I. Introduction

Opening remarks

Good morning, ladies and gentlemen!

Thank you very much for inviting me to address you during this Sixth International Conference of Information Commissioners. I would, in particular, like to thank the Norwegian parliamentary Ombudsman Arne Fliflet, with whom I co-operate closely in the European Network of Ombudsmen.

I had the honour of addressing this forum in Manchester in 2006. I take it that - since you have invited me again - the EU level experience is something you find relevant and, dare I say, even inspiring for your own work.

Or perhaps you are yet to be convinced about the European Union's open government credentials. The EU is, after all, widely perceived as remote and secretive. It has rarely been considered as a leading light in terms of transparency. I hope that, over the next twenty five minutes, I can convince you that the actual situation is a lot better than this reputation suggests.

What can certainly be said about the EU's experience with open government is that, compared with a country like Sweden or indeed our host country, Norway, it is very recent.

This move in the direction of greater openness reflects the idea, as already recognised by the Council of Europe, among others, that transparency is an essential aspect of good democratic governance.

"Open government"

Let me start with a few words on the principle of open government. I shall focus on two of its main purposes which lead to the empowerment of citizens.

Firstly, transparency makes it possible for citizens to scrutinise the activities of public authorities, evaluate their performance and call them to account. As such, openness and public access to information form an essential part of the institutional checks and balances that mediate the exercise of public power and promote accountability.

Secondly, open government facilitates citizens' participation in public activities by ensuring access to information and the means to take part in the process of governance to which they are subject[i].

The outcome should be that, in a democratic system, the administration enjoys greater legitimacy and is more effective and more accountable to the citizen.

The mere mention of terms like accountability, effectiveness and legitimacy, should immediately signal that open government has particular relevance for the European Union, which has, many times in the past, been accused of failing in these areas.

The EU Experience  - what the Union is/is not

It is important to tread carefully, however, when talking about "government" and the EU. The European Union is, after all, not a State. It is perhaps best described as a multi-level system of governance.

One reality of this system is that the EU institutions exercise significant public authority: that is to say, they exercise legislative, judicial and administrative powers. The question that, therefore, arises is whether and how the exercise of public authority at the level of the Union can be made legitimate and kept accountable. The drive for openness clearly forms part of the answer. So too, as we shall see, does the institution of the Ombudsman.

But there is a second question stemming from the fact that administrations in the Member States, at national, regional and local level, have the primary role in implementing many aspects of EU law and policy. I would not do justice to the title of my intervention were I not also to address the question of citizens' access to information relating to Member States' EU activities. I will come back to it later in my speech.

II. Openness with regard to EU institutions

The Maastricht Treaty: transparency and the Ombudsman

The drive for greater openness is, as I mentioned, a relatively new development in the EU. Commitment to openness came only with the Treaty of Maastricht in the early 1990s, as part of the EU's response to the so-called democratic deficit.

The Maastricht Treaty also established the European Ombudsman, as part of the citizenship of the Union.

Promoting transparency became a focal point for the Ombudsman from the very start. Two own-initiative inquiries in 1996 and 1999 resulted in almost all the smaller EU institutions and bodies (including, the Court of Auditors and the European Central Bank) adopting rules on public access to documents.

The Ombudsman's first ever Special Report to the European Parliament, issued in November 2000, addressed the extent to which data protection concerns could be used to prevent disclosure of information. In that report, the Ombudsman said that there was no fundamental right to supply information to an administrative authority in secret. In 2007, the Court of First Instance found, in its judgment on the Bavarian Lager case, that the European Commission had indeed infringed the relevant transparency rules. The Commission has appealed to the Court of Justice, so this important point of principle should be finally resolved next year. The Advocate General responsible for this case will deliver her opinion on 15 October.

The Amsterdam Treaty: the legal framework

The legal framework for transparency was strengthened with the entry into force of the Treaty of Amsterdam. Firstly, Article 1 (2) of the Treaty on European Union was modified to read that decisions in the Union are taken "as openly as possible and as closely as possible to the citizen".

Secondly, Article 255 EC was introduced. It stipulates that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has the right of access to European Parliament, Council and Commission documents.

This right was given effect in Regulation 1049/2001. It is important to mention that the term document is defined broadly in the Regulation. It includes any content, regardless of its medium, on a matter relating to the policies, activities and decisions falling within the EU institutions' sphere of responsibility.

The adoption of this Regulation in 2001 was a milestone in the development of transparency at EU level. Only a few years before, the EU institutions operated on the basis that confidentiality was the rule and that giving access to information and documents was a discretionary exception to that rule. Regulation 1049/2001 enshrines the opposite principle: openness is the basic rule and secrecy is the exception.

I am convinced that, as a result of the access to documents Regulation, the public's ability to monitor the exercise of power by the Union's institutions has increased. The Regulation empowers citizens in relation to the flow of information: they can take the initiative to obtain information, in its original context, that has not yet been put into the public domain. Moreover, the quality of the institutions' systems for managing and retrieving information and documents has improved, thereby enabling them to operate more efficiently and effectively, as well as more transparently.

Remedies: The Ombudsman and the Courts

Every citizen or resident of the Union enjoys this fundamental right of access - on request and without giving any reason - to documents held by a Union institution. That does not mean, of course, that all documents must be public. What it does mean is that the burden of proof is on the public authority that refuses a request for public access, thus reversing the traditional presumption of confidentiality that existed in many countries.

Applicants who are denied access to a document may either go to the court, or to the European Ombudsman.

The right to a judicial remedy is the fundamental guarantee of the rule of law. The obvious advantage of going to court is that the court's decision is legally binding.

The Ombudsman's role is complementary to that of the courts: it provides an alternative remedy that applicants may use, if they consider it appropriate in their case.

One main advantage of the non-judicial remedy that is the Ombudsman is the fact that he inquiries into whether or not there has been maladministration. European institutions and bodies must respect the rule of law, so, if they act unlawfully, that is maladministration. However, the converse is not necessarily true, because the principles of good administration require more of the institutions than merely avoiding unlawful behaviour.

Let me illustrate what I am saying with an example.

It concerns access to information as opposed to documents. Regulation 1049/2001 is about public access to existing documents. It does not require the institutions to create new documents containing information that someone would like to have. A few years ago, however, the Ombudsman drafted a Code of Good Administrative Behaviour, which contains, among other things, an obligation to provide members of the public with information on request.

Such an obligation cannot, of course, be absolute. As a principle of good administration, it amounts, essentially, to the presumption that information should be provided unless there is a good reason not do so.

This example illustrates well how the Ombudsman's focus on maladministration rather than on questions of strict legality constitutes an advantage over the judicial remedy provided by the courts.

Remedies: The Ombudsman and Information Commissioners

The focus on maladministration, and the fact that the Ombudsman cannot issue sanctions or prosecute individuals, also serve to distinguish this institution from other bodies responsible for upholding the rights of individuals to freedom of information or public access rights, most notably information commissioners.

I am conscious of the fact that the institutional arrangements at the EU level differ from those of many countries in Europe. In Germany, Slovenia and the United Kingdom, for example, information commissioners, rather than ombudsmen, deal with transparency questions. To take another example, in Ireland there is an Ombudsman and an Information Commissioner - who happen to be the same person (and indeed the Moderator of our next session!)

These different institutional arrangements reflect different legal traditions and administrative cultures. It will be interesting to learn today, how they work in practice.

Let me just give you one example from my own experience. The case concerns the extent to which the public can access information on allowances paid to Members of the European Parliament. I also refer to this case in the knowledge that we will hear more on the issue later this morning, during the session on MPs' expenses.

Firstly, the background to the case. In 2005, the European Parliament rejected a request from a Maltese journalist for information on the allowances paid to Maltese MEPs. Parliament dealt with this request under Regulation 1049/2001 and justified its refusal on the grounds of data protection.

The journalist lodged a complaint with the Ombudsman, arguing that taxpayers have a right to know how MEPs spend public money. I consulted the European Data Protection Supervisor, who advised that, although MEPs should not be denied protection of their privacy, the basic consideration had to be that the public has a right to be informed about MEPs' behaviour and especially about the expenditure of public funds entrusted to them.

In response to my call for the requested information to be disclosed, Parliament announced that it would publish general information on MEPs' allowances on its website and alluded to the possibility of re-assessing the situation this year. While I welcomed this move, I also criticised Parliament for relying on a legal interpretation of the relationship between the EU's rules on public access to documents and on data protection, which I found to be inconsistent with the case-law of the Court of First Instance.

The reason I mention this case is because, as far as I am aware, few, if any, parliamentary ombudsmen would be called upon to examine a case involving access to information on parliamentarians. While an information commissioner could of course deal with such a case - as the situation in the UK recently demonstrated - the fact that information commissioners are not appointed or elected by those same parliamentarians makes for a very different scenario. I would be interested in hearing your views on this issue later today.

III. Recent efforts aimed at promoting transparency of EU activities

The European Transparency Initiative

The EU's efforts in the area of transparency are not restricted to the application of Regulation 1049/2001.

After the "no" votes on the Constitution for Europe in France and the Netherlands in 2005, the European Commission launched the European Transparency Initiative. The initiative aims to improve transparency in lobbying and consultation procedures, provide more information on the use of EU funds, and develop ethical rules and standards for public officials. It also foresees a revision of the rules on public access to documents.

Let me focus on consultation, as it is particularly relevant to the participation function of open government, which I referred to earlier.

There is a growing trend for EU legislation to provide quite elaborate arrangements for the consultation of stakeholders before decisions are made. This is important. Consultation processes give stakeholders an opportunity to contribute towards the content of policy and legislation. This should, as I have already mentioned, lead to a better outcome in terms of substance and legitimacy.

Such processes should, of course, be fair. It is for this reason that transparency in the area of lobbying is also critical. An integral part of the European Transparency Initiative is a registration system for lobbyists. The result of this initiative is that lobbying at the EU level is now much more transparent than in many of the Member States.

The number of complaints to the European Ombudsman on the consultation of stakeholders and the public in the Union's policy-making process is small at present. However, I expect it to become a growth area in the future, especially if the Lisbon Treaty enters into force. The Treaty contains a general commitment to public debate, open dialogue and broad consultation.

Reform of Regulation 1049/2001

Another relevant aspect of the European Transparency Initiative is the revision of the rules on access to documents. The aim of the revision is to improve the Regulation, to adapt it to modern technology, e.g., retrieval of information from databases, and to learn from the possible shortcomings of the current rules.

The European Commission's proposal to revise the Regulation contains a number of welcome changes. At the same time, it has been widely criticised by many, including myself, for moving in the wrong direction and for effectively restricting rather than expanding access to documents.

One argument put forward by the Commission to justify its proposal is that the citizens, for whom the Regulation was devised, rarely make use of it. To me this betrays a fundamental misunderstanding of the purpose of transparency, which should lead to a change in culture within the institutions, and to a more open and accountable way of working. Any attempt to reform the Regulation should build on the momentum towards greater openness and not reverse it.

On 11 March, the European Parliament adopted amendments to the Commission's proposal that, I am happy to report, seek to expand access. I very much welcome Parliament's position.

I will continue to follow this debate closely to ensure the best possible outcome for citizens. Any moves to limit access to documents and to reduce the level of transparency that has already been achieved risk generating alienation, disillusionment and scepticism. I am confident that the Swedish EU Presidency will do its best to ensure an outcome that moves us forward rather than backward.

IV. Transparency of Member States' EU-related activities

Member States' role in the application of EU law and policy

At the EU level, as I have just explained, considerable progress has been made in improving the transparency of policy formulation and lobbying that precede legislation. Thanks to Regulation 1049/2001, the administrative processes of applying and enforcing the law after it has been enacted have also become much more transparent.

This is vitally important because Europe will not get closer to its citizens just by adopting good policies and enacting good laws. Citizens are mainly interested in the results of those laws and policies. If laws and policies are not applied and enforced, then they are not likely to produce worthwhile results. 

The administrative application of EU law and policy is not just a matter for the EU institutions. On the contrary, as I mentioned earlier when I spoke about EU governance, it is primarily the responsibility of the Member States. Any serious discussion on open government with regard to the EU, therefore, requires us to address the question of citizens' access to information on EU matters at the Member State level. If not, we risk doing only half the work of ensuring open government in the Union.

Citizens who want to find out how EU laws are applied and enforced across the Union need to negotiate their way round at least 28 sets of rules: not just Regulation 1049/2001 but also the 27 national legal frameworks. In some Member States, there is also transparency legislation at the regional level, which adds to the complexity.

There is no doubt that the lack of minimum standards for access to EU-related information in the Member States could be a problem for citizens who want to scrutinise the effectiveness of EU laws and policies.

Promoting co-operation and mutual learning

The variety of national laws in the EU also provides a rich basis for mutual learning, provided that processes exist for identifying and sharing information about best practice. However, EU institutions and Member States lack a forum in which to share information and best practice on public access to EU-related documents and information.

As many of you know, the European Ombudsman co-operates with his national and regional ombudsman colleagues through the European Network of Ombudsmen. In 2008, my national colleagues in the Network helped me carry out a comparative study on the law and practice in the Member States on public access to information in databases. This issue is of great importance as far as the right of public access is concerned, given the vast amount of information stored in databases.

Last year, the European Parliament updated my Statute as European Ombudsman so as to recognise that I work not only with national ombudsmen, but also with other bodies of the Member States in charge of promoting and protecting fundamental rights.

If it were deemed useful, I would be ready to do more to facilitate the voluntary exchange of information on best practice in relation to public access to EU-related documents and information and to co-operate with national Information Commissioners and similar bodies for that purpose. I believe it could prove useful not only in informing the EU legislative process on best practice in the Member States, but also in helping spread best practice among the Member States.

V. Conclusion

I began my speech by underlining that transparency is key to empowering citizens.

I am happy to report that European citizens are, in their search for greater transparency, making good use of their right to complain to the European Ombudsman. Since the Office was established in 1995, the allegation that we have dealt with most frequently in our investigations is lack of transparency. In 2008, over one-third of all our inquiries examined an allegation of lack of transparency.

I will continue, as European Ombudsman, to encourage greater transparency and less secrecy in the functioning of the EU institutions.

And as I mentioned, I would be ready to do more to facilitate the voluntary exchange of information on best practice in relation to public access to EU-related documents and information throughout the Union.

These efforts are all indispensable in ensuring real open government in the EU.

Thank you for your attention. I very much look forward now to hearing from Melanie Pustay about "President Obama's Open Government".

 

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[i] See P. Craig, "Access" in EU Administrative Law, OUP 2006; p.320.