Commission's failure to properly justify the non-disclosure of UK documents an act of serious maladministration, rules EU watchdog

Out-Law News | 10 Jan 2013 | 4:56 pm | 3 min. read

The European Commission's failure to provide sufficient justification for not disclosing documents relating to the UK's 'opt-out' from the EU's Charter of Fundamental Rights was an act of serious maladministration, an EU watchdog has said.

The European Ombudsman, Nikiforos Diamandouros, said that the Commission had not provided "valid reasons for its refusal to give public access" to the documents, which had been sought by citizens rights lobby group the European Citizen Action Service (ECAS). The Ombudsman is responsible for investigating complaints and maladministration by EU bodies and institutions.

"By categorising parts of the documents as irrelevant, the Commission wrongly disregarded the complainant’s request to obtain access to the full documents and thereby evaded the obligation to give valid reasons for refusing full access," the Ombudsman said in his ruling. "In view of the importance of the documents concerned for the rights of EU citizens, and the fact that the Commission failed to engage constructively with the detailed analysis put forward by the Ombudsman, this constitutes a serious instance of maladministration."

The EU Charter of Fundamental Rights sets out the guardian principles and rights behind EU law. The UK obtained a right to 'opt-out' from the terms of the Charter being used to challenge UK national law during negotiations on the Lisbon Treaty, which came into force in 2009. The Lisbon Treaty made changes to the underlying frameworks on which the EU is founded.

The issue of whether and to what extent the UK could exercise an opt-out right has been heavily debated. ECAS argued that EU citizens "have the right to know the reasons why they will not have the same fundamental rights in the UK as they have in the other Member States". It claimed that the Commission had not provided sufficient justification for its non-disclosure of the documents it sought access to, and the European Ombudsman agreed.

Under EU law, EU citizens have a "right of access to documents" held by the European Commission, European Parliament and Council of Ministers, subject to some exceptions, such as where disclosure would undermine privacy rights or public security, for example.

The European Commission initially agreed to allow only partial access to two of the five documents ECAS sought full disclosure of. It said that the remaining information should not be disclosed on the basis that it either constituted legal advice or that it was protected information which related to "the decision-making process". 

Under the EU right of access laws, the Commission can legitimately withhold papers where disclosure of them would undermine the protection of legal advice, or if it would "seriously undermine" its decision-making process, unless there is an overriding public interest in the disclosure of that information.

The Ombudsman said that the Commission had argued that full disclosure of the documents would "seriously undermine both its capacity to receive full and independent legal advice, as well as its ability successfully to participate in negotiations in future intergovernmental conferences". In addition, the documents would not provide "a commensurate gain in the understanding of circumstances and reasons underpinning the decision of the UK government to opt-out of the Charter of Fundamental Rights", the Commission had claimed. It deemed there to be no overriding public interest in disclosure.

However, the Ombudsman urged the Commission to provide full access to the documents or provide "valid reasons" for not doing so after forming the view that some of the arguments the Commission had made were arguments in favour of public access and not against it.

The Commission subsequently agreed to disclose a small amount of information contained in two of the five documents. It said that it had assessed that the remaining information was either irrelevant to ECAS' request, or that it was exempt from disclosure under the 'legal advice' or 'decision-making' rules.

In its final ruling the Ombudsman said that the Commission was wrong to "unilaterally" determine what parts of the documents were 'relevant' to ECAS' request. The Commission should have assessed all of the information and disclosed all of the information which was not justifiably covered by one of the exceptions, the Ombudsman added. It criticised the Commission for repeating the justifications it had made for non-disclosure and deemed then not to be valid.

"Public access to documents concerning how EU law is adopted is key to winning the trust of European citizens," Diamandouros said in a statement. "I therefore strongly regret the Commission's refusal to give the public appropriate access to documents concerning how one of the most important EU laws, namely, the Charter of Fundamental Rights, was adopted".

"Despite the Ombudsman's recommendation that it make the documents in question public, the Commission only gave partial access. As access to documents is itself one of the fundamental rights guaranteed by the Charter, and as the Commission failed substantively to engage with certain of his arguments, the Ombudsman concluded that such refusal constituted 'a most serious instance of maladministration'," he added.