April 19, 2016
In light of the numerous important negotiations the EU engages in with its political and commercial partners, transparency remains an essential topic debated among scholars and also in the public sphere. Graham Smith discusses the role of the European Ombudsman in bringing greater transparency to EU negotiations and explains how a proactive approach to transparency could make the negotiating process more legitimate in the eyes of citizens.
By Graham Smith
Transparency is increasingly recognised not merely as the cornerstone of good administrative practice in a healthy democracy, but as the primary means of securing legitimacy and public confidence in actions taken by major political, commercial and financial institutions. Transparency is not an end in itself, but a means of enabling others to see what is happening inside an otherwise closed environment. It lets the light in and provides for scrutiny and insight into activities which would otherwise be hidden from view or only revealed by the actors in a manner which they themselves controlled. However, legitimate interests of a public or private nature may need to be protected by withholding information from public view either for the short term or the long term. All legal regimes for access to documents make provision for withholding information on specified grounds. What differentiates one regime from another is the breadth and depth of the exemptions from disclosure and whether those exemptions are absolute, covering a class of information, or qualified by a requirement to identify and specify the harm which would arise from disclosure, perhaps by reference to a public interest test.
The European Ombudsman
The Ombudsman investigates instances of possible maladministration in the institutions, bodies, offices and agencies of the European Union. She may do this either in response to complaints made to the office by EU citizens and corporations or on her own initiative. Maladministration through a lack of transparency is a recurring theme in the work of the Ombudsman. Furthermore, the Ombudsman is specifically tasked with investigating complaints of non-compliance with the right of public access to EU documents under Regulation 1049/2001. Too often, however, the role of the Ombudsman in relation to matters of transparency is thought of and referred to only in terms of considering complaints of non-compliance with Regulation 1049/2001. This restrictive view is not supported by the reality. The transparency of lobbying, the functioning of expert groups, the TTIP negotiations as well as the EU law-making process are all matters receiving the Ombudsman’s recent attention.
In the context of the right to good administration, now a fundamental right under Article 41 of the Charter, transparency encompasses a number of further aspects: the openness and accessibility of processes through which decisions are made, the proper reasoning of decisions and openness as to those reasons and the availability of the information taken into account when decisions are made.
Article 11 of the Treaty on European Union provides for greater transparency as regards interactions with the public and civil society, by stipulating that the institutions shall (i) give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action and (ii) maintain an open, transparent and regular dialogue with representative associations and civil society. For its part, the Commission is required to “carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.” Without this transparency, citizens are not empowered to participate in public life and are likely to have less confidence in those democratic institutions which are supposed to further public interest.
The Transparency of EU Negotiations
One of the most contentious areas in the practical application of any rules on access to information is the space required by governments to conduct certain business in private. Sometimes confidentiality is expressed as being for the benefit of third parties, or maintaining effective business or diplomatic relations. Sometimes it is said to be necessary to ensure that internal discussions on policy proposals can be full and frank, without fear of prejudicial exposure for putting forward an option which was not accepted.
Most regimes, including those which apply to EU institutions, bodies, offices and agencies require the demonstration of potential harm arising from the disclosure of the information in question or consideration of public interest as a potential countervailing argument.
The Ombudsman’s mandate is to consider instances of possible maladministration in the institutions, bodies, offices and agencies of the EU. Under Regulation 1049/2001, a complaint to the Ombudsman is an alternative avenue of complaint to an application to the court. Unlike Information Commissioners in some EU Member States, the Ombudsman can only make a recommendation for the disclosure of withheld documents. Although her decisions are not binding in law, her recommendations are mostly followed.
In 2015, the overall rate of compliance with Ombudsman proposals, remarks and recommendations was 90%. If the Ombudsman is dissatisfied with an organisation’s response to her recommendation, she may make a Special Report to Parliament. Even if the institution is not willing to argue its case in a court of law, it may still have to do so before the Parliament and in the court of political and public opinion.
The transparency of negotiations is routinely considered in the context of a straightforward contractual situation. The monetary value of a deal will always be relevant where public funds are involved and the greater the amount of expenditure involved, the greater the public interest in the disclosure of information about the transaction being negotiated is likely to be.
However, the nature of the agreement and the potential impact on the lives of citizens and residents across the EU is also a highly relevant factor when considering appropriate transparency measures in relation to negotiations at EU level, such as the Transatlantic Trade and Investment Partnership (TTIP).
TTIP is a wide-ranging trade and investment partnership being agreed between the United States and the European Union. In July 2014, the European Ombudsman opened an inquiry into the European Commission’s arrangements for the public disclosure of information concerning the TTIP negotiations. When launching the inquiry, the Ombudsman noted that the Commission had made real efforts to make the TTIP negotiating process transparent and to promote public participation. Although many documents had been released and lists of meetings published, there had been delays in replying to some requests for TTIP documents. Concerns had been expressed about certain stakeholders having privileged access to documents.
One of the key themes of the decisions and recommendations of the Ombudsman is the benefits of proactive transparency. Since transparency is a key aspect of good administration and a way of enhancing the legitimacy of action taken by institutions on behalf of citizens, the opportunity to proactively disseminate information about what is being done should be seized. It is in the public interest that people are informed of the work of the institutions of the EU. Institutions should not be waiting to see whether there is demand for information before publishing it and a request for documents should not need to be the trigger for thinking about the publication of information.
The Ombudsman therefore pointed out that a proactive approach to transparency could make the negotiating process more legitimate in the eyes of citizens. She made a range of suggestions, encouraging the European Commission to publish documents proactively and to make information about meetings available. Most importantly, the Ombudsman opened an own-initiative inquiry into the fact that the TTIP negotiating directives – the very basis on which the Commission had been asked to negotiate with its US counterparts – had not been disclosed by the European Council. Positive responses to both these initiatives and pressure from the European Parliament have significantly increased the amount of information about the TTIP negotiations officially put into the public domain by the EU.
The international Dimension
It has to be recognised that discussions aimed at reaching trade agreements with international partners are very likely to be complicated by factors which would not apply in negotiations between contracting parties from the same jurisdiction or economic region. Most access to information regimes make provision for an exception aimed at the protection of international relations. Article 4(1) of Regulation 1049/2001 states “The institutions shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards… international relations…” As the Ombudsman pointed out in her Decision following the TTIP inquiry, this exception does not apply simply because the subject matter of a document concerns international relations, but only where disclosure would undermine the public interest. Hence, the likelihood of damage to international relations as a result of disclosure of the information in question has to be demonstrated.
What attracts a high degree of sensitivity and, if disclosed, could be damaging in one country, might be regarded as fairly routine for public disclosure in another country. In the EU context, it is generally acknowledged that there is a public interest in maintaining the trust and confidence of any international partner of the EU. The law or good practice invariably requires that, when considering access to information the disclosure of which could be unwelcome to an international partner, there should be consultation with that partner before any decision to disclose is taken. Even if there is a serious difference of opinions as to the merits of disclosure of the information at issue, there will always be a need to respect, and often to respond positively to reasonable and well-grounded requests for the non-disclosure of information.
Nevertheless, again as the Ombudsman made clear in her TTIP Decision, an international partner cannot have an unfettered veto over the disclosure of documents in the possession of the EU institutions. The body making the decision on disclosure, under the applicable law in the relevant jurisdiction, remains legally accountable for that decision. The public interest both in disclosure and in the protection of international relations have to be taken into account.
The Future – Proactive Transparency
Despite some significant advances in recent years, it is all too often the case that the instinctive reaction of public bodies is to come down in favour of applying an exception and not disclosing the information. Often the opportunity to disclose information proactively is missed completely, consciously or unconsciously, and the disclosure decision is made only on receipt of a request for access to documents. The assumption is made that the negotiating process needs to be kept confidential in order to protect the interests of the parties and the integrity of the process itself.
Having considered some of the particular factors which apply in relation to transparency when conducting external negotiations, with particular reference to the TTIP example, it is worth considering more generally the current movement towards greater transparency in the EU and whether there is a shift in expectations of and practice in the EU institutions.
A number of inquiries by the Ombudsman over recent months have produced recommendations for more transparency and, in particular, proactive transparency measures. The fact that the Ombudsman is able to approach the issue of transparency both by considering retrospective complaints where requests for documents have been refused, delayed or otherwise inappropriately handled, and by using her own initiative powers as an aspect of good administration, enables a two-pronged approach which is not available to all information watchdogs. While there is a good case for strengthening the requirements of Regulation 1049/2001 for the benefit of EU citizens and residents, the key to more useful transparency in practice lies in more and more routine, timely dissemination of information, which enables greater public participation in policy development and decision making.
The better way is more contemporaneous transparency through the proactive publication of relevant information in a timely and accessible manner. Here there are positive signs which can be seen in the responses of the Commission to recommendations made by the Ombudsman, including on the TTIP negotiations.
The Commission, for its part, claimed in late 2014 that “in practical terms, most important negotiating documents on TTIP will be publicly available soon after they have been presented in the negotiations.” The Ombudsman has welcomed the continuous assessment of TTIP documents for proactive publication, although more steps could be taken to publish on the Commission’s website documents released in response to requests under Regulation 1049/2001. In addition, the practice of giving privileged access to certain stakeholders in advance of others appears to have stopped. Universal and easy accessibility of information is vital if disclosure of information is to lead to genuine transparency.
The European Ombudsman is in a strong position to influence the EU institutions’ approach to transparency and good administration. Her strong democratic mandate gives her independent oversight of the institutions and their performance in important areas of good governance, compliance with administrative law and respect for fundamental rights. By investigating individual complaints and using her own initiative powers to conduct strategic inquiries into alleged maladministration, the Ombudsman is uniquely placed to address issues in a complementary manner, both after the event and in anticipation.
However, this is not to give any indication of complacency with regard to the transparency of negotiations or good administration in the EU. Too often still the instinctive reaction of officials is to not be open. The response to a request for documents is often to comb the list of available exceptions to see what reasons might be given to justify non-disclosure.
Further progress is needed to give much greater priority to the proactive publication of information and documents which would better inform EU citizens and residents of the work being done in their name. The access to documents regime should only be needed as a backstop in exceptional cases, but it would benefit from being less prescriptive, with more scope for disclosure in the public interest and with a stronger enforcement mechanism to deliver more timely and definitive outcomes. The European Ombudsman stands ready to take and support further steps towards a more transparent and effective EU administration.
Graham Smith is Member of Cabinet and senior advisor on access to documents, including data protection interface, at the European Ombudsman. A high level speaker on behalf of EO, he advises EO and SG on complaint handling processes and outcomes as well as on international IC relations in liaison with the Communications Unit.J.Adriaensen