Who can guard the guardian?

Transparency is an express normative alternative made within the Lisbon Treaty and the Constitution of Basic Rights. They place an obligation on the EU Establishments to ‘conduct their work as brazenly as doable’, take ‘selections as brazenly as doable’ and ‘guarantee publication of the paperwork referring to the legislative procedures’ with a view of guaranteeing that each EU citizen has the appropriate to take part within the democratic lifetime of the Union. Public entry guidelines (Regulation No 1049/2001) exist to operationalize these ideas.

I’ve been following the event of those guidelines since their creation in 2001 in varied capacities, together with because the consultant of the Finnish authorities within the negotiations on their doable reform (following two Fee proposals in 2008 and 2011) and most of the lead courtroom instances. After returning to academia in 2015, I grew to become an lively consumer of the rights granted by these guidelines. I not solely file requests for paperwork which are wanted for my analysis but in addition – after the just about inevitable denial of entry – enchantment unfavorable selections to each the EU Courts (right here and right here) and the European Ombudsman. For an observer with this sort of practical-historical lens, Ursula von der Leyen’s interval as Fee President has supplied a variety of feelings starting from astonishment to frustration, fear and anger.

Her second Fee appears to proceed the place the primary one left off. In its first assembly on 4 December 2024, the brand new Fee revised its Guidelines of Process. They embody an Annex on ‘Detailed guidelines for the applying of Regulation (EC) No1049/2001’. On this Annex, the Fee unilaterally units quite a few limitations on the applying of the transparency legislation, with the apparent intention of excluding as a lot of its personal paperwork as doable from the scope of public entry guidelines. In doing so, the ‘Guardian of Legality’ appears to overlook that figuring out the extent of transparency and entry to paperwork is legally not on the discretion of particular person establishments, however a normative alternative made within the Treaty of Lisbon and the Constitution.

The Fee’s proposal to revise No 1049/2001 (2008)

The Regulation applies to ‘all paperwork held by an establishment, that’s to say, paperwork drawn up or acquired by it and in its possession, in all areas of exercise of the European Union’ (Article 2(3)). Paperwork are public except there are justified grounds to refuse disclosure. A doc is outlined broadly as ‘any content material no matter its medium’. The Regulation establishes numerous exceptions and a two-stage process for making use of entry with a time restrict of fifteen working days. It additionally requires proactive disclosure of legislative paperwork and an obligation to keep up public registers. 

Seven years after its preliminary adoption, the Fee adopted proposal to recast the Regulation. The proposal touched upon a few of its key selections, together with the vast definition of a doc and the broad scope of the Regulation.

Within the Fee’s view, the definition of a doc was too broad. It argued {that a} ‘doc’ would solely exist ‘if it has been transmitted to its recipients or circulated throughout the establishment or been in any other case registered’. The proposal provoked heated debate, because it clearly elevated institutional discretion. As well as, the Fee wished to exclude two classes of paperwork from the scope of entry guidelines altogether. This included Court docket pleadings submitted by events apart from the establishments and ‘paperwork forming a part of the executive file of an investigation or of proceedings regarding an act of particular person scope shall not be accessible to the general public till the investigation has been closed or the act has turn into definitive’.

The Fee additionally made an try and deliver the EU authorized framework according to the necessities of the Aarhus Conference on entry to environmental info however did so in ways in which have been shortly discovered incomplete particularly as regards the presumption of public curiosity in disclosure constructed into the Aarhus regime. The exception referring to ‘privateness and the integrity of the person’ was to get replaced with a brand new provision establishing that:

Names, titles and features of public workplace holders, civil servants and curiosity representatives in relation with their skilled actions shall be disclosed except, given the actual circumstances, disclosure would adversely have an effect on the individuals involved. Different private knowledge shall be disclosed in accordance with the circumstances concerning lawful processing of such knowledge laid down in EC laws on the safety of people with regard to the processing of non-public knowledge.

A Council majority held sympathy for the Fee’s makes an attempt to restrict transparency. The Parliament, whereas talking for extra transparency, was desperate to tie in points that had comparatively little to do with entry to paperwork, corresponding to interinstitutional points and doc classifications, and easily appeared to lack deal with what mattered.

In a extremely inconvenient coincidence of timing, two months after the Fee tabled its proposal, the Court docket handed down its judgment in Turco. To the horror of the establishments’ authorized companies, the Court docket established that, 

disclosure of paperwork containing the recommendation of an establishment’s authorized service on authorized questions arising when legislative initiatives are being debated will increase the transparency and openness of the legislative course of and strengthens the democratic proper of European residents to scrutinize the knowledge which has fashioned the idea of a legislative act […].

For the Court docket,

‘[o]penness in that respect contributes to strengthening democracy by permitting residents to scrutinize all the knowledge which has fashioned the idea of a legislative act. The likelihood for residents to search out out the concerns underpinning legislative motion is a precondition for the efficient train of their democratic rights.’

As a consequence, entry to authorized opinions was raised within the recast negotiations by the authorized companies as a matter that urgently wanted correcting, resulting in a proposal for a brand new Article 4a(1):

Entry to authorized recommendation referring to points that are the topic of a decision-making course of till the related act turns into definitive or concerning a query of legislation which has not been determined, in final occasion, by the Court docket of Justice, shall be presumed to undermine the safety of authorized recommendation. The applicant could show that there’s an overriding public curiosity justifying the disclosure of the paperwork. (Council Doc. No. 9441/12)

 This was linked to a brand new paragraph 3 in the identical Article, which constituted an all too apparent try and revise Turco: ‘[f]or the aim of this text, the ideas underlying this regulation don’t in themselves represent such an overriding public curiosity’ (Council Doc. No. 16757/12).

Legislative negotiations continued for some time, however with regularly decreasing vigour, and have been finally stalled indefinitely.

Growth by case legislation

As a substitute of a revision of Regulation 1049/2001, the legislation and case legislation continued to develop. The Lisbon Treaty entered into power, with strengthened emphasis on legislative transparency and the precept of participatory democracy. The brand new Treaty additionally broadened the scope of public entry guidelines to all EU establishments, our bodies and businesses.

With the legislative reform on maintain, EU businesses implement Regulation 1049/2001 primarily based on their very own founding laws. The EU’s knowledge safety guidelines have been up to date, changing the thought of defending the ‘privateness and the integrity of the person’ with a strongly consent-based strategy. Since almost each doc is more likely to embody not less than some private knowledge, these guidelines have since then dominated the applying of the exception.

Outdoors the EU context, public entry laws typically primarily focuses on the administration, whereas leaving legislative issues fully outdoors their scope. Within the EU Courts’ case legislation, nonetheless, the main focus of EU public entry guidelines turned on legislative issues. The Turco precept emphasising the significance of legislative transparency has been constantly upheld by the Court docket in later case legislation, additionally as regards Member State positions and trilogue paperwork. In a case regarding the publicity of impression evaluation, the Court docket particularly confirmed that legislative transparency can be relevant to the preparatory legislative work within the European Fee, which is usually decisive for legislative selections and outcomes.

Formally, the Court docket has continued to underline that,

 though the legislative exercise of the EU establishments requires significantly vast entry to paperwork, that doesn’t in any means imply that the opposite actions of these establishments fall outdoors the scope of Regulation No 1049/2001 which, as offered in Article 2(3) thereof, applies to all paperwork held by these establishments, that’s to say, drawn up or acquired by them and of their possession, in all areas of EU exercise.

Nonetheless, in follow, the Court docket has been very understanding of the Fee’s want to exclude a lot of its non-legislative paperwork from the scope of public entry. Whereas additionally rejecting among the Fee’s standpoints (corresponding to on impression evaluation and authorized recommendation), it has, in lots of instances, accepted to switch the responsibility to hold out a concrete, particular person examination of the content material of the requested paperwork by a normal presumption of confidentiality. This permits the Fee to de facto go away a big a part of its key actions outdoors public entry, together with state assist, management of concentrations, merger management proceedings, investigations, infringement proceedings, proceedings beneath Article 81 EC (now Article 101 TFEU), and pilot procedures.

Common presumptions are legally problematic for varied causes. First, they discover no foundation in Regulation No 1049/2001. Second, they’re clearly opposite to the EU’s obligations beneath the Aarhus Conference, which requires all exception grounds for refusal to be ‘interpreted in a restrictive means, bearing in mind the general public curiosity served by disclosure and bearing in mind whether or not the knowledge requested pertains to emissions into the atmosphere’. Third, they’ve a direct and clear impression on the nationwide authorities’ prospects to reveal paperwork primarily based on nationwide laws. In spite of everything, the Fee constantly holds that ‘the truth that the paperwork requested relate to or kind the idea of a nationwide legislative act doesn’t alter their nature at EU degree, nor does it change the truth that they kind a part of an ongoing infringement process’.

 That is significantly problematic as regards infringement proceedings, which frequently have a direct impression on the interpretation or validity of nationwide legislation and on nationwide current or to-be-introduced (adjustments to) nationwide laws. Past the legislative context, public curiosity in disclosure has remained at greatest ‘anaemic’.

Von der Leyen and transparency

Throughout von der Leyen’s first Fee, the Fee’s personal entry to paperwork information remained within the limelight. As a substitute of pursuing a reform of public entry guidelines, it has tabled proposals primarily based on Article 298 TFEU for Regulation 2023/2841, laying down measures for a excessive widespread degree of cybersecurity and a proposal for a regulation on info safety within the establishments, our bodies, places of work and businesses of the Union. Each are about secrecy, not openness.

In the case of the Fee’s personal dealing with of public entry requests, the overall coverage is one among strategic delay, to the extent that an Ombudsman investigation discovered that ‘the systemic and important delays within the Fee’s processing of requests for public entry to paperwork quantity to maladministration. The Fee wants, as a matter of precedence, to appropriate this case’.

Strategic delays have been the usual sample, additionally with my very own requests, which have involved authorized recommendation and different legislative paperwork, environmental info (together with within the context of infringement instances), and paperwork referring to the Restoration and Resilience Facility. In lots of of those areas, my frustration has been shared with civil society and investigative journalists. In conferences with Fee officers, I’ve been instructed bluntly that transparency has no worth in itself however relatively exists to make issues harder. In some ways, the Fee has ceased to use public entry guidelines in any significant means. Entry delayed is usually entry denied.

Von der Leyen’s first Presidency culminated within the oral listening to within the Common Court docket in November 2024 regarding the New York Instances request to entry the textual content messages involving the EU’s Covid-19 vaccine purchases. The viewers current in courtroom shared a collective cringe witnessing Fee legal professionals struggling to supply any first rate response to the very primary questions from the judges on how the search had been performed and the way the Fee had concluded that the messages have been ‘non-essential’.  There was little question within the minds of these current that every thing had occurred beneath clear directions from the President’s Cupboard and that the Fee legal professionals have been working beneath gag orders from the identical place.

These developments run opposite to the normative alternative for transparency that was included within the Treaties due to its essential significance for the EU and its establishments, and their shattered legitimacy.

Up to date inner guidelines of 4 December 2024

To place it bluntly, there is no such thing as a doubt that the brand new Fee guidelines adopted on 4 December 2024 are merely unlawful. They battle with EU Treaties, with Regulation No 1049/2001 and case legislation, and the EU’s obligations beneath the Aarhus Conference.

The Annex, inter alia, limits the appropriate of entry to ‘[c]itizens of the Union and pure or authorized individuals residing or having their registered workplace in a Member State’. This disregards the truth that beneath the Aarhus Regulation, ‘Regulation (EC) No 1049/2001 shall apply to any request by an applicant for entry to environmental info held by Union establishments and our bodies with out discrimination as to citizenship, nationality or domicile and, within the case of a authorized individual, with out discrimination as to the place it has its registered seat or an efficient centre of its actions’.

Article 2 of the Annex introduces numerous limitations to the definition of the doc – limitations of the type that the Fee had proposed already in 2008 however which have by no means discovered their means into laws. Presumably with the textual content message fiasco contemporary in thoughts, these guidelines create new entry obstacles by guidelines about registration and non-registration, and the opportunity of computerized deletion of unregistered emails and textual content messages. In essence, that is the Fee arbitrarily deciding what’s or isn’t a related doc that must be registered and finally made topic to public entry requests.

Article 3 (concerning paperwork immediately accessible to the general public) serves to make sure that there is no such thing as a well timed entry to legislative paperwork. Proactive disclosure is proscribed to legislative proposals as of their adoption, to be accompanied by impression assessments and the Regulatory Scrutiny Board opinion. That is clearly in violation of the case legislation quoted above, which underlines the necessity for proactive and well timed disclosure previous to the adoption of legislative proposals.

Article 4 supplies for a protracted listing of presumptions of non-disclosure, reaching far past something authorised by the Court docket, together with additionally ‘procedures beneath the Digital Markets Act and Digital Companies Act and comparable administrative procedures’. The listing consists of ’paperwork being a part of on-going administrative authorisation proceedings’, even when a number of examples of secondary laws offering for disclosure truly exist. The listing most notably additionally consists of all authorized opinions – a declare that has been repeatedly rejected by the Court docket.

The burden of proof is positioned on the applicant, who’s to show an overriding public curiosity in offering entry. The Fee additional defines that ‘proceedings are on-going till the act closing the proceedings can not be contested earlier than the Union courts or a nationwide courtroom’, which extends the applying of the presumptions kind of indefinitely, as there is no such thing as a time restrict for preliminary reference procedures.

The outgoing Ombudsman has repeatedly referred to the dearth of engagement of the von der Leyen Fee with transparency considerations. The Annex makes this express. If a Fee determination is annulled by the Court docket, the Fee will undertake a brand new confirmatory determination implementing that judgment. Nonetheless, an Ombudsman proposal for an answer or suggestion will likely be merely ‘assessed’, with a view of deciding whether or not the Fee ought to ‘grant additional or full entry to paperwork within the framework of the Fee’s reply to the proposal or suggestion’. This formalises the present Fee follow of ignoring Ombudsman suggestions.

Fiddling whereas Rome burns 

The Treaties and the Aarhus Conference create legally binding obligations on the EU establishments. So, what do you do when the establishment tasked because the ‘Guardian of the Treaties’ and the enforcer of the rule of legislation chooses to place itself, in its precise practices, in open disregard of the Treaties, EU’s worldwide commitments and secondary legislation, and even has the chutzpah to place this disregard on paper and publish it as its inner guidelines?

Fortunately, the Fee’s breach of its obligations will be challenged in a number of methods. Given the secrecy surrounding the approval of Fee guidelines and the brief time restrict for Court docket enchantment, direct motion of annulment is unlikely. Nonetheless, the clear breaches of the EU’s obligations beneath the Aarhus Conference can result in a request for inner evaluation of administrative acts by non-governmental organisation or different members of the general public beneath the Aarhus Regulation, which can additionally result in proceedings earlier than the Court docket of Justice. At the least one such request has been filed by the environmental NGO ClientEarth. Lastly, when the Fee denies entry primarily based on its new guidelines, such selections will be challenged earlier than the Common Court docket, concurrently invoking the illegality of provisions of the Guidelines of Process.

One can’t however marvel the short-sightedness of the Fee. Regardless of flashy initiatives such because the European Democracy Motion Plan and the Defence of Democracy Bundle, the Fee appears to imagine that democracy is distinct from the way it upholds the fundamental ideas of participatory democracy in its personal institutional practices. It appears to recommend that it needs to be allowed to legislate in secret by approving inner guidelines that exist to make sure that residents can’t get well timed entry to take part in decision-making. In doing so, the Fee is rendering an enormous disservice to an already weakened EU. Quis custodiet ipsos custodes?

Päivi Leino-Sandberg is Professor of Transnational European Legislation, College of Helsinki. She specialises in EU constitutional and institutional legislation, engages typically in multidisciplinary work and makes use of empirical strategies. Earlier than returning full time to the academia in 2015, she labored for over 10 years as a authorized adviser for the Finnish authorities collaborating in quite a few EU and worldwide negotiations and Court docket instances. Her current books embody a monograph entitled The Politics of Authorized Experience in EU Policymaking (CUP 2021), and three co-edited collections of essays Legislation, Authorized Experience and EU Policymaking (CUP 2022), (In)seen European Authorities. Important Approaches to Transparency as an Very best and a Observe (Routledge 2023) and Dynamics of Powers within the European Union (Hart Publishing 2024).