Background to the complaint

1. In December 2020, the European Commission proposed the Digital Services Act (DSA)[1] and the Digital Markets Act (DMA)[2]. The two legislative acts[3] aim to upgrade the rules governing digital services in the EU by creating a safer digital space for users where their fundamental rights are protected and by establishing a level playing field to further innovation, competitiveness and growth.

2. In September 2021, the complainant, a media outlet, requested pubic access[4] to the exchanges on the draft DMA and the draft DSA between the Council legal service, its internal working parties and the European Commission.

3. The Council refused access to the documents in their entirety, arguing that their disclosure would undermine the protection of legal advice and future court proceedings[5] as well as the Council’s ongoing decision-making process[6].

4. The complainant asked the Council to review its decision (by making a ‘confirmatory application’). It considered that the Council had not sufficiently explained how disclosure would undermine the protected interests and that there was an overriding public interest in disclosure of the requested documents.

5. The Council maintained its initial decision to refuse access to all documents in their entirety.

6. Dissatisfied with the outcome of the review, the complainant turned to the Ombudsman in April 2022.

The Ombudsman’s proposal for a solution

7. The Ombudsman noted that EU citizens have a Treaty-based[7] right to participate in the democratic life of the Union and that, therefore, EU decisions must be taken as openly and as closely as possible to the citizens[8]. This is particularly important when EU institutions act in their legislative capacity.[9] This principle of legislative transparency is enshrined in the EU Treaties[10] and reflected in the EU legislation on public access to documents, which states that legislative documents must be directly accessible to the public, unless their disclosure would undermine one or several of the interests explicitly protected.[11]

8.  The Ombudsman inspected the 16 documents at issue and noted that they are clearly legislative documents, to which the highest standards of transparency must apply. Therefore, the exceptions invoked by the Council in refusing public access must be applied all the more restrictively.[12]

9. The Council stated that the documents at issue are exchanges within the relevant working parties, which were of a technical and preparatory nature. It argued that their disclosure - at the time of the confirmatory decision - could have seriously undermined its then still ongoing decision-making process by weakening its position in the upcoming trilogue[13] discussions with the European Parliament. Furthermore, the Council considered that disclosure could have exposed the members of the Council and those of its legal service to undue external pressure and would have facilitated targeted attempts by third parties with economic and/or political interests to influence Member States, as it would have revealed the points of (dis-)agreement between them.

10. The Council also argued that, in accordance with EU case-law, it may refuse access to legal opinions, given in the context of a legislative process, that are particularly sensitive. In this context, it stated that the documents at issue contain legal advice given in the context of preliminary discussions with a view to preparing broader discussions. It claimed that disclosure at this stage could affect the way in which legal advice is drafted and would undermine the possibility for the legal service to express its position free from any external influence.

11. The Council further argued that EU case-law recognises the particularly sensitive nature of legal advice given by an institution’s legal service concerning matters which are open to litigation. In this context, the Council considered that it was highly likely that the proposed text would be challenged in court. It took the view that it was thus reasonably foreseeable that disclosure would undermine the legal service’s ability to defend effectively the Council’s decision in these future court proceedings.

12. In her proposal for a solution, the Ombudsman noted that the preliminary nature of discussions in the Council relating to a legislative proposal does not, in itself, justify the application of the exception set out in Article 4(3) of Regulation 1049/2001.[14] Therefore, the preparatory nature of the discussions and the fact that the Council had not yet reached its final position does not, in itself, establish that the Council’s decision-making process would be seriously undermined by disclosure.

13. The Ombudsman acknowledged that the risk of external pressure can constitute a legitimate ground for restricting public access. However, she took the view that the Council did not provide any evidence which suggests there would be a reaction beyond what could be expected from the public by any member of a legislative body who proposes amendments to draft legislation.[15]

14. The Ombudsman considered that lobbying, be it by members of the public or groups with an economic and/or political interest, is an expected and even welcome part of the legislative process. She took the view that disclosure would enhance the quality and legitimacy of the decision-making process by allowing the general public - including lobbyists and journalists - to participate more effectively and on an equal footing in this process.

15. The Ombudsman noted that, in accordance with EU case-law[16], the question whether an opinion is particularly sensitive does not depend on whether the legal issues raised are controversial and subject to disagreement. Rather, it depends on whether the content of the opinion itself is particularly sensitive. The Ombudsman took the view that the information contained in the documents could not be regarded as sensitive throughout.

16. The Ombudsman further noted that, in accordance with EU case-law[17], a general reference to the risk of undermining an institution’s ability to defend itself in hypothetical court proceedings is not sufficient to justify an exception to the highest standard of transparency required for legislative documents.

17. In view of this, the Ombudsman was not convinced by the Council’s explanations that disclosure would undermine the interests protected by the exceptions set out in the EU legislation on public access to documents. She considered that the Council should review its position and made the following proposal for a solution[18]:

The Ombudsman proposes that the Council should review its position, taking into account the above observations, with a view to granting the widest possible public access to the requested documents. Where the Council considers that access cannot be granted, it should explain, in detail and with reference to the individual documents, how disclosure of these documents would undermine one or several of the public or private interests listed in Article 4 of Regulation 1049/2001, if needed in a confidential annex.

18. In reply, the Council accepted the Ombudsman’s proposal for a solution and granted public access to the requested documents, with redactions of personal data only.

19. However, the Council maintained its view that, at the time of the confirmatory decision, the decision-making process was at an early stage and inter-institutional discussions between the Parliament, the Council and the Commission were about to begin. As the inter-institutional discussions have ended and the two legislative texts have been adopted, disclosure of the requested documents will no longer undermine the protection of legal advice and future court proceedings as well as an ongoing decision-making process.

The Ombudsman’s assessment after the proposal for a solution

20. While the Ombudsman welcomes the Council’s positive response to her proposal for a solution and its decision to grant wide public access to the documents in question, she notes that the Council maintains its position that, at the time of the adoption of its confirmatory decision, refusal of access was justified. Only the passage of time, and the fact that the inter-institutional discussions have ended and both legislative texts have been adopted, led the Council to agree to the disclosure of the requested documents.

21. The Ombudsman reiterates her view that the grounds on which the Council based its decision to refuse access to the relevant legislative documents, at the time of the adoption of its confirmatory decision, were not convincing.

22. The Ombudsman recalls that timely access to legislative documents, which include documents produced by the legal services of the institutions relating to a legislative procedure,[19] is crucial for citizens to exercise their Treaty-based right to participate in the democratic life of the Union.

23. Due to the passage of more than one year since the complainant first submitted its request, the complainant cannot use the information that has now been disclosed for the purpose it had intended, namely to inform citizens of the two ongoing legislative processes.

24. The Ombudsman, once again, calls on the Council to make available legislative documents at a time that will allow the public to participate effectively in the ongoing decision-making process.

25. In this context, she notes, that the Court of Justice has recently confirmed that where documents form part of a legislative process, the exceptions set out in Article 4 of Regulation 1049/2001 must be applied all the more strictly.[20] The Court further stated that the mere fact that an opinion of the Council legal service was drawn up at an early stage of the decision-making process at issue is not capable of justifying the application of the exception.[21] Similarly, the mere possibility that interested parties may influence the procedure is not sufficient to prove that disclosure of a requested document would seriously undermine the decision-making process.[22]

26. The Court of Justice furthermore confirmed that in the context of examining whether the requested opinion is particularly sensitive, it is the content of that opinion that must be taken into account.[23] Accordingly, if a legal opinion does not contain sensitive information or does not refer to confidential facts, in addition to the legal assessments, it cannot be considered that the legal assessments, in themselves, must not be disclosed, merely because they concern a controversial legislative initiative.[24]

27. The Court of Justice reiterated that openness enables the EU institutions to have greater legitimacy and to be more effective and accountable to EU citizens. Allowing divergences between various points of view to be openly debated contributes to increasing the citizens’ confidence in the institutions.[25]

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

The Council has accepted the Ombudsman’s solution proposal and granted the widest possible public access to the requested documents.

The Ombudsman, once again, calls on the Council to make legislative documents available at a time that will allow the public to participate effectively in the ongoing decision-making process.

The complainant and the Council will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 26/06/2023

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC

[2] Available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=COM%3A2020%3A825%3AFIN

[3] In November 2021, the Council adopted its general approach for the two legislative acts and reached a political agreement with the European Parliament in spring 2022. Both acts entered into force in November 2022. More information available at: https://www.consilium.europa.eu/en/policies/digital-services-package/timeline-digital-services-package/

[4] Under Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN

[5] Article 4(2) second indent of Regulation 1049/2001.

[6] Article 4(3) first subparagraph of Regulation 1049/2001.

[7] Article 10 of the Treaty on European Union (TEU); available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012M%2FTXT

[8] Article 1 and Article 10(3) TEU.

[9] Recital 6 of Regulation 1049/2001.

[10] Article 15(2) Treaty on the functioning of the European Union; available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016E%2FTXT&qid=1685619902236

[11] Article 12(2) and Recital 6 of Regulation 1049/2001.

[12] See judgment of the Court of 4 September 2018, ClientEarth v Commission, C-57/16, para 100: https://curia.europa.eu/juris/liste.jsf?num=C-57/16&language=en

[13] Trilogue refers to informal meetings between the Parliament, Council and the Commission. These meetings aim to reach an agreement on a set of amendments, on a particular legislative file, that are acceptable to Parliament and Council. The trilogue meetings are not held in public.

[14] See judgments of the General Court of 25 January 2023, De Capitani v Council, T-163/21, para 78: https://curia.europa.eu/juris/document/document.jsf?text=&docid=269684&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=6000 and of 22 March 2011, Access Info Europe v Council, T-233/09 para 69, 76: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-233/09; and of the Court of 17 October 2013, Council v Access Info Europe, para 60: https://curia.europa.eu/juris/liste.jsf?num=C-280/11&language=EN

[15] See judgments of the General Court of 25 January 2023, De Capitani v Council, T-163/21, para 85; and of 22 March 2018, Emilio de Capitani v European Parliament, T-540/15, para 99: https://curia.europa.eu/juris/liste.jsf?num=T-540/15

[16] Judgment of the General Court of 21 April 2021, Pech v Council, T-252/19, para 85: https://curia.europa.eu/juris/liste.jsf?num=T-252/19&language=en

[17] See Judgment of the General Court of 6 April 2017, French Republic v Commission, T-344/15, para 76: and judgement of the General Court of 21 April 2021, Pech v Council, T-252/19, para 89.

[18] The full text of the proposal for solution and the assessment that led to it are available at: https://www.ombudsman.europa.eu/en/solution/en/170465

[19] See judgment of the Court of Justice of 8 June 2023, Council v Pech, C -408/21 P, paras 92 and 93; available at https://curia.europa.eu/juris/liste.jsf;jsessionid=63A8160567DEC5058A69B3FB0B3DDBE3?num=C-408/21&language=en

[20] See judgment of the Court of Justice of 8 June 2023, Council v Pech, C -408/21 P, para 82; available at https://curia.europa.eu/juris/liste.jsf;jsessionid=63A8160567DEC5058A69B3FB0B3DDBE3?num=C-408/21&language=en

[21] Ibid, para 88

[22] Ibid, para 81

[23] Ibid, para 61

[24] Ibid, para 67

[25] Ibid, para 31