P9_TA(2021)0043

Public access to documents for the years 2016-2018

European Parliament resolution of 10 February 2021 on public access to documents (Rule 122(7)) — annual report for the years 2016-2018 (2019/2198(INI))

(2021/C 465/06)

The European Parliament,

—	having regard to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), in particular Articles 1, 9, 10, 11 and 16 TEU and Article 15 TFEU,

—	having regard to the Charter of Fundamental Rights of the European Union (the ‘Charter’), in particular Articles 41 and 42 thereof,

—	having regard to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1),

—	having regard to its resolution of 11 March 2014 on public access to documents (Rule 104(7)) for the years 2011-2013 (2),

—	having regard to its resolution of 28 April 2016 on public access to documents (Rule 116(7)) for the years 2014-2015 (3),

—	having regard to its resolution of 14 September 2017 on transparency, accountability and integrity in the EU institutions (4),

—	having regard to the Annual Reports of the European Ombudsman and to her Special Report in strategic inquiry OI/2/2017 on the transparency of the Council legislative process,

—	having regard to its resolution of 17 January 2019 on the Ombudsman’s strategic inquiry OI/2/2017 on the transparency of legislative discussions in the preparatory bodies of the Council of the EU (5),

—	having regard to the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR),

—	having regard to the Commission, Council and Parliament reports of 2016, 2017 and 2018 on the application of Regulation (EC) No 1049/2001,

—

having regard to Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (6),

—	having regard to its resolution of 16 November 2017 on the annual report on the activities of the European Ombudsman in 2016 (7),

—	having regard to President Ursula von der Leyen’s Political Guidelines for the Commission 2019-2024,

—	having regard to Rule 54 and Rule 122(7) of its Rules of Procedure,

—	having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Constitutional Affairs (A9-0004/2021),

whereas, under the Treaties, the Union ‘shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions’ (Article 9 TEU); whereas ‘every citizen shall have the right to participate in the democratic life of the Union’, and whereas ‘decisions shall be taken as openly and as closely as possible to the citizen’ (Article 10(3) TEU, read in the light of the thirteenth recital of its preamble and its Articles 1(2) and 9);

whereas Article 15 TFEU states that ‘in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible’ and that ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies’;

whereas the right of access to documents, and its status as a fundamental right, is further emphasised by Article 42 of the Charter, which now enjoys ‘the same legal value as the Treaties’ (Article 6(1) TEU); whereas the right to access to documents enables citizens to effectively exercise their right to scrutinise the work and activities of the EU institutions, bodies, offices and agencies, in particular the legislative process;

whereas the functioning of the EU institutions should be in compliance with the principle of the rule of law; whereas the EU institutions must strive for the highest possible standards of transparency, accountability and integrity; whereas these guiding principles are key components in promoting good governance within the EU institutions and in ensuring greater openness in the functioning of the EU and its decision-making process; whereas citizens’ trust in the EU institutions is fundamental for democracy, good governance and effective policy-making; whereas transparency and access to documents should also be guaranteed in relation to the way in which EU policies are implemented at all levels and EU funds are used; whereas openness and the participation of civil society are indispensable for promoting good governance in the EU institutions; whereas, in accordance with the basic principles of democracy, citizens have a right to know and to follow the decision-making process; whereas the European Parliament works with a high degree of transparency in its legislative procedure, including at the committee stage, which makes it possible for citizens, the media and stakeholders to see how and why decisions are made and to clearly identify different positions within Parliament and the origin of specific proposals, as well as to follow the adoption of final decisions;

whereas according to Article 16(8) TEU the Council must meet in public when it deliberates and votes on a draft legislative act; whereas according to the Ombudsman the current practice of marking most preparatory documents in ongoing legislative procedures as ‘LIMITE’ constitutes a disproportionate restriction on citizens’ right to the widest possible access to legislative documents (8); whereas the absence of a commitment to ensuring transparency by the Council reflects a lack of accountability in its role as EU co-legislator;

whereas the leading concerns in the inquiries closed by the Ombudsman in 2018 were transparency, accountability and public access to information and documents (24,6 %), followed by a culture of service (19,8 %) and the proper use of discretion (16,1 %); whereas other concerns included respect for procedural rights such as the right to be heard, respect for fundamental rights, ethical issues, public participation in EU decision-making, including in infringement procedures, the sound financial management of EU tenders, grants and contracts, and recruitment and the good management of EU personnel issues;

whereas in 2018 the Ombudsman launched a new website which includes a revised and user-friendly interface for potential complainants; whereas the Ombudsman’s ‘fast-track’ procedure for dealing with complaints about public access to documents reflects the Ombudsman’s commitment to provide assistance and to take decisions quickly for those seeking assistance;

whereas the Ombudsman’s strategic inquiry OI/2/2017/TE found that the Council’s lack of transparency regarding public access to its legislative documents and its current practices in its decision-making process, specifically during the preparatory stage in the Council preparatory bodies, including its committees, working parties and the Committee of Permanent Representatives (Coreper), constitute maladministration; whereas on 16 May 2018, following the Council’s reluctance to implement her recommendations, the Ombudsman submitted Special Report OI/2/2017/TE on the transparency of the Council legislative process to Parliament; whereas in its resolution of 17 January 2019 on the Ombudsman’s strategic inquiry, Parliament endorsed the Ombudsman’s recommendations;

whereas in case 1302/2017/MH on the Commission’s handling of a request for public access to the opinions of its Legal Service concerning the Transparency Register, the Ombudsman found that the Commission’s continuous refusal to grant wider access to the documents constituted maladministration due to the fact that the Commission had failed to be as open and forthcoming as possible about the very measure aimed at promoting transparency as a means to achieve greater EU legitimacy and accountability;

Transparency from a broader perspective

Is resolutely determined in its endeavour to bring citizens closer to its decision-making process; emphasises that transparency and accountability are fundamental to retain citizens’ trust in the EU’s political, legislative and administrative activities; stresses that Article 10(3) TEU recognises participatory democracy as one of the main democratic principles of the EU, thereby highlighting that decisions must be taken as close to the citizens as possible; recalls that fully democratic and highly transparent decision-making at European level is indispensable to increase citizens’ trust in the EU institutions; emphasises the necessity for all the institutions of the EU to move forward with a similar level of transparency;

Notes with satisfaction the designation of a Commissioner responsible for transparency with a mission to introduce greater transparency into the legislative process in the European institutions;

Recalls that Parliament represents the interests of European citizens in an open and transparent manner with the aim of keeping them fully informed, as confirmed by the Ombudsman, and takes note of the progress made by the Commission in improving its transparency standards; is deeply concerned by the fact that despite the calls and recommendations of the Parliament and the Ombudsman, the Council has not yet implemented comparable standards and the decision-making process in the Council is far from transparent; calls on the Council to implement the relevant CJEU rulings in practice and not to circumvent them; appreciates the good practices of certain Council presidencies and also of certain Member States in publishing Council documents, including Council presidency proposals;

Welcomes the decision of the Council of the EU, further to the opening by the Ombudsman of case 1011/2015/TN, to apply Regulation (EC) No 1049/2001 to documents held by its General Secretariat in relation to tasks of support to various intergovernmental bodies and entities, such as the opinions of the panel in question regarding the candidates’ suitability to perform the duties of Judge and Advocate-General at the Court of Justice and the General Court of the EU; salutes the Ombudsman’s opinion that greater openness is to be favoured regarding the issue of how to strike the correct balance between the need to protect the personal data of persons being assessed for high public office with the need to ensure maximum transparency in relation to the process of making appointments to high public office;

Regrets the recurrent practice of the Commission in providing an often only very limited amount of information on the implementation of EU legislation to Parliament; calls for the institutions to respect the principle of sincere cooperation and proactively publish this information; expresses regret at the Commission’s refusal to publish statistics indicating the effectiveness of EU policies, which hinders any public scrutiny of policies with a significant impact on fundamental rights; calls on the Commission to be more proactive in publishing such statistics in order to prove that policies are necessary and proportionate to achieving their objective; calls on the Commission to be transparent as regards contracts with third parties; calls on the Commission to be more proactive in publishing as much information as possible about the tender processes compared to its current practices;

Stresses the importance of the measures taken to enhance the transparency of decisions taken in infringement procedures; calls, in particular, for documents sent by the Commission to Member States in connection with such procedures, and the related replies, to be made accessible to the public;

Stresses that international agreements are legally binding and have an impact on EU legislation, and underlines the need for negotiations to be transparent throughout the entire process; recalls that according to Article 218 TFEU, Parliament must be fully and immediately informed at every stage while negotiations are taking place; calls on the Commission to step up its efforts and to ensure full compliance with Article 218 TFEU;

Deeply regrets the fact that the Commission and Council insist on in camera meetings without proper justification; considers that requests for in camera meetings should be properly evaluated; calls for clear criteria and rules governing requests for in camera sessions in the EU institutions;

Points out that transparent law-making is of the utmost importance to citizens and is an important way to ensure their active participation in the law-making process; welcomes the 2016 Interinstitutional Agreement on Better Law-Making (IIA), and the commitment therein by the three institutions to ensure the transparency of legislative procedures on the basis of relevant legislation and case law, including an appropriate handling of trilateral negotiations;

10.

Urges the institutions to continue discussions on moving towards the establishment of a dedicated and user-friendly joint database on the state of play of legislative files (Joint Legislative Database) as agreed in the IIA on Better Law-Making to ensure greater transparency;

11.

Welcomes the initiatives already launched which address public demands for more transparency, such as the Interinstitutional Register of Delegated Acts launched in December 2017 as a joint tool of Parliament, the Commission and the Council giving access to the whole lifecycle of delegated acts;

12.

Points out that the transparency of the comitology procedures and the accessibility of the comitology register should be further increased and that changes to its content should be made in order to ensure greater transparency concerning the decision-making process; underlines that improving the search functions of the register to allow searches by policy area should be an essential constituent of this process;

13.

Welcomes the new Code of Conduct for the Commission’s members, which entered into force in February 2018, and which increases transparency primarily in relation to the meetings held between the Commissioners and interest representatives, as well as to the costs of the business travel of individual Commissioners; regrets the fact that the Council has still not adopted a code of conduct for its members and urges the Council to adopt such a code without further delay; insists that the Council must be as accountable and transparent as the other institutions;

14.

Recalls its revised Rules of Procedure according to which Members are invited to adopt the systematic practice of only meeting interest representatives that have registered in the Transparency Register; also recalls that Members are invited to publish online all scheduled meetings with interest representatives falling under the scope of the Transparency Register, while rapporteurs, shadow rapporteurs and committee chairs are obliged, for each report, to publish online all scheduled meetings with interest representatives falling under the scope of the Transparency Register; points out in this context, however, that elected representatives are free to meet with anyone they consider relevant and important for their political work, without restrictions;

15.

Considers that the current way of finding information about the voting patterns of Members of the European Parliament, via PDF files covering hundreds of votes on Parliament’s website, is not user-friendly and does not contribute to the EU’s transparency; calls for a user-friendly system whereby for each roll-call vote the text voted on and the voting results can be filtered by group and by MEP, and therefore visible at the same time;

16.

Welcomes the fact that the negotiations on the Commission proposal for an IIA on a mandatory Transparency Register (COM(2016)0627) have finally been concluded, and urges the three institutions to swiftly implement it; underlines that in order to maintain a high level of trust in the European institutions among citizens, more transparency is needed regarding the meetings organised within the institutions;

17.

Also encourages members of national governments and parliaments to aim for greater transparency regarding their meetings with interest representatives as, when taking decisions on EU matters, they are part of the EU legislature in the wider sense;

Access to documents

18.

Recalls that the right of public access to documents of the institutions is a fundamental right enshrined in the Treaties and the Charter and is inextricably linked with the democratic nature of the institutions; stresses that the widest exercise of this right at the earliest stage is essential, as it ensures the democratic scrutiny of the work and activities of the EU institutions; recalls that citizens’ trust in political institutions is a key founding element of representative democracies;

19.

Recalls its calls made in its previous resolutions on public access to documents; regrets the fact that there has been no proper follow-up from the Commission and the Council to several proposals made by Parliament;

20.

Points out that transparency and full access to the documents held by the institutions have to be the rule, in accordance with Regulation (EC) No 1049/2001, and that, as has already been stipulated by the precedents consistently set by the CJEU, exceptions to that rule have to be strictly interpreted, taking into account the overriding public interest in disclosure;

21.

Reiterates the importance of not over-classifying documents, which could be to the detriment of public scrutiny; regrets the fact that official documents are frequently over-classified; reiterates its position that clear and uniform rules should be established for the classification and declassification of documents;

22.

Takes note of the fact that the Commission faces the highest number of initial applications (6 912 in 2018) involving specified documents, followed by the Council (2 474 in 2018) and Parliament (498 in 2018); acknowledges the overall positive response rate (in 2018 the figures were 80 % for the Commission, 72,2 % for the Council and 96 % for Parliament);

23.

Notes with interest that the main grounds for refusal are based on the need to protect the decision-making process of the institutions, the privacy and the integrity of individuals, and the commercial interests of a specific natural or legal person; further notes that for Parliament, the protection of legal advice has also been a relevant ground in cases where mainly Bureau documents were requested, while for the Commission, carrying out inspections, investigations and audits, and public security were also relevant grounds in refusing access to documents;

24.

Welcomes the decision of the European Court of Justice, in case C-213/15 P (Commission v Patrick Breyer), where the Court upheld the judgment of the General Court, finding that the Commission cannot refuse access to any written submission of a Member State held by it, on the sole ground that it is a document relating to court proceedings; notes that the Court considers that any decision on such an application for access must be taken on the basis of Regulation (EC) No 1049/2001 and that documents linked to the Court of Justice's judicial activity are not, as a matter of principle, outside the scope of the Regulation, where they are in the possession of the EU institutions listed in the Regulation, such as the Commission in this specific case;

25.

Supports the call made by civil society (9) for public hearings of the European Court of Justice to be live streamed, as is already the case for some national and international courts, such as the Conseil Constitutionnel in France and the European Court of Human Rights;

26.

Recalls its calls on the Commission and Council in its resolution of 28 April 2016 on public access to documents for the years 2014-2015;

27.

Recalls that the revision of Regulation (EC) No 1049/2001 has been blocked since 2012, and notes with regret the Commission’s intention to withdraw this proposal; urges all involved parties to re-enter the process and continue working on the revision in order to adapt the provisions of the Regulation to the Treaty of Lisbon and to ensure that the scope extends to all EU institutions, bodies and agencies, with the ultimate aim of giving EU citizens wider and improved access to EU documents;

28.

Points out that, as a result of the entry into force of the TEU and the TFEU, the right of access to documents pertains to all EU institutions, bodies, and agencies, as stated in Article 15(3) TFEU; believes that Regulation (EC) No 1049/2001 should be amended and modernised in order to bring it into line with the Treaties, to react to the developments that have taken place in this field and in the light of the relevant case law of the CJEU and ECtHR; urges, therefore, all three institutions to work constructively in order to achieve the adoption of a revised Regulation;

29.

Stresses that ensuring that citizens are able to understand, follow in detail and participate in the progress of legislation is a legal requirement under the Treaties and a basic requirement for democratic scrutiny and democracy as a whole; considers that where documents are created in the framework of trilogues, such as agendas, summaries of outcomes, minutes and general approaches in the Council, where they are available and in the format in which they are available, such documents are related to legislative procedures and cannot, in principle, be treated differently from other legislative documents;

30.

Emphasises the importance of transparency and public access to documents; stresses that a high level of transparency in the legislative process is essential in terms of enabling citizens, the media, civil society and other stakeholders to hold their elected officials and governments to account; acknowledges the valuable role played by the Ombudsman in liaising and acting as a mediator between the EU institutions and citizens, and highlights the Ombudsman’s work in making the EU legislative process more accountable to the public;

31.

Recalls that, according to the Ombudsman, restrictions on access to documents, particularly legislative documents, should be exceptional and limited to what is absolutely necessary; welcomes the Ombudsman’s fast-track procedure for access to documents, but regrets the fact that her recommendations are not legally binding;

32.

Points out that any decision denying public access to documents must be based on clearly and strictly defined legal exemptions, accompanied by a reasoned and specific justification, allowing citizens to understand the denial of access and to make effective use of the legal remedies available; notes with concern that currently the only legal avenue open to citizens for challenging a refusal of an access to documents request is to bring a legal action in the CJEU, which entails lengthy processes, the risk of high costs and an uncertain outcome, and puts an unreasonable burden on citizens challenging decisions, deterring them from doing so;

33.

Invites, in this context, the EU institutions, bodies and agencies to adopt faster, less cumbersome and more accessible procedures for handling complaints against refusals to grant access; considers that a more proactive approach would help ensure effective transparency, as well as prevent unnecessary legal disputes that could result in needless costs and burdens for both the citizens and the institutions; considers that citizens should not be prevented from challenging decisions due to lack of means; recalls the possibility of applying for legal aid as enshrined in the Charter; invites the EU institutions to refrain from calling on the opposing party to bear the costs of court cases;

34.

Recalls, in this context, the Ombudsman’s decisions dated 19 December 2017, in case 682/2014/JF where the Commission’s requirement that all persons who ask for public access to documents must provide their postal address for its paper post sending arrangements is maladministration, highlighting that insisting on renewed requests and procedural formalities, when they are unnecessary and serve no obvious useful purpose, shows a lack of respect for citizens’ fundamental rights;

35.

Strongly regrets the fact that the Council does not proactively publish most documents related to legislative files, preventing citizens from knowing what documents actually exist and thereby impeding their right to request access to documents; regrets the fact that the available information on legislative documents is presented by the Council in a register which is incomplete and not user-friendly; calls on the Council to list the documents related to legislative files in a user-friendly public register, thereby fully reflecting the public interest in transparency and allowing for legitimate scrutiny not only by citizens, but also by national parliaments;

36.

Urges the Council to align its working methods with the standards of a parliamentary and participatory democracy as required under the Treaties, and reiterates that the Council must be as accountable and transparent as the other institutions;

37.

Fully endorses the European Ombudsman’s recommendations to the Council following the strategic inquiry, namely: (a) to systematically record the positions expressed by Member States in discussions with preparatory bodies, (b) to develop clear and publicly available criteria on how it designates documents as ‘LIMITE’, and (c) to systematically review the ‘LIMITE’ status of documents before the final adoption of a particular piece of legislation and that this review should be undertaken before informal negotiations in trilogues, at which point the Council will have already reached an initial position; urges the Council to take all measures necessary to implement the Ombudsman’s recommendations as quickly as possible in order to guarantee the transparency of legislative discussions in its preparatory bodies;

38.

Considers the Council’s current widespread and arbitrary practice of marking most preparatory documents in ongoing legislative procedures as ‘LIMITE’ as a restriction on citizens’ right to the widest possible public access to legislative documents;

39.

Takes note of the fact that Parliament has seen a significant increase in applications requesting public access to the multi-column documents discussed in trilogue meetings following the judgment of the General Court in the De Capitani case (10), and notes with satisfaction that since the judgment, Parliament has disclosed all the multi-column documents to which access was requested under Regulation (EC) No 1049/2001; welcomes this fact since the openness of the legislative process contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens; underscores that the general requirement to give access to documents is the most appropriate tool for all the EU institutions to be able to respond to the huge increase in requests for documents;

40.

Underlines that the Court ruling in the De Capitani case in March 2018 states that the institutions’ views reflected in the ‘four-column’ documents did not fall under a general presumption of non-disclosure; notes that the sensitive nature of the subject matter reflected in the trilogue documents was not in itself considered to constitute sufficient grounds for refusing access to the public;

41.

Recalls that the conclusions of the General Court apply to all EU institutions and that the Court makes it clear that where a document originating in an EU institution is covered by an exception to the right to public access, the institution must clearly assess and explain why access to this document could specifically and effectively undermine the interest protected by the exception, notably why full access to the documents at issue would undermine, specifically and actually, the decision-making process, thus requiring that this risk must be reasonably foreseeable and not purely hypothetical; stresses that any refusal of access to documents must be fully justified in every specific case;

42.

Welcomes the fact that the ClientEarth v Commission case significantly clarifies the scope of the concept of ‘legislative documents’ and that the CJEU found that documents drawn up in the context of an impact assessment qualify as legislative documents and therefore cannot be protected under a general presumption against public disclosure;

43.

Regrets the fact that the advice of the respective Legal Services of the Council, the Commission and Parliament are limited in access, and that often the advice of Parliament’s Legal Service is not even available to the members of other committees; calls for the institutions to ensure transparency;

44.

Takes note of the investigations opened by the European Ombudsman in 2020 into the practices of the agency Frontex when it comes to its obligations under EU rules with respect to public access to documents; urges the agency to follow up on the findings of the European Ombudsman and implement her recommendations on updating the register of documents and publishing the number of sensitive documents it holds that are not included in its register of documents (11);

45.

Stresses the important role of whistle-blowers in unveiling cases of maladministration, and supports measures to improve the protection of whistle-blowers against retaliation; calls on the institutions to evaluate and, where necessary, review their internal arrangements for reporting wrongdoing;

46.

Urges the Commission to ensure public access to all advance purchase agreements, in their full form, between the EU and private companies in the field of health, in particular when ordering vaccines;

Conclusions

47.

Stresses that the need for transparency should be in careful balance with the need to protect personal data and to allow decisions to be made with a degree of confidentiality where necessary;

48.

Strongly emphasises that any exceptions to public access to EU documents or information need to be analysed on a case-by-case basis, taking into consideration that access to such documents is the rule, while exceptions from the rule are matters of strict interpretation;

49.

Calls for all the institutions, bodies, offices and agencies to develop a common approach to access to documentation, including the procedure for trilogue materials, and to constantly explore and develop new methods and measures to achieve maximum transparency;

50.

Calls for the institutions to ensure the transparency of legislative procedures on the basis of the relevant legislation and case law and the recommendations of the Ombudsman;

51.

Calls for all the institutions to improve communication throughout the whole legislative cycle and to proactively disseminate more of their documents related to the legislative procedure in the most simple, user-friendly and accessible way, via their public websites and all other means of communication; underlines that more transparency is needed in relation to decision-making within infringement procedures; calls for the institutions to step up their efforts in establishing a dedicated and user-friendly joint database on the state of play of legislative files on which work is ongoing, as agreed in the Interinstitutional Agreement on Better Law-Making, allowing for transparency in the various steps of the legislative process and providing citizens with a clearer understanding of EU legislative procedures;

52.

Recalls that, in accordance with Article 3 TEU and the Charter, the Union’s rich linguistic diversity must be respected; calls for the institutions of the European Union to make every effort to provide access to documents in all the official languages of the European Union;

53.

Emphasises that open democratic societies depend on the ability of citizens to access a variety of verifiable information sources so that they can form a view on different issues; points out that access to information enhances accountability in decision-making and is essential for the functioning of democratic societies;

o o

54.

Instructs its President to forward this resolution to the Council and the Commission, to the governments and parliaments of the Member States, the Ombudsman, other bodies, offices, Agencies of the Union and the Council of Europe.

(1) OJ L 145, 31.5.2001, p. 43.

(2) OJ C 378, 9.11.2017, p. 27.

(3) OJ C 66, 21.2.2018, p. 23.

(4) OJ C 337, 20.9.2018, p. 120.

(5) OJ C 411, 27.11.2020, p. 149.

(6) OJ L 264, 25.9.2006, p. 13.

(7) OJ C 356, 4.10.2018, p. 77.

(8) https://www.ombudsman.europa.eu/en/recommendation/en/89518

(9) https://thegoodlobby.eu/campaigns/openletter-to-the-president-of-the-court-ofjustice-of-the-european-union-asking-foreu-courts-to-live-stream-their-publichearings

(10) Judgment of the General Court of 22 March 2018, Emilio De Capitani v European Parliament, T-540/15, ECLI:EU:T:2018:167.

(11) https://www.ombudsman.europa.eu/en/solution/en/137293