P9_TA(2023)0295 – Public access to documents – annual report for the years 2019-2021 – European Parliament resolution of 13 July 2023 on public access to documents – annual report for the years 2019-2021 (2022/2015(INI))
Date: 2023-07-13
Institutions: Committee on Civil Liberties, Justice and Home Affairs, Committee on Constitutional Affairs, European Parliament
Subjects: Council of the European Union, European Commission, European Parliament, access to EU information, access to information, administrative transparency, application of EU law, data protection, provision of documents, right to information








C_202404014EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/4014


17.7.2024






P9_TA(2023)0295

Public access to documents – annual report for the years 2019-2021


European Parliament resolution of 13 July 2023 on public access to documents – annual report for the years 2019-2021 (2022/2015(INI))

(C/2024/4014)



The European Parliament,







—


having regard to the Treaty on European Union (TEU), in particular Articles 1, 9, 10, 11 and 16 thereof,










—


having regard to the Treaty on the Functioning of the European Union (TFEU), in particular Article 15 thereof,










—


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 the Commission proposal of 30 April 2008 for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (COM(2008)0229),










—


having regard to the Commission proposal of 21 March 2011 for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (COM(2011)0137),










—


having regard to its position of 15 December 2011 on the proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (2),










—


having regard to its resolution of 14 September 2017 on transparency, accountability and integrity in the EU institutions (3),










—


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 (4),










—


having regard to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (5) (‘the Whistleblower Directive’),










—


having regard to its resolution of 10 February 2021 on public access to documents (Rule 122(7) – annual report for the years 2016-2018) (6),










—


having regard to the European Ombudsman decision of 17 January 2022 in Case OI/4/2021/MHZ on how the European Border and Coast Guard Agency (Frontex) complies with its fundamental rights obligations and ensures accountability in relation to its enhanced responsibilities,










—


having regard to the report of the Frontex Scrutiny Working Group of 14 July 2021 of its Committee on Civil Liberties, Justice and Home Affairs on the fact-finding investigation on Frontex concerning alleged fundamental rights violations,










—


having regard to its resolution of 16 September 2021 on strengthening transparency and integrity in the EU institutions by setting up an independent EU ethics body (7),










—


having regard to its resolution of 21 October 2021 on EU transparency in the development, purchase and distribution of COVID-19 vaccines (8),










—


having regard to its resolution of 16 February 2022 on the annual report on the activities of the European Ombudsman in 2020 (9),










—


having regard to the report on the final outcome of the Conference on the Future of Europe, published in May 2022,










—


having regard to its decision of 18 October 2022 on discharge in respect of the implementation of the budget of the European Border and Coast Guard Agency for the financial year 2020 (10),










—


having regard to the Frontex publication of 12 May 2021 entitled ‘2020 Consolidated Annual Activity Report’,










—


having regard its resolution of 15 December 2022 on suspicions of corruption from Qatar and the broader need for transparency and accountability in the European institutions (11),










—


having regard to its resolution of 16 February 2023 on following up on measures requested by Parliament to strengthen the integrity of the European institutions (12),










—


having regard to the annual reports of the European Ombudsman,










—


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










—


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 judgment of the CJEU of 25 January 2023 in Case T-163/21, De Capitani v Council
                   (13) (hereinafter referred to as the ‘
                  De Capitani v Council judgment
                     ’
                  ),










—


having regard to judgment of the CJEU of 27 November 2019 in Case T-31/18, Luisa Izuzquiza and Arne Semsrott v European Border and Coast Guard Agency
                   (14) (hereinafter referred to as the ‘judgment in Case T-131/18’),










—


having regard to the Commission, Council and Parliament reports of 2019, 2020 and 2021 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 (15),










—


having regard to Rule 54 of its Rules of Procedure,










—


having regard to the opinion of the Committee on Constitutional Affairs,










—


having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs, (A9-0179/2023),










A.


whereas the TEU provides that ‘every citizen shall have the right to participate in the democratic life of the Union’ and that decisions must be taken as openly and as close to citizens as possible (16); whereas the TFEU provides that the Union’s institutions, bodies, offices and agencies are to conduct their work as openly as possible and that citizens and residents must have a right of access to documents (17); whereas the right of access to documents is a fundamental right, protected by the Charter and the Treaties, that citizens should be able to exercise in a proactive way, enabling them 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 CJEU has repeatedly stressed the link between access to documents and democracy;










B.


whereas Regulation (EC) No 1049/2001 recognises the particular importance of providing even wider access to documents when EU institutions act in their legislative capacity; underlines the particular need to ensure direct access to legislative documents;










C.


whereas the CJEU has underlined that public scrutiny of information on which legislative action is taken is a precondition for the exercise of democratic rights (18); whereas the CJEU has concluded that openness about such information contributes to strengthening democracy by allowing citizens to scrutinise all the information that has formed the basis for a legislative act; whereas the CJEU has stated that citizens’ ability to access the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights;










D.


whereas openness and good governance in the functioning of the EU and its decision-making process are indispensable for building trust in the Union and will ensure greater legitimacy, efficiency and accountability of the administration to the citizens; whereas the functioning of the EU is founded on representative democracy; whereas the EU institutions, bodies, offices and agencies must strive for the highest possible standards on transparency, accountability and integrity; whereas there is a need to ensure scrutiny methods that combine democratic oversight, control and monitoring activities; whereas openness and participation of citizens and civil society in the democratic life of the Union are indispensable for promoting good governance in the EU institutions;










E.


whereas access to accurate information is vital in preventing misinformation and combating fake news;










F.


whereas in the report on the final outcomes of the Conference on the Future of Europe, the conference’s plenary called for improved accessibility for citizens to EU actions through better information, education, citizen participation and transparency; whereas it also called for the EU’s decision-making process to be improved in order to ensure the EU’s ability to act, while taking into account the interests of all Member States and guaranteeing a transparent and understandable process for citizens; whereas there is a clear public interest in disclosing legislative documents, so that citizens can effectively exercise their right to scrutinise the legislative process; whereas according to Article 16(8) TEU, the Council must meet in public when it deliberates and votes on a draft legislative act; whereas designating most preparatory documents in ongoing legislative procedures as ‘LIMITE’ represents a disproportionate restriction on citizens’ right to access legislative documents; whereas in order to enable citizens to fully exercise their right to access documents, all legislative documents produced and/or circulated in preparatory bodies should be listed in a user-friendly public register; whereas according to the CJEU, access to legislative documents must be as wide as possible and justifications for refusing access should be well founded, including in the Council’s working groups (19);










G.


whereas openness and transparency principles should govern not only the decision-making process, but also the way in which a text is drafted; whereas transparency and access to documents should also be guaranteed in relation to how EU policies are implemented at all levels and how EU funds are used;










H.


whereas citizens’ expectations as regards transparency, efficiency and accountability of public institutions, as well as possible technical solutions, have evolved in recent years; whereas in order to reflect these developments and to increase accountability and efficiency, it may be necessary to enforce the implementation of current legislation and CJEU and ECtHR case-law, the adoption of new technical solutions and guidelines and the adoption of measures to monitor progress;










I.


whereas the leading concerns raised in the inquiries closed by the European Ombudsman in 2021 were transparency in decision-making, accountability and the refusal of public access to information and documents (29 %), followed by a culture of service (26 %), the proper use of discretion, including in infringement procedures (18 %), respect for procedural rights (12 %) and the violation of fundamental rights (11 %) (20); whereas according to the Ombudsman’s 2021 annual report, the existence of ‘revolving doors’ continues to be a matter of concern;










J.


whereas in Case 1499/2021/SF (21), the Ombudsman found that the Council’s and the Commission’s refusal to give full public access to documents related to legislative negotiations constituted maladministration;










K.


whereas the 2021 review of the Ombudsman’s ‘fast-track’ procedure for dealing with complaints about public access to documents showed both a significant, two-thirds decrease in the processing times for complaints to the Ombudsman and an increase in the number of access-to-documents complaints (22);










L.


whereas in Case 1499/2021/SF (23), the Ombudsman found that the Council’s refusal to give full public access to documents related to legislative negotiations constituted maladministration; whereas keeping the public informed about the progress of legislative procedures is a legal requirement; whereas timely access to legislative documents is crucial for citizens to exercise their Treaties-based right to participate in the democratic life of the EU;










M.


whereas the Union’s response to the COVID-19 crisis showed its ability to act, but also demonstrated the need for increased transparency within the Union, including the need to adopt a better policy on tackling disinformation, in order to obtain better and more accurate information for EU citizens; whereas the Council’s ‘ad-hoc working group’ on COVID-19 certificates conducted its work without sufficient transparency;










N.


whereas Parliament adopted its first-reading position on the Commission proposal for a regulation amending Regulation (EC) No 1049/2001 in December 2011; whereas negotiations on that regulation have been at a standstill since 2012; whereas the EU has taken on many new responsibilities since the regulation came into force; whereas increased responsibility requires increased transparency, democratic scrutiny and accountability in order to uphold the EU’s credibility, legitimacy and trust in citizens’ eyes;










O.


whereas in the De Capitani v Council judgment, the CJEU made clear that the purpose of Regulation (EC) No 1049/2001 is to give the public a right of access that is as wide as possible, so any exceptions that derogate from this principle must be interpreted and applied strictly; whereas it furthermore clarified that Article 4(3) of Regulation (EC) No 1049/2001 provides, inter alia, an exception on access to legislative documents if their disclosure would seriously undermine the institution in question’s decision-making process; whereas when refusing access to documents by invoking that exception, the Council must demonstrate that disclosing the documents at issue would specifically and actually undermine its decision-making process and that the risk of such undermining is reasonably foreseeable and not purely hypothetical;










P.


whereas after the judgment in Case T-131/18 was decided in Frontex’s favour, the CJEU ordered two individuals to pay EUR 23 700 to Frontex for the recovery of its legal fees, an amount which the CJEU later reduced to EUR 10 520; whereas in its decision of 15 December 2022 in Joined Cases 1261/2020 and 1361/2020 (24), the Ombudsman found maladministration in Frontex’s recent practices regarding access to documents, specifically its refusal to communicate by email with individuals requesting access to documents; whereas these practices of raising technical obstacles to access to documents and seeking to recover excessive legal costs from complainants have a chilling effect on members of society seeking access to documents from Frontex and may eventually contribute to more obscurity, a greater lack of transparency and even complete inaccessibility to documents on Frontex’ activities; whereas in its resolution of 21 October 2021 (25) and in the Frontex Scrutiny Working Group report, Parliament called on Frontex to refrain from seeking to recover the (excessively high) costs of external lawyers from applicants in court cases based on access to information requests;







Recent developments










1.


Stresses that the EU institutions are obliged to implement Article 15(3) TFEU in line with democratic principles, in particular those laid down in Article 10(3) TEU and Article 42 of the Charter; recalls that Article 10(3) TEU recognises that ‘every citizen shall have the right to participate in the democratic life of the Union’, thereby highlighting that decisions must be taken as openly and closely to citizens as possible; stresses that transparency and the widest possible public access to documents are essential for ensuring the accountability and democratic scrutiny of the EU institutions, and that citizens’ trust in the EU directly depends on transparency;












2.


Takes note of the fact that the Commission receives the highest number of initial applications for public access to documents (7 445 in 2019, 8 001 in 2020, 8 420 in 2021), followed by the Council (2 567 in 2019, 2 321 in 2020, 2 083 in 2021) and Parliament (645 in 2019, 442 in 2020, 499 in 2021); acknowledges that the institutions’ response rate is positive overall (with 2019 response rates of 78 % for the Commission, 74,7 % for the Council, and 93 % for Parliament; 2020 rates of 81 % for the Commission, 84,1 % for the Council and 93 % for Parliament; and 2021 rates of 73,7 % for the Commission, 83,3 % for the Council and 95 % for Parliament); highlights, however, that regular delays and unfounded refusals to disclose documents, even partially, undermine citizens’ right to scrutinise the EU institutions; urges the EU institutions, bodies, offices and agencies to provide statistics on delays in responding to access requests; stresses that, for the Commission, reviews of initial decisions are delayed in 85 % of cases (26);












3.


Is concerned about the frequent use of the exceptions in Article 4 of Regulation (EC) (EC) No 1049/2001 to refuse to provide full access to documents; reiterates that an institution, body or agency invoking one of the access exceptions for documents under this article must make an objective and individual assessment, show that the risk to the protected interest is well founded, foreseeable and not purely hypothetical, and duly justify how access to the document would specifically and effectively undermine the protected interest (27); calls for the EU institutions, bodies, offices and agencies to integrate these assessments into their practices for providing access to documents; highlights that it may still be possible to disclose some parts of a document when other parts need to be protected, taking into account the overriding public interest in disclosure, including the need to ensure good governance, efficiency and accountability to citizens, as well as the closer involvement of citizens in the decision-making process; highlights the CJEU’s case-law (28) recognising the public’s right to access documents from Council working groups acting in the context of the legislative process; notes, however, that access still needs to be actively requested (29); notes with concern that common problems that people face when requesting access to documents are the refusal of access by institutions, bodies or agencies on the basis of insubstantial arguments and inconsistencies in the handling of similar document access requests; calls for the EU institutions to develop best practices to allow for the uniform application and interpretation of the provisions in Regulation (EC) No 1049/2001 and the relevant CJEU case-law; further calls for the EU agencies to implement Regulation (EC) No 1049/2001 in their policies on access to documents (30);












4.


Recalls that, according to the European Ombudsman, restrictions on access to documents, particularly legislative documents, should be exceptional and limited to what is absolutely necessary; recalls further 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, to enable citizens to understand the denial of access and make effective use of the legal remedies available; considers that a more proactive approach would help ensure effective transparency and prevent costly and burdensome legal disputes between citizens and institutions;












5.


Regrets the fact that access to the advice provided by the legal services of the EU institutions, bodies, offices and agencies is too limited; stresses that protecting the interest of the institutions, bodies, offices and agencies in seeking legal advice and in receiving frank, objective and comprehensive advice by limiting public access can only be done if the risk of the decision-making process being undermined is reasonably foreseeable and not purely hypothetical and if the legal advice covers matters of a particularly sensitive nature; takes note of the CJEU judgment (31) that stated that Regulation (EC) No 1049/2001 imposes, in principle, an obligation to disclose the Council legal service’s opinions related to any legislative process; notes that, according to the CJEU, the only possible grounds for refusal on account of protecting legal advice given in the context of the legislative process are if the content of the opinion is particularly sensitive in nature or has a particularly wide scope that goes beyond the context of the legislative process; echoes the CJEU’s opinion that, in such cases, the institution concerned is obliged to give a detailed statement outlining the reasons for such a refusal;












6.


Notes with great concern that, in 2021, following a request for public access to text messages between the Commission’s President and the CEO of a pharmaceutical company regarding the Commission’s purchase of COVID-19 vaccines, the Commission refused to acknowledge that such text messages fall within the definition of a ‘document’ under Regulation (EC) No 1049/2001; notes that, even though the Commission would have to register and search for such text messages, it could still decide not to grant full public access to them if the exceptions listed in Regulation (EC) No 1049/2001, such as commercial interest, applied; recalls that registering a document is a consequence of the existence of a document and not a prerequisite for its existence; takes note of the Ombudsman’s finding of maladministration by the Commission in this case (32); is concerned about the fact that the Commission has failed to follow up on the Ombudsman’s recommendation following her inquiry to conduct another search for relevant text messages; calls on the Commission to conduct a full search without delay; expresses deep concern about the growing distance between citizens and the EU institutions, which this situation has caused;












7.


Regrets that the Commission’s internal policy is, in effect, not to register text messages, as it argues that text messages are ‘short-lived documents’ in nature and ‘are not meant to contain important information relating to policies, activities and decisions of the Commission’; points out, however, that in practice, text messages are being used for this purpose; urges the Commission to bring its internal guidelines on document registration in line with Regulation (EC) No 1049/2001 and to register text messages related to its policies, activities and decisions; notes with interest the fact that, in several Member States, it has become common practice for public bodies to archive text messages related to their policies, activities and decisions, subject to document-access laws;












8.


Notes that the Commission has been deleting documents, including minutes from closed meetings, reports and internal documents; expresses its concern about the fact that this practice has led to the disappearance of important correspondence relevant to policy decisions; calls on the Commission to ensure the systematic registration and archiving of non-private correspondence related to key political decisions by default;












9.


Regrets Parliament’s difficulty in getting access to full and detailed information from the Commission on the implementation and enforcement of EU law; regrets the lack of proactively published overviews of up-to-date information on the latest proceedings in all specific infringement cases, especially those in which infringements have been pending for a long period of time, as well as the lack of information on EU Pilot, an informal dialogue between the Commission and the Member States on the application of EU law preceding a possible infringement; believes that this hampers parliamentary and public scrutiny; calls for the EU institutions to respect the principle of sincere cooperation and to proactively publish this information;












10.


Regrets that the Commission does not proactively publish statistics indicating the effectiveness of EU policies, in particular those relating to justice and home affairs, which, to a large degree, hinders public scrutiny over policies that significantly impact fundamental rights; calls on the Commission to proactively publish such statistics in order to prove that policies are necessary and proportionate to achieve their objectives;












11.


Regrets that official documents are frequently over-classified by the EU institutions; reiterates its position from previous reports on access to documents on the need to establish clear and uniform rules for the classification and declassification of documents and to establish an independent EU authority to oversee enforcement of these rules; regrets the lack of serious follow-up by the Commission and the Council;












12.


Stresses that international agreements have binding force and an impact on EU legislation, and underlines the need for negotiations to be transparent to Parliament throughout the entire process, including by ensuring MEPs’ access to relevant documents; recalls that, according to Article 218 TFEU, Parliament ‘shall be immediately and fully informed at all stages of the procedure’;












13.


Takes note of the fact that, in 2021, the Council classified 1 327 legislative documents out of a total of 3 586 documents added to the register as ‘LIMITE’, and that 839 of those were subsequently made public on request (33); stresses that the excessive use of ‘LIMITE’ severely hampers and delays citizens’ access to documents; calls on the Council to revise its guidelines for classifying documents as ‘LIMITE’ with a view to ensuring proactive publication by default and only using ‘LIMITE’ for duly justified exceptional cases, and to reconsider this limitation regularly; regrets the fact that the Council presents available information on legislative documents in a register that is incomplete and not user-friendly;












14.


Expresses concern about the difficulties in accessing documents from some EU agencies, which prevent citizens and MEPs from effectively scrutinising these agencies; considers that disclosing meetings and interactions between EU agencies and third parties is necessary to ensure enhanced transparency;












15.


Notes Frontex’s establishment of a document register on a dedicated website, as well as the fact that, in the first year since its launch in March 2022, Frontex uploaded almost 2 000 documents to the register; regrets, however, that the register contains few documents related to the implementation of joint operations, which is the agency’s core activity; stresses that public access to Frontex documents is necessary for understanding the agency’s work and regrets that, in 2020, less than 5 % of public access requests for documents received full access, thus preventing effective public scrutiny; endorses the Ombudsman’s recommendation, following her own-initiative inquiry 4/2021/MHZ, that the agency should take a more proactive approach to transparency with a view to ensuring greater accountability for its operations;












16.


Expresses deep concern about the long delay in MEPs being granted access to the European Anti-Fraud Office (OLAF) report on the misconduct of several Frontex employees, including top management, in relation to its operational activities; is concerned about the fact that both the Frontex Management Board and OLAF failed to define ownership of the report and decision-making processes for its release following requests by MEPs and the Ombudsman; stresses that the decision not to make the OLAF report promptly available to all MEPs could contradict the need for democratic scrutiny over the agency; requests that the findings of the upcoming OLAF reports on Frontex be made publicly available and calls for MEPs to be given immediate access to these additional reports when they are finalised to ensure their scrutiny of the agency;












17.


Is deeply concerned that MEPs, former MEPs and staff of the European Parliament are alleged to have engaged in corruption, laundered money and participated in a criminal organisation in exchange for influence over Parliament’s decisions; recalls the importance of transparency and access to documents in preventing and fighting corruption and in ensuring the accountability of persons performing public duties; notes that a high level of transparency, including access to documents, makes it easier to track activities related to the decision-making process and may help in exposing criminal activities; recalls the recommendations set out in its resolutions of 15 December 2022 and 16 February 2023 and calls for their swift and full implementation;












18.


Welcomes the fact that the Special Committee on foreign interference in all democratic processes in the European Union, including disinformation, and the strengthening of integrity, transparency and accountability in the European Parliament (INGE 2) has been tasked with identifying potential flaws in Parliament’s rules and making proposals for reforms aimed at enhancing public trust in Parliament, while protecting the right of MEPs to freely carry out their mandates; calls for INGE 2’s final recommendations to be swiftly implemented; reiterates its call for the introduction of a mandatory requirement for all MEPs, accredited parliamentary assistants and staff members to make public all scheduled meetings with people external to Parliament when these meetings relate to a European Parliament report, initiative report or resolution;












19.


Calls for more transparency on national applications for EU funding, on communication between the Commission and the Member States and on the implementation of EU funding;












20.


Strongly regrets that a complete and public overview of EU funding to non-EU countries to facilitate cooperation on migration issues remains unavailable; calls on the Commission to ensure transparency, including by establishing a clear overview of all instruments within the EU budget used to finance cooperation with non-EU countries in the field of migration management, including information on the amount, purpose and source of funding, as well as detailed information on any other potential support measures provided by EU agencies, such as Frontex, in order to ensure that Parliament and the public can exercise scrutiny over the implementation of the EU budget; calls on the Commission to develop and implement a precise methodology for tracking the 10 % expenditure earmarked for migration and forced displacement to effectively ensure proper transparency and accountability regarding this expenditure, as required by Regulation (EU) 2021/947 (34);












21.


Commends the CJEU for broadcasting the delivery of its judgments and the reading of the Advocates General’s opinions live on its website, which allows citizens to follow hearings under the same conditions as if they were physically present; calls on the CJEU to also broadcast all hearings live;












22.


Stresses the importance of enhancing the transparency of decisions taken in infringement procedures; regrets the lack of transparency on letters of formal notice and infringement procedures against Member States; calls on the Commission to ensure compliance with Article 218 TFEU and to make relevant documents publicly available, such as documents sent to Member States, in connection with infringement procedures;






Legislative state of play










23.


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 (35); notes that given the enhanced transparency obligations laid down in the Treaties, any revision of Regulation (EC) No 1049/2001 should not lower the current level of transparency; highlights the crucial role of the relevant case-law in keeping the regulation up to date with current developments (36); highlights the need to codify the relevant case-law, further strengthen transparency and ensure accountability within the EU;












24.


Recalls that it is not a document’s medium or the fact that it has been registered that make it a document of a particular institution, but rather whether its content concerns a matter relating to policies, activities and decisions falling within that institution’s sphere of responsibility;






Recommendations










25.


Welcomes the Commission’s intention to increase transparency within the EU based on ‘transparency by default’; implores the Commission not to consider any proposal to revise Regulation (EC) No 1049/2001 that would lower the standards of transparency and access to documents; deplores the fact that negotiations have long been at a standstill and strongly urges the Council and the Commission to resume negotiations with the other institutions on the basis of the Commission’s proposals from 2008 and 2011; notes that any reform will need to address key issues such as the expansion of the scope of Regulation (EC) No 1049/2001 to all EU institutions, bodies, offices and agencies, the scope of the grounds for refusal to grant access to documents, the definition of a ‘document’, the public-interest test, transparency in the legislative process, and opposition to block exemptions, as well as to integrate CJEU and ECtHR case-law and take new technological developments into account; calls for the EU institutions to work constructively with the ultimate aim of ensuring that EU citizens can fully exercise their right to access documents and therefore perform their scrutiny role as regards EU institutions, bodies, offices and agencies;












26.


Regrets that Parliament has repeatedly refused to grant public access to documents, even after this practice was classified as maladministration by the Ombudsman, and calls for it to set a good example; calls for more transparency, including through better access to documents, in order to enable public scrutiny;












27.


Highlights, in the light of recent scandals, the risks of in camera meetings; deeply regrets the fact that the Commission, the Council and the EU agencies and bodies too often insist on in camera meetings without proper justification; considers that requests for in camera meetings should be properly evaluated; calls for the development of clear criteria and rules governing requests for in camera sessions in the EU institutions;












28.


Calls on the Commission to be more transparent as regards contracts with third parties; calls on the Commission to be more proactive in publishing as much information as possible about tendering processes compared to its current practices;












29.


Welcomes the Ombudsman’s practical recommendations on how to record text and instant messages sent or received by staff members in their professional capacity (37); recognises that work-related text and instant messages are ‘documents’ within the meaning of Regulation (EC) No 1049/2001 on public access to documents and invites the other EU institutions, bodies, offices and agencies to also recognise this, follow the Ombudsman’s recommendations accordingly and make this follow-up public; calls on the other EU institutions, bodies, offices and agencies to use a broad interpretation of the concept of ‘document’, which is particularly important in an information society and in the context of new forms of communication that are being used to discuss matters related to policies, activities and decisions;












30.


Welcomes the 2021 Ombudsman’s guidelines for the EU administration on policies and practices to give effect to the right of public access to documents with a view to improving internal procedures to make the process easy and open to citizens, including by providing the public with information on how to submit a request for public access to documents, on the procedure the institutions follow in dealing with requests and on the means of redress (38); calls for the EU institutions, bodies and agencies to use these guidelines as a basis for their document-access procedures;












31.


Encourages the EU institutions, bodies, offices and agencies to put advice in place on their respective websites on what information a request for documents under Regulation (EC) No 1049/2001 should contain in order to streamline the processing of requests;












32.


Highlights that transparency and full access to the documents held by the institutions must be the rule and that exceptions to that rule must be strictly interpreted, taking into account the overriding public interest in disclosure; calls for all EU institutions, bodies, offices and agencies to publish documents proactively on their websites and make searching for these documents easy for citizens in order to allow for public scrutiny; underlines that a lack of knowledge on whether documents actually exists may impede citizens in exercising their right to request access; stresses that ensuring that citizens are able to understand, follow in detail and participate in the legislative process are a legal requirement under the Treaties and the Charter, and are a basic requirement for democratic scrutiny and democracy as a whole; underlines that, according to the CJEU (39), citizens must also be able to follow in detail the decision-making processes of the preparatory bodies involved in legislative procedures and must have access to all relevant information; calls for the EU institutions, bodies and agencies to have a policy of ‘transparency by design’ and publish documents linked to legislative files proactively, including documents that form part of or are related to legislative procedures, within a reasonable time frame and in a user-friendly and accessible way, as well as to publish complaints in response to refusals to grant access; believes that trilogue documents, such as agendas, summaries of outcomes, minutes and general approaches in the Council, are related to legislative procedures and should be treated as legislative documents; calls for the EU institutions to comply fully with the judgment of the CJEU in Case T-540/15 (40) on access to trilogue documents; urges the EU institutions, in particular the Council, to improve their rules and procedures on legislative transparency, including the accessibility and classification of legislative documents; reiterates its call on Frontex to immediately end its practice of demanding that applicants cover the costs of external lawyers in court cases related to access-to-information requests (41);












33.


Welcomes the new transparency steps taken by the Council in 2020, in line with the proposals made by the Ombudsman in her inquiries into legislative transparency in the Council and the transparency of trilogues (42), to expand the proactive disclosure of legislative documents, including progress reports on negotiations on draft laws and Council mandates for negotiations with the European Parliament, and to ensure the limited application of the ‘LIMITE’ label to such documents, including restricting both the number of documents under this label and the duration of the validity of this label; regrets that there are still differences between presidencies as regards their practices on proactively publishing documents; insists that the systematic publication of the mandate for starting trilogue negotiations and of the Council’s final position endorsing the outcome of negotiations is the bare minimum, and that in order to mirror Parliament’s transparency in legislative negotiations, the Council should also systematically record the identities of the Member States when they express their positions in Council; calls for the establishment of permanent binding guidelines for all presidencies, on the basis of the Finnish Presidency’s initiative;












34.


Calls on the Council to proactively publish its contacts with lobbyists; calls on the Council to reopen the dialogue between the Member States and the General Secretariat on measures to improve the consistency, standardisation and clarity of document management across the Council; stresses the need for the Council to publish documents in a timely manner;












35.


Welcomes the Commission’s intention to draft new internal guidelines on transparency and access to documents and invites other institutions to follow this initiative; encourages the Commission to make sure that the guidelines entail a policy of ‘transparency by design’ and reflect the relevant case-law and the Ombudsman’s recommendations from recent years (43);












36.


Calls for the Commission and the other EU institutions, agencies and bodies to be more proactive in publishing documents and statistics regarding how they handle document access requests, as such information would help with assessing the institutions’ proactive approach to document access;












37.


Reiterates its urgent call for the EU institutions to speed up their work on establishing a dedicated and user-friendly joint database on the state of play of legislative files (Joint Legislative Database) as agreed on in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (44) to ensure greater transparency; stresses that documents made public should be published in a format that allows them to be searchable and machine-readable;












38.


Calls for all EU institutions to ensure that all official documents are systematically provided for in an open, user-friendly and machine-readable format, which is particularly essential for numerical and financial data, and to ensure the same format for documents published in the past; calls for Rule 122(3) of its Rules of Procedure to be amended to ensure that data is provided in an open, machine-readable format; invites all EU institutions to consider increasing the number and enlarging the categories of documents they directly make available in their public registers and to improve the findability and accessibility of the documents on their internet pages; is of the opinion that the categories of documents to be made directly accessible through Parliament’s public register should include preparatory legislative documents regardless of whether they were drafted by Parliament alone or together with other institutions, such as political and technical trilogue documents, including all versions of the joint multi-column document referred to in the Code of Conduct for negotiating in the context of the ordinary legislative procedure, subject to the exceptions laid down in Regulation (EC) No 1049/2001 and the case-law of the General Court and the Court of Justice;












39.


Considers that the current way of finding MEPs’ voting histories – via PDF files covering hundreds of votes on Parliament’s website – is not user-friendly and does not contribute to transparency; calls for Parliament’s Bureau to develop a user-friendly system in which, for each roll-call vote, the text voted on and the voting results for each group and MEP are visible; calls for roll-call vote results, MEP attendance data and texts voted on to be made available in machine-readable formats;












40.


Recalls that an application for access to a document must be handled promptly (45); notes with great concern that the Ombudsman receives many citizen complaints about extreme delays in gaining access to requested documents; supports the Ombudsman’s views that access delayed is effectively access denied and that administrative processes should be streamlined to ensure that citizens receive access to documents in a timely manner; calls for the EU institutions, bodies and agencies to ensure compliance with the deadlines, for more data on their compliance with the deadlines and for explanations to be provided to applicants stating the reasons for non-compliance with the deadlines; calls further on the Commission to take measures to enforce deadline compliance by other EU institutions; stresses that proactively publishing documents in the register is the best solution to lower the number of access-to-document requests and to avoid delays;












41.


Emphasises that the pandemic and the changes in the EU institutions’ working procedures resulted in a slowdown in the processing of requests for access to documents; stresses that it is essential for the institutions to put in place mechanisms to ensure that the highest level of transparency and access to documents are maintained, even in the event of a crisis;












42.


Notes with concern that at present, citizens can only challenge the refusal of an access-to-document request or the lack of a timely response when deadlines are not met by making a complaint to the Ombudsman, whose recommendations are unfortunately not legally binding, or by bringing court proceedings against the institution in the CJEU, which entails an extremely lengthy and costly process with uncertain outcomes, creating an unreasonable burden that deters citizens who wish to challenge a decision to refuse (partial) access; emphasises that this means that, in practice, there is no effective remedy to a negative decision on a request for access to documents; calls for the EU institutions to nonetheless fully and swiftly follow up on decisions and recommendations by the Ombudsman; calls for the EU institutions, bodies and agencies to adopt swifter, more accessible and further simplified procedures for handling complaints about refusals to grant access and measures to ensure that citizens can challenge decisions when needed; recommends, in this context, appointing senior officials or independent experts with the capacity to review, without undue delay, appeals concerning access-to-document requests; highlights that charging civil society very high legal fees has a chilling effect on its access to justice in the field of access to documents, which is a fundamental right laid down in Article 42 of the Charter, and undermines civil society’s right to an effective remedy under Article 47 of the Charter;
°
° °












43.


Instructs its President to forward this resolution to the Council and the Commission.






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

(2)  
            OJ C 168 E, 14.6.2013, p. 159.

(3)  
            OJ C 337, 20.9.2018, p. 120.

(4)  
            OJ C 411, 27.11.2020, p. 149.

(5)  
            OJ L 305, 26.11.2019, p. 17.

(6)  
            OJ C 465, 17.11.2021, p. 54.

(7)  
            OJ C 117, 11.3.2022, p. 159.

(8)  
            OJ C 184, 5.5.2022, p. 99.

(9)  
            OJ C 342, 6.9.2022, p. 58.

(10)  
            OJ L 45, 14.2.2023, p. 13.

(11)  
            OJ C 177, 17.5.2023, p. 109.

(12)  Texts adopted, P9_TA(2023)0054.

(13)  Judgment of 25 January 2023, De Capitani v Council, T-163/21, ECLI:EU:T:2023:15.

(14)  Judgment of 27 November 2019, Luisa Izuzquiza and Arne Semsrott v European Border and Coast Guard Agency, T-31/18, ECLI:EU:T:2019:815.

(15)  
            OJ L 264, 25.9.2006, p. 13.

(16)  Article 10(3) TEU, read in the light of the thirteenth recital of the preamble thereto and Article 1(2) and Article 9 thereof.

(17)  Article 15 TFEU.

(18)  Judgment of the CJEU of 1 July 2008, Kingdom of Sweden and Maurizio Turco v Council of the European Union, C-39/05 P and C-52/05, ECLI:EU:C:2008:374; and judgment of the CJEU of 17 October 2013, Council of the European Union v Access Info Europe, C-280/11P, ECLI:EU:C:2013:671.

(19)  
            De Capitani v Council judgment.

(20)  European Ombudsman, ‘
            Annual Report 2021
            ’, 18 May 2022, p. 31.

(21)  European Ombudsman, ‘
            Decision on the Council of the European Union’s refusal to give full public access to documents related to negotiations on the draft “Digital Markets Act”
            ’, 27 June 2022.

(22)  European Ombudsman, ‘
            Annual Report 2021
            ’, 18 May 2022.

(23)  European Ombudsman, ‘
            Decision on the Council of the European Union’s refusal to give full public access to documents related to negotiations on the draft “Digital Markets Act”
            ’, 27 June 2022.

(24)  European Ombudsman, ‘
            Decision on issues related to how the European Border and Coast Guard Agency (Frontex) communicates with citizens in relation to its access to documents portal
            ’, 15 December 2022.

(25)  European Parliament resolution of 21 October 2021 with observations forming an integral part of the decision on discharge in respect of the implementation of the budget of the European Border and Coast Guard Agency for the financial year 2019 (OJ L 47, 25.2.2022, p. 11).

(26)  European Ombudsman, ‘
            Ombudsman asks Commission to deal urgently with systemic delays in processing public access to documents requests
            ’, 28 March 2023.

(27)  Judgment of the CJEU of 22 March 2018, Emilio De Capitani v European Parliament, T-540/15, ECLI:EU:T:2018:167; judgment of the CJEU of 1 July 2008, Kingdom of Sweden and Maurizio Turco v Council of the European Union, C-39/05 P and C-52/05, ECLI:EU:C:2008:374.

(28)  
            De Capitani v Council judgment.

(29)  
            De Capitani v Council judgment.

(30)  Becker, M., ‘
            The European Commission Deletes Mass Amounts of Emails and Doesn’t Archive Chats
            ’, Der Spiegel, 12 November 2021.

(31)  Judgment of the CJEU of 21 April 2021, Laurent Pech v Council of the European Union, T-252/19, ECLI:EU:T:2021:203.

(32)  European Ombudsman, ‘
            Decision on the European Commission’s refusal of public access to text messages exchanged between the Commission President and the CEO of a pharmaceutical company on the purchase of a COVID 19 vaccine
            ’
            16 September 2021.

(33)  Draft 20th annual report of the Council on the implementation of 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.

(34)  Regulation (EU) 2021/947 of the European Parliament and of the Council of 9 June 2021 establishing the Neighbourhood, Development and International Cooperation Instrument – Global Europe, amending and repealing Decision No 466/2014/EU of the European Parliament and of the Council and repealing Regulation (EU) 2017/1601 of the European Parliament and of the Council and Council Regulation (EC, Euratom) No 480/2009 (OJ L 209, 14.6.2021, p. 1).

(35)  Article 15(3) TFEU.

(36)  See, for example, the judgment of the CJEU of 18 July 2017, European Commission v Patrick Breyer, T-213/15, ECLI:EU:C:2017:563; the judgment of the CJEU of 1 September 2021, Andrea Homoki v European Commission, T-517/19, ECLI:EU:T:2021:529; and the judgment of the CJEU of 21 April 2021, Laurent Pech v Council of the European Union, T-252/19, ECLI:EU:T:2021:203.

(37)  European Ombudsman, ‘
            Closing note on the strategic initiative on how EU institutions, bodies, offices and agencies record text and instant messages sent/received by staff members in their professional capacity
            ’, 13 July 2022.

(38)  European Ombudsman, ‘
            A short guide for the EU administration on policies and practices to give effect to the right of public access to documents
            ’, 27 October 2021.

(39)  
            De Capitani v Council judgment.

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

(41)  Decision (EU, Euratom) 2021/1613 of the European Parliament of 28 April 2021 on discharge in respect of the implementation of the budget of the European Border and Coast Guard Agency for the financial year 2019 (OJ L 340, 24.9.2021, p. 324).

(42)  European Ombudsman, ‘
            Ombudsman welcomes steps to make EU law making more accessible to the public
            ’, 16 July 2020.

(43)  See, for example, the European Ombudsman’s decision in Case 2142/2018/EWM on the European Commission’s refusal to grant access to Member State positions on a guidance document concerning the risk assessment of pesticides on bees; the judgment of the CJEU of 14 September 2022, Pollinis France v European Commission, T-371/20 and T-554/20, ECLI:EU:T:2022:556; and the judgment of the CJEU of 22 March 2018, Emilio De Capitani v European Parliament, T-540/15, ECLI:EU:T:2018:167.

(44)  Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making (OJ L 123, 12.5.2016, p. 1).

(45)  Regulation (EC) No 1049/2001, Article 7.


ELI: http://data.europa.eu/eli/C/2024/4014/oj
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