Director-General of the Legal Service Council of the European Union

 

 

Dear Ms Y,

The Ombudsman has received a complaint from Mr X, on behalf of CONTEXTE, against the Council of the EU. She has asked me to deal with the case on her behalf.

The complainant asked for public access to Council Legal Service documents pertaining to the draft ‘Digital Services Act’ and the draft ‘Digital Markets Act’^[1].

In its confirmatory decision of 20 December 2021, the Council identified 16 documents as falling within the scope of the complainant’s request. It refused access to all documents in their entirety.

The Council noted that the two legislative proposals in question are of a very technical regulatory nature and of particular international sensitivity. The requested documents concern contributions from the Council Legal Service to assist in the preparatory work necessary for the deliberations in the relevant Working Parties and, subsequently, in Coreper.

In view of the above, the Council concluded that disclosure of the identified documents was likely to seriously undermine its decision-making process and could reduce the ability of its Legal Service to provide “honest, frank and full opinions”. Moreover, the Council said that disclosure could affect its Legal Service’s ability to defend effectively decisions adopted by the Council before the EU courts. The Council also considered that there was no overriding public interest in disclosure.

We have decided to open an inquiry into this complaint against the Council’s decision to refuse access to the requested documents under Regulation 1049/2001.

Regulation 1049/2001 states that applications for access should be handled promptly. It is in line with this principle that the Ombudsman also seeks to deal with cases such as this as quickly as possible.

As a first step, we consider it necessary to review the documents at issue in the complainant’s request. We would therefore be grateful if the Council could provide us with copies of the 16 documents, preferably in electronic format (through encrypted e-mail^[2]).

The documents subjected to the public access request will be treated confidentially, along with any other material the Council chooses to share with us that it marks confidential. Documents of this kind will be handled and stored in line with this confidential status and will be deleted from the European Ombudsman’s files shortly after the inquiry has ended.

The Council’s position has been set out in its confirmatory reply of 20 December 2021. However, should the Council wish to provide additional views, to be taken into account by the European Ombudsman during this inquiry, we would be grateful if they could be provided to us.

We would be grateful if the Council could let us know, as soon as possible, by when it can respond to this request. The inquiries officer responsible for this inquiry is Ms Silvia Fuller.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 20/04/2022

 

[1] Specifically, the complainant asked for : “documents liés au service juridique du Conseil, en particulier :

- les avis émis dans le cadre de la lecture et de l’examen du Digital Services Act en groupe de travail Compétitivité – Marché intérieur ;

- les avis émis dans le cadre de la lecture et de l’examen du Digital Markets Act en groupe de travail Compétitivité – Concurrence ;

- les échanges écrits entre le service juridique du Conseil et les membres de ces deux groupes de travail à propos du Digital Services Act et du Digital Markets Act ;

- les échanges écrits entre le service juridique du Conseil et les représentations permanentes sur ces deux dossiers ;

- les échanges écrits entre le service juridique du Conseil et la Commission européenne sur ces deux dossiers.”

[2] Encrypted emails can be sent to our dedicated mailbox.