European Union ministers postponed implementing a Court judgement on transparency and refused to disclose the alternatives that had been discussed behind closed doors. Six member states voted against the secrecy, and the European Ombudsman was asked to step in.
A court ruling in favour of openness
In October 2013, the European Court of Justice ruled that the public has a right to see the positions Member States hold in the Council's working parties before ministers take a final decision. The effectiveness of the legislative decision-making procedure, the Court held, cannot be used as an argument to blank out the identities behind national positions.
The judgement was welcomed as a victory for openness by Access Info Europe, the Madrid-based organisation that had brought the case to trial. In principle it meant citizens could finally see how one country argued on the protection of asylum seekers, or how another objected to new environmental rules.
The Council postpones and refuses
More than five months later, the Council of the European Union — made up of representatives of national governments — had not only postponed implementing the judgement. It also refused to disclose which alternative measures had been placed on its agenda, as set out in a document that had been formally requested under the EU's access-to-documents rules.
The General Secretariat of the Council argued that releasing a document discussed by EU ambassadors in Brussels after the ruling would be "premature" and would "impede the proper conduct of the negotiations and compromise the conclusion of an agreement on this delicate issue." A confirmatory application — the EU term for an appeal against a refusal — did not change the outcome. The Council majority maintained that options for implementing the judgement should "be allowed to take place free from external pressures and influence."
Six states against secrecy
The Council was not unanimous. Six member states voted against the refusal, arguing that full access to the document should be granted:
- Denmark
- Estonia
- the Netherlands
- Slovenia
- Finland
- Sweden
The stakes became clearer once the civil-liberties group Statewatch published a full version of the requested document. A central passage invited Coreper, the committee of EU ambassadors, to decide whether the Council should either continue to grant access to the identities of individual Member States when releasing documents that record positions in ongoing legislative procedures, or instead cease recording those identities altogether.
The second option — not putting on record who said what — would be highly impractical for deliberations and negotiations that can last for years. On that reading, the Council had little real choice but to adapt to the Court's ruling, short of openly obstructing the EU judges in Luxembourg. How such requests work in practice is set out in the guide on how to use European freedom of information.
Two questions for the Ombudsman
After the final refusal, two complaints were filed with the European Ombudsman:
- a challenge to the Council's refusal of access, given that the heart of the matter was a court judgement in favour of transparency, asking whether the negative response could be justified;
- a request for the Ombudsman's opinion on how long the Council may delay implementing the Court's judgement, and whether the delay could amount to contempt of court.
The Ombudsman cannot overturn decisions taken by EU institutions, but the office's opinions have carried weight in many cases, not least on transparency. The European Ombudsman at the time, Emily O'Reilly, had previously served as national ombudsman and information commissioner in Ireland for ten years. The dispute echoed other long transparency battles, such as the one recounted in Game over — nobody won.
Frequently asked questions
What did the European Court of Justice actually decide?
It ruled that Member States' positions in the Council's preparatory working parties are, in principle, public, and that protecting the effectiveness of decision-making is not on its own a reason to hide which country said what.
Why did the Council delay implementing the ruling?
The Council argued that discussions on how to apply the judgement needed to happen free from external pressure, and that releasing the relevant document early would harm ongoing negotiations.
What can the European Ombudsman do about it?
The Ombudsman investigates complaints of maladministration and can issue findings and recommendations, but has no power to strike down an institution's decision; the influence is persuasive rather than binding.