Transparency is an explicit normative choice made in the Lisbon Treaty and the Charter of Fundamental Rights. They place an obligation on the EU Institutions to ‘conduct their work as openly as possible’, take ‘decisions as openly as possible’ and ‘ensure publication of the documents relating to the legislative procedures’ with a view of guaranteeing that every EU citizen has the right to participate in the democratic life of the Union. Public access rules (Regulation No 1049/2001) exist to operationalize these principles.
I have been following the development of these rules since their creation in 2001 in various capacities, including as the representative of the Finnish government in the negotiations on their possible reform (following two Commission proposals in 2008 and 2011) and many of the lead court cases. After returning to academia in 2015, I became an active user of the rights granted by these rules. I not only file requests for documents that are needed for my research but also – after the almost inevitable denial of access – appeal negative decisions to both the EU Courts (here and here) and the European Ombudsman. For an observer with this kind of practical-historical lens, Ursula van der Leyen’s period as Commission President has offered a range of emotions ranging from astonishment to frustration, worry and anger.
Her second Commission seems to continue where the first one left off. In its first meeting on 4 December 2024, the new Commission revised its Rules of Procedure. They include an Annex on ‘Detailed rules for the application of Regulation (EC) No1049/2001’. In this Annex, the Commission unilaterally sets numerous limitations on the application of the transparency law, with the obvious aim of excluding as many of its own documents as possible from the scope of public access rules. In doing so, the ‘Guardian of Legality’ seems to forget that determining the level of transparency and access to documents is legally not at the discretion of individual institutions, but a normative choice made in the Treaty of Lisbon and the Charter.
The Commission’s proposal to revise No 1049/2001 (2008)
The Regulation applies to ‘all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union’ (Article 2(3)). Documents are public unless there are justified grounds to refuse disclosure. A document is defined broadly as ‘any content whatever its medium’. The Regulation establishes a number of exceptions and a two-stage procedure for applying access with a time limit of fifteen working days. It also requires proactive disclosure of legislative documents and an obligation to maintain public registers.
Seven years after its initial adoption, the Commission adopted proposal to recast the Regulation. The proposal touched upon some of its key choices, including the wide definition of a document and the broad scope of the Regulation.
In the Commission’s view, the definition of a document was too broad. It argued that a ‘document’ would only exist ‘if it has been transmitted to its recipients or circulated within the institution or been otherwise registered’. The proposal provoked heated debate, as it clearly increased institutional discretion. In addition, the Commission wished to exclude two categories of documents from the scope of access rules altogether. This included Court pleadings submitted by parties other than the institutions and ‘documents forming part of the administrative file of an investigation or of proceedings concerning an act of individual scope shall not be accessible to the public until the investigation has been closed or the act has become definitive’.
The Commission also made an attempt to bring the EU legal framework in line with the requirements of the Aarhus Convention on access to environmental information but did so in ways that were quickly found incomplete especially as regards the presumption of public interest in disclosure built into the Aarhus regime. The exception relating to ‘privacy and the integrity of the individual’ was to be replaced with a new provision establishing that
Names, titles and functions of public office holders, civil servants and interest representatives in relation with their professional activities shall be disclosed unless, given the particular circumstances, disclosure would adversely affect the persons concerned. Other personal data shall be disclosed in accordance with the conditions regarding lawful processing of such data laid down in EC legislation on the protection of individuals with regard to the processing of personal data.
A Council majority held sympathy for the Commission’s attempts to limit transparency. The Parliament, while speaking for more transparency, was eager to tie in issues that had relatively little to do with access to documents, such as interinstitutional issues and document classifications, and simply seemed to lack focus on what mattered.
In a highly inconvenient coincidence of timing, two months after the Commission tabled its proposal, the Court handed down its judgment in Turco. To the horror of the institutions’ legal services, the Court established that,
disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act […].
For the Court,
‘[o]penness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.’
As a consequence, access to legal opinions was raised in the recast negotiations by the legal services as a matter that urgently needed correcting, leading to a proposal for a new Article 4a(1):
Access to legal advice relating to issues which are the subject of a decision-making process until the relevant act becomes definitive or regarding a question of law which has not been decided, in last instance, by the Court of Justice, shall be presumed to undermine the protection of legal advice. The applicant may demonstrate that there is an overriding public interest justifying the disclosure of the documents. (Council Doc. No. 9441/12)
This was linked to a new paragraph 3 in the same Article, which constituted an all too obvious attempt to revise Turco: ‘[f]or the purpose of this article, the principles underlying this regulation do not in themselves constitute such an overriding public interest’ (Council Doc. No. 16757/12).
Legislative negotiations continued for a while, but with gradually reducing vigor, and were eventually stalled indefinitely.
Development through case law
Instead of a revision of Regulation 1049/2001, the law and case law continued to develop. The Lisbon Treaty entered into force, with strengthened emphasis on legislative transparency and the principle of participatory democracy. The new Treaty also broadened the scope of public access rules to all EU institutions, bodies and agencies.
With the legislative reform on hold, EU agencies implement Regulation 1049/2001 based on their own founding regulations. The EU’s data protection rules were updated, replacing the idea of protecting the ‘privacy and the integrity of the individual’ with a strongly consent-based approach. Since nearly every document is likely to include at least some personal data, these rules have since then dominated the application of the exception.
Outside the EU context, public access legislation often primarily focuses on the administration, while leaving legislative matters entirely outside their scope. In the EU Courts’ case law, however, the focus of EU public access rules turned on legislative matters. The Turco principle emphasising the importance of legislative transparency has been consistently upheld by the Court in later case law, also as regards Member State positions and trilogue documents. In a case concerning the publicity of impact assessment, the Court specifically confirmed that legislative transparency is also applicable to the preparatory legislative work in the European Commission, which is often decisive for legislative choices and outcomes.
Formally, the Court has continued to underline that,
although the legislative activity of the EU institutions requires particularly wide access to documents, that does not in any way mean that the other activities of those institutions fall outside the scope of Regulation No 1049/2001 which, as provided in Article 2(3) thereof, applies to all documents held by those institutions, that is to say, drawn up or received by them and in their possession, in all areas of EU activity.
However, in practice, the Court has been very understanding of the Commission’s wish to exclude many of its non-legislative documents from the scope of public access. While also rejecting some of the Commission’s stand points (such as on impact assessment and legal advice), it has, in many cases, accepted to replace the duty to carry out a concrete, individual examination of the content of the requested documents by a general presumption of confidentiality. This enables the Commission to de facto leave a large part of its key activities outside public access, including state aid, control of concentrations, merger control proceedings, investigations, infringement proceedings, proceeding under Article 81 EC (now Article 101 TFEU), and pilot procedures.
General presumptions are legally problematic for various reasons. First, they find no basis in Regulation No 1049/2001. Second, they are clearly contrary to the EU’s obligations under the Aarhus Convention, which requires all exception grounds for refusal to be ‘interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment’. Third, they have a direct and clear impact on the national authorities’ possibilities to disclose documents based on national legislation. After all, the Commission consistently holds that ‘the fact that the documents requested relate to or form the basis of a national legislative act does not alter their nature at EU level, nor does it change the fact that they form part of an ongoing infringement procedure’.
This is particularly problematic as regards infringement proceedings, which often have a direct impact on the interpretation or validity of national law and on national existing or to-be-introduced (changes to) national legislation. Beyond the legislative context, public interest in disclosure has remained at best ‘anaemic’.
Von der Leyen and transparency
During von der Leyen’s first Commission, the Commission’s own access to documents record remained in the limelight. Instead of a pursuing a reform of public access rules, it has tabled proposals based on Article 298 TFEU for Regulation 2023/2841, laying down measures for a high common level of cybersecurity and a proposal for a regulation on information security in the institutions, bodies, offices and agencies of the Union. Both are about secrecy, not openness.
When it comes to the Commission’s own handling of public access requests, the general policy is one of strategic delay, to the extent that an Ombudsman investigation found that ‘the systemic and significant delays in the Commission’s processing of requests for public access to documents amount to maladministration. The Commission needs, as a matter of priority, to correct this situation’.
Strategic delays have been the standard pattern also with my own requests that have concerned legal advice and other legislative documents, environmental information (including in the context of infringement cases), and documents relating to the Recovery and Resilience Facility. In many of these areas, my frustration has been shared with civil society and investigative journalists. In meetings with Commission officials, I have been told bluntly that transparency has no value in itself but rather exists to make things more difficult. In many ways, the Commission has ceased to apply public access rules in any meaningful way. Access delayed is often access denied.
Von der Leyen’s first Presidency culminated in the oral hearing in the General Court in November 2024 concerning the New York Times request to access the text messages involving the EU’s covid-19 vaccine purchases. The audience present in Court shared a collective cringe witnessing Commission lawyers struggling to offer any decent response to the very basic questions from the judges on how the search had been conducted and how the Commission had concluded that the messages were ‘non-essential’. There was no doubt in the minds of those present that everything had happened under clear instructions from the President’s Cabinet and that the Commission lawyers were working under gag orders from the same place.
These developments run contrary to the normative choice for transparency that was included in the Treaties because of its crucial importance for the EU and its institutions, and their shattered legitimacy.
Updated internal rules of 4 December 2024
To put it bluntly, there is no doubt that the new Commission rules adopted on 4 December 2024 are simply illegal. They conflict with EU Treaties, with Regulation No 1049/2001 and case law, and the EU’s obligations under the Aarhus Convention.
The Annex, inter alia, limits the right of access to ‘[c]itizens of the Union and natural or legal persons residing or having their registered office in a Member State’. This disregards the fact that, under the Aarhus Regulation, ‘Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Union institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities’.
Article 2 of the Annex introduces a number of limitations to the definition of the document – limitations of the kind that the Commission had proposed already in 2008 but which have never found their way into legislation. Presumably with the text message fiasco fresh in mind, these rules create new access barriers through rules about registration and non-registration, and the possibility of automatic deletion of unregistered emails and text messages. In essence, this is the Commission arbitrarily deciding what is or is not a relevant document that needs to be registered and ultimately made subject to public access requests.
Article 3 (regarding documents directly accessible to the public) serves to ensure that there is no timely access to legislative documents. Proactive disclosure is limited to legislative proposals as of their adoption, to be accompanied by impact assessments and the Regulatory Scrutiny Board opinion. This is clearly in violation of the case law quoted above, which underlines the need of proactive and timely disclosure prior to the adoption of legislative proposals.
Article 4 provides for a long list of presumptions of non-disclosure, reaching far beyond anything approved by the Court, including also ‘procedures under the Digital Markets Act and Digital Services Act and comparable administrative procedures’. The list includes ’documents being part of on-going administrative authorisation proceedings’, even if several examples of secondary legislation providing for disclosure actually exist. The list most notably also includes all legal opinions – a claim that has been repeatedly rejected by the Court.
The burden of proof is placed on the applicant, who is to demonstrate an overriding public interest in providing access. The Commission further defines that ‘proceedings are on-going until the act closing the proceedings can no longer be contested before the Union courts or a national court’, which extends the application of the presumptions more or less indefinitely, as there is no time limit for preliminary reference procedures.
The outgoing Ombudsman has repeatedly referred to the lack of engagement of the von der Leyen Commission with transparency concerns. The Annex makes this explicit. If a Commission decision is annulled by the Court, the Commission will adopt a new confirmatory decision implementing that judgment. However, an Ombudsman proposal for a solution or recommendation will be simply ‘assessed’, with a view of deciding whether the Commission should ‘grant further or full access to documents in the framework of the Commission’s reply to the proposal or recommendation’. This formalises the current Commission practice of ignoring Ombudsman recommendations.
Fiddling while Rome burns
The Treaties and the Aarhus Convention create legally binding obligations on the EU institutions. So, what do you do when the institution tasked as the
‘Guardian of the Treaties’ and the enforcer of the rule of law chooses to put itself, in its actual practices, in open disregard of the Treaties, EU’s international commitments and secondary law, and even has the chutzpah to put this disregard on paper and publish it as its internal rules?
Luckily, the Commission’s breach of its obligations can be challenged in several ways. Given the secrecy surrounding the approval of Commission rules and the short time limit for Court appeal, direct action of annulment is unlikely. However, the clear breaches of the EU’s obligations under the Aarhus Convention can lead to a request for internal review of administrative acts by non-governmental organisation or other members of the public under the Aarhus Regulation, which may also lead to proceedings before the Court of Justice. At least one such request has been filed by the environmental NGO ClientEarth. Finally, when the Commission denies access based on its new rules, such decisions can be challenged before the General Court, simultaneously invoking the illegality of provisions of the Rules of Procedure.
One cannot but wonder the short-sightedness of the Commission. Despite flashy initiatives such as the European Democracy Action Plan and the Defence of Democracy Package, the Commission seems to believe that democracy is distinct from how it upholds the basic principles of participatory democracy in its own institutional practices. It seems to suggest that it should be allowed to legislate in secret by approving internal rules that exist to ensure that citizens cannot get timely access to participate in decision making. In doing so, the Commission is rendering a huge disservice to an already weakened EU. Quis custodiet ipsos custodes?
Päivi Leino-Sandberg is Professor of Transnational European Law, University of Helsinki, e. She specialises in EU constitutional and institutional law, engages often in multidisciplinary work and uses empirical methods. Before returning full time to the academia in 2015, she worked for over 10 years as a legal adviser for the Finnish government participating in numerous EU and international negotiations and Court cases. Her recent books include a monograph entitled The Politics of Legal Expertise in EU Policymaking (CUP 2021), and three co-edited collections of essays Law, Legal Expertise and EU Policymaking (CUP 2022), (In)visible European Government. Critical Approaches to Transparency as an Ideal and a Practice (Routledge 2023) and Dynamics of Powers in the European Union (Hart Publishing 2024).
