Background to the complaint

1. The complainant asked the European Parliament to disclose all correspondence, from 2 July 2019 to 9 November 2021, between the chair of Parliament’s delegation for relations with Israel[1] and an interest organisation[2]. The complainant assumed that such correspondence comes within the scope of the EU legislation on public access to documents (Regulation 1049/2001)[3] because the Member of the European Parliament (MEP) who holds the post of chair of the said delegation acts in an official representative capacity on behalf of Parliament.

2. Parliament replied to the complainant that it did not hold any documents coming within the scope of the request.

3. The complainant requested a review of that initial decision (by making a ‘confirmatory application’). The Parliament upheld its initial reply. It said the EU legislation on public access does not apply to documents drawn up or received by a chair of a European Parliament delegation in the context of correspondence with lobbyists, and that its administration was never in possession of the documents the complainant had requested.

4. Dissatisfied with the Parliament’s reply, the complainant turned to the Ombudsman in June 2022.

The inquiry

5. The Ombudsman opened an inquiry into Parliament’s position that it did not hold documents coming within the scope of the complainant’s request.

6. In the course of the inquiry, the Ombudsman’s inquiry team met with the relevant staff of Parliament to obtain further information on its decision. The complainant provided comments on the meeting report.

Arguments presented

7.  The complainant’s view was in essence:

• Correspondence between the chair of a delegation and an interest organisation comes within the scope of the EU legislation on public access to documents because an MEP who holds the post of chair of a delegation acts in an official representative capacity on behalf of Parliament.
• The Parliament did not conduct a thorough search following the request for documents, in that the MEP in question had not been approached even though he is the chair of an official European Parliament delegation.

8. The Parliament’s view was in essence:

• The EU legislation on public access to documents applies to documents the Parliament holds (Parliament documents).
• On the basis of the first subparagraph of Rule 122(2) of Parliament's Rules of Procedure, “the term ‘Parliament documents’ means any content within the meaning of Article 3(a) of Regulation (EC) No 1049/2001[4] which has been drawn up or received by officers of Parliament within the meaning of Title I, Chapter 2 of those Rules (the President, the Vice-Presidents and the Quaestors), by Parliament's governing bodies, committees or inter-parliamentary delegations, or by Parliament's Secretariat”.
• It follows from the second subparagraph of Rule 122(2) of Parliament's Rules of Procedure that ‘in accordance with Article 4 of the Statute for Members of the European Parliament, documents drawn up by individual Members or political groups are Parliament documents for the purposes of access to documents only if they are tabled in accordance with the Rules of Procedure’.[5] Parliament understands this rule in such a way that the relevant documents must have left the individual sphere of the MEP concerned, have entered the administrative sphere of the Parliament and have been recorded by the General Secretariat of the European Parliament in order to be considered ‘Parliament documents’.
• There is a direct link between Rule 122 of the Rules of Procedure and Article 4 of the Statute for Members of the European Parliament, which lays out the rules and general conditions applicable to the exercise of MEPs' mandate. Article 4 of the Statute is, in turn, a specific application of the broader principle of freedom of mandate set out in Article 2 of the Statute, which provides that MEPs shall be free and independent.[6] Moreover, as MEPs act autonomously as regards the exercise of their free mandate, the Parliament has neither control over nor access to documents, which they might have stored in their personal offices.
• Thus, documents drawn up or received by an MEP who is the chair of a delegation cannot automatically be considered to be Parliament documents.
• As to the search for documents, secretariats of delegations archive all correspondence they send and receive in the name of the chair of a delegation and which the chair sends to them for information. There is no written guidance on when statements or correspondence of chairs are officially in the name of the chair and when not. Such guidance would be difficult to establish as the decision whether an MEP acts, in a given situation, in his or her capacity as chair or as individual Member falls under the principle of the freedom of the mandate. When searching for documents in a case like this one, Parliament’s administration usually does two things: they search in the Parliament’s record management application ‘GEDA’, and, second, they ask the concerned secretariat if it holds any relevant documents that have not yet been registered. With respect to the delegation at issue, the practice of the relevant MEPs (and their assistants) is to (1) copy in the concerned secretariat in order to allow the latter to register documents that should be registered and/or (2) ask the concerned secretariat to prepare, and subsequently register, any documents (for example, meeting agendas and invitations).
• With regard to the possibility of asking an MEP with an official EP function, such as chair of a delegation, (or his/her office) to check for any relevant but so-far not registered documents (or asking the concerned secretariat to do so), Parliament’s representatives did not recall having so far considered it necessary to do that. However, they did not exclude it if exceptionally the circumstances of the case would warrant it.

The Ombudsman's assessment

9. There are two issues before the Ombudsman. The first one concerns how the Parliament applied the notion of ‘Parliament documents’. The second one concerns the search for documents undertaken by the Parliament in this case.

10. The Ombudsman takes note that currently, a line must be drawn between what documents are Parliament documents, falling within the scope of the EU legislation on public access to documents, and what documents pertain to the sphere of an individual MEP, falling outside the scope of that legislation. Documents received and drawn up by chairs of delegations, in their parliamentary function as chairs, come within the scope of that legislation.

11. Chairs of delegations may draw up and receive documents that pertain to their sphere as individual MEPs. It is reasonable to assume that the fact that an MEP holds the function of chair of a delegation does not allow one to conclude that all correspondence drawn up or received by that MEP has been drawn up or received by that MEP in the exercise of their function as chair of a delegation. Thus, the Parliament could apply that distinction in this case.

12. However, the Ombudsman also understands that in the case of MEPs exercising a Parliament function, such as chair of a delegation, it may in practice be difficult to draw the line between Parliament documents and documents pertaining to the sphere of the MEP. The Ombudsman therefore believes that the Parliament should establish guidance as to how to draw the line in practice - that would be helpful for MEPs, Parliament staff and the wider public. The guidance should be made public. The fact that it is difficult to establish guidance does not detract from the need to establish it. The Ombudsman will make a suggestion to that effect below.

13. As to the search for documents made by the Parliament in this case, the Ombudsman finds that it was appropriate. However, by Parliament’s own admission, it is difficult to draw the line in practice between Parliament documents and MEP documents. Therefore, and in order to enhance citizens’ trust in Parliament’s handling of public access requests, the Parliament should address the chair of the delegation to make absolutely sure that no documents, coming within the scope of the request for access, have been missed. The Ombudsman will make a suggestion to that effect below.

Conclusion

There was no maladministration by the European Parliament.

Suggestions for improvement

The European Parliament should establish guidance on how in practice to draw the line between Parliament documents, coming within the scope of the EU legislation on public access to documents, and documents pertaining to the sphere of individual MEPs, that do not come within the scope of that legislation. The guidance should be made public.

The European Parliament should address the chair of the delegation to verify that no documents, coming within the scope of the request for access to documents, have been missed.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 01/06/2023

 

[1] The delegation is ‘responsible for deepening the Parliament's contacts with Israel and with the Israeli parliament, the Knesset’, cf. the delegation’s webpage, https://www.europarl.europa.eu/delegations/en/d-il/about/introduction.

Article 223 of the Parliament’s Rules of Procedure on the duties of delegations provides that the ‘chair of a delegation shall regularly report back to the committee responsible for foreign affairs on the activities of the delegation’ and that a chair of delegation ‘must be given an opportunity to be heard by a committee when an item on the agenda touches on the delegation’s area of responsibility’.

[2] The organisation’s entry on the EU’s Transparency Register is: https://ec.europa.eu/transparencyregister/public/consultation/displaylobbyist.do?id=465822925861-62.

The stated mission of the organisation is to ‘bring together leaders who believe in the importance of close relations between Europe and Israel, based on shared democratic values and common interests’, see https://elnetwork.eu/.

[3] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R1049

[4] Article 3(a) of Regulation 1049/2001 provides: "document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility.

[5] Article 4 of the Statute provides: Documents and electronic records which a Member has received, drafted or sent shall not be treated as Parliament documents unless they have been tabled in accordance with the Rules of Procedure, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32005Q0684.

[6] Article 2 of the Statute provides: Members shall be free and independent.