Made in accordance with Article 4(1) of the Statute of the European Ombudsman^[1]

Background to the complaint

1. Following the United Kingdom’s withdrawal from the European Union in January 2020, the EU and UK started negotiating the details of a trade agreement. These negotiations resulted in the ‘EU-UK Trade and Cooperation Agreement’, which entered into force in May 2021.^[2]

2. In a meeting held in November 2020, the Legal Service of Council of the EU expressed its opinion as to whether the Agreement could be concluded as an ‘EU-only agreement’^[3]. The Legal Service then set out its views in writing by issuing, in January 2021, a legal opinion “on the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part” (‘the opinion’) ^[4].

3. In February 2021, the complainant, from the University of Helsinki, sought public access to the opinion.^[5]

4. The Council disclosed only a very limited part of the opinion, saying that full disclosure would undermine the protection of the public interest as regards international relations, legal advice and the decision-making process^[6].

5. Dissatisfied with the Council’s decision to give only partial access, the complainant turned to the Ombudsman in April 2021.

The Ombudsman's proposal for a solution

6. The Ombudsman opened an inquiry into the Council’s refusal to grant full public access to the opinion. In the course of the inquiry, the Ombudsman’s inquiry team inspected the non-redacted version of the opinion.

7. Following the inspection of the document, the Ombudsman took the view that the information contained in the opinion could not be regarded as sensitive. She considered that the opinion does not in any way undermine the public position that the EU took as regards the ratification of the agreement, nor does it reveal information on the EU’s negotiating position or strategy. The type of trade agreements that can be concluded is part of EU law and therefore known by third parties. It was thus unclear to the Ombudsman how disclosure could affect the trade negotiations with the UK when they were ongoing, as well as future EU negotiations. To the contrary, the Ombudsman considered that disclosure could foster confidence in the legality of trade agreements.

8. The Ombudsman further referred to the General Court’s judgment in ’Pech v Council’^[7], taking the view that the legal opinion could not be considered sensitive as the content itself was not sensitive. Therefore, the opinion’s disclosure could not undermine the protection of legal advice.

9. Moreover, irrespective of the different views about whether disclosure of the legal opinion at the time the ‘confirmatory decision’ was adopted could seriously undermine the Council’s decision-making process, the Agreement had now entered into force. The Ombudsman therefore urged the Council to take this development into account when reviewing its decision in light of potential further disclosure.

10. In light of the above, the Ombudsman proposed as a solution^[8] that the Council grant the widest possible access to the opinion of its Legal Service of 25 January 2021.

11. The Council did not accept the Ombudsman’s proposal for a solution.

12. In its reply, the Council argued that, while the internal procedures for the adoption of the decision are now terminated, the subject matter of the legal opinion remains sensitive in the context of the opening, negotiation and conclusion of other agreements with the UK or with other third countries, since it reveals a strategy that could also be applicable for other agreements. The Council said that the sensitivity of the document is not automatically removed simply because the internal procedures in the Council have been concluded in relation to one specific agreement when that legal advice is relevant for other agreements for which the exception concerning international relations equally applies.

13. The Council thus considered that the exceptions related to the protection of the public interest as regards international relations and the protection of legal advice still justified the non-disclosure of the opinion.

14. The complainant found it regrettable that the Council chose not to follow the Ombudsman’s proposal for a solution and considered this a worrying practice for EU citizens. She also expressed her disappointment about the Council’s decision to deny her full access to the Ombudsman’s solution proposal and the Council’s reply thereto^[9].

The Ombudsman's assessment after the proposal for a solution

15. The Council did not seize the opportunity to review its position on the complainant’s access request, in light of the detailed arguments provided by the Ombudsman in her solution proposal. Rather, the Council sent a very brief reply which did not address the Ombudsman’s arguments.

16. In essence, the Council set out that the content of the opinion remains sensitive in light of potential future negotiations of other international agreements. However, the Ombudsman had already put forward arguments as to why she considers that the information contained in the opinion cannot be considered sensitive, and that the Council had not sufficiently set out how disclosure could harm its international relations.

17. Since the Council did not rebut the Ombudsman’s arguments, the Ombudsman maintains her position. She emphasizes once more that the type of trade agreements that can be concluded is part of EU law and therefore known by third parties. Most of the information contained in the opinion is already publicly available^[10]. The Ombudsman therefore takes the view that disclosing the opinion is unlikely to undermine the EU’s negotiation position or reveal its strategy, either now or in future trade negotiations.

18. The Council further argued that the document remained sensitive even if the Council internal procedures had been concluded in relation to this specific agreement. However, the Ombudsman had already referred to a recent judgment of the General Court, in which the Court had noted that the question whether a legal opinion is particularly sensitive depends on whether the content of the opinion itself is particularly sensitive.^[11] In this regard, the Ombudsman noted that the information contained in the opinion at issue cannot be regarded as sensitive.

19. The Council did not address these arguments. While the Ombudsman is aware that the Council appealed the judgment in ‘Pech v Council’, she notes that it is bound by the findings of the General Court while the appeal procedure is ongoing. The Ombudsman thus finds it regrettable that the Council for now has chosen to disregard the judgment in assessing the potential disclosure of this opinion.  

20. In light of the above, the Ombudsman finds that the Council’s refusal to grant the widest possible access to the opinion constituted maladministration. She therefore recommends that the Council should review the opinion of its Legal Service, with a view to granting the widest possible access.

Recommendation

On the basis of the inquiry into this complaint, the Ombudsman makes the following recommendation to the Council:

The Council should grant the widest possible access to the opinion of its Legal Service.

The Council and the complainant will be informed of this recommendation. In accordance with Article 4(2) of the Statute of the European Ombudsman, the Council shall send a detailed opinion by 24 May 2022.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 24/02/2022

 

[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] Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:22021A0430(01)&from=EN.

[3] For more information, see: https://trade.ec.europa.eu/doclib/docs/2012/june/tradoc_149616.pdf.

[4] Council document with reference number 5591/21.

[5] In line with Regulation 1049/20012001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049.

[6] In accordance with Article 4(1)(a), third indent, Article 4(2), second indent, and Article 4(3) of Regulation 1049/2001.

[7] Judgment of the General Court (Second Chamber) of 21 April 2021, Pech v Council, T-252/19: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-252/19. The judgment is currently under appeal.

[8] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's proposal for a solution available at: https://www.ombudsman.europa.eu/en/solution/en/149544.

[9] In its reply to the Ombudsman’s solution proposal, the Council identified parts of the solution proposal that it considered to contain confidential information. It further signalled that elements in its reply to the solution proposal were confidential. As such, the Ombudsman is not in a position to disclose these elements in this recommendation.

[10] The Council has published most parts itself. See, for example, the recitals in Council Decision 2020/2252 on the signing, on behalf of the Union, and on provisional application of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, and of the Agreement between the European Union and the United Kingdom of Great Britain and Northern Ireland concerning security procedures for exchanging and protecting classified information, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32020D2252&from=EN.

[11] Pech v Council, paragraph 85 (see footnote 7).