the Council  

In refusing access to the email exchanges and their attachments, the Council invoked the exceptions concerning protection of legal advice and Court proceedings and an ongoing decision-making process for each document. ^[2] The CLS members referred to the reasons for invoking these exceptions, as they are set out in the Council’s confirmatory decision of 20 December 2021.

In particular, the CLS members stated that disclosure of the documents, which are of technical and preparatory nature, at the time of the confirmatory decision could have weakened the Council’s negotiating position during the upcoming trilogues. They noted that many articles in the draft Digital Markets Act and draft Digital Services Act were very contentious and that disclosure, at that point in the legislative process and without context, would have not only weakened the Council’s negotiating position but it would have also made the negotiations with the European Parliament very difficult. In fact, during the trilogues, discussions on certain issues were halted until the very end.

Conclusion of the inspection of documents / meeting

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

 

Brussels, 3 October 2022

Jennifer King                                                                                                Silvia Fuller

Legal Expert                                                                                                  Inquiries Officer

 

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

[2] Article 4(2) second indent and Article 4(3) first subparagraph of Regulation 1049/2001.