Eu Decision-Making Becomes A Fiddling To A Greater Extent Than Open: Access To Background Documents Drafted Yesteryear Consultants

Steve Peers

‘[The plans were] on display inward the bottom of a locked filing cabinet stuck inward a disused toilet alongside a sign on the door saying, “Beware of the Leopard”!’

Arthur Dent, The Hitch-Hiker’s Guide to the Galaxy

Much of what the European Union does is controversial. Think, for instance, of the gratis merchandise negotiations alongside the USA (TTIP), the regulation of many items from vacuum cleaners to genetically modified food, too the supervision (or sometimes control) of Member States’ taxation too spending decisions. The noun content of the decisions the European Union makes on these issues volition e'er disappoint someone, but inward add-on to that, in that place has long been a concern that the European Union decision-making arrangement is non sufficiently transparent. This has undoubtedly contributed to the wide feeling that the European Union lacks legitimacy.

Back inward 2001, the European Union tried to address this past times adopting a Regulation on access to documents drawn upwardly by, or held by, the Commission, Council too the European Parliament. Attempts to ameliorate this legislation lead maintain failed then far, then its application inward do depends on the extensive illustration police clitoris of the European Union courts.

Some of this illustration police clitoris is excellent, too roughly is (with corking respect) rather problematic. Fortunately, today’s of import judgment of the EU’s General Court inward the Mastercard illustration falls inside the one-time category. The Court ruled inward favour of access to background documents for European Union decision-making drawn upwardly past times consultants, too then has significantly increased access to data on European Union decision-making process.

Judgment

Mastercard applied to the Commission for roughly of the background documents drawn upwardly past times a consultant (EIM), which had been supplied to the Commission past times EIM equally business office of the procedure of drafting a study on the touching of the costs too benefits for retailers of accepting dissimilar payment methods. The Commission refused access to the documents, on the grounds that it had non yet made a determination on the issues concerned (the ‘decision-making’ exception), too that the documents contained data on the commercial interests of the consultant.  

The General Court rejected both of the Commission’s arguments. On the starting fourth dimension point, the documents inward query did non relate straight to whatever specific Commission decision-making procedure equally regards the application of European Union contest law, but rather aimed to render the Commission alongside to a greater extent than full general data to inform it on the economical issues. Also, the Commission had non relied on this exception when initially refusing access to the documents. Furthermore, it didn’t affair for the role of the access to documents rules that the documents were interim, too the Commission had inward whatever lawsuit shared most of the documents concerned alongside stakeholders.

On the minute indicate (commercial interests of the consultant), the Court reiterated prior illustration police clitoris that the exception did non apply to whatever data virtually a business, but alone to sensitive data concerning issues such equally concern strategy, sales figures et al. Applying that illustration police clitoris to the facts of this case, the Court did non bring the Commission’s declaration that revealing the ‘trial too error’ inward the draft documents produced past times the consultant  would undermine its commercial reputation or reveal its hush-hush methodology to its competitors.

So the Commission fully lost the case, too then the documents lead maintain to endure released – although the Commission has ii months to appeal to the Court of Justice if it wishes to.

Comments

While much of the illustration police clitoris on access to documents concerns the Commission, which has most of the administrative too executive ability at European Union bird (except equally regards aspects of external relations), this illustration highlights an of import characteristic of the Commission’s work: its reliance upon third-party expertise. The facts of this illustration are the norm non the exception: many Commission touching assessments too reports rely upon ane to a greater extent than reports drawn upwardly past times exterior consultants. The European Parliament sometimes uses them too.

So anyone seeking to examine the Commission’s decision-making or the evolution of European Union policies to a greater extent than broadly – whether they are journalists, researchers, NGOs or businesses similar Mastercard – needs access to the consultant reports which the Commission relies upon to depict upwardly its terminal proposals, reports too touching assessments. They normally comprise rattling useful data too analysis which plays an of import role inward the analysis of the Commission’s terminal official documents which are based upon them.

Usually, the Commission publishes the consultants’ reports which it bases its documents upon. So what touching volition today’s judgment have? First of all, it mightiness consequence inward world access to the consultants’ reports at an before date. Secondly, too to a greater extent than importantly, it volition broaden access to the other background documents drawn upwardly past times consultants too made available to the Commission.

In fact, I lead maintain been involved inward the touching assessment procedure myself several times, equally an adviser to the principal consultancy drawing upwardly a study for the Commission.  I can’t speak over whatever of the details due to a confidentiality agreement, although I should clarify that I had no involvement alongside the study which was the plain of study of the Mastercard case.

However, suffice it to say that it is rattling mutual for consultancies to depict upwardly interim reports too other background documents which mightiness non endure attached to the principal touching assessment report. Of course, the consultancy, too advisers such equally myself, also depict upwardly drafts too working documents which are not disclosed to the Commission – too this judgment volition non liberalise access to those. This is reasonable, for afterward all the Commission’s decision-making procedure volition non lead maintain been influenced past times documents which it hasn’t seen.  I’m a long-standing critic of the EU’s access to documents rules, too then I could alone imagine the marker of Schadenfreude inward the Commission too Council if it turned out that I am straight plain of study to the European Union rules on access to documents. But that’s non going to happen.

What volition the touching of this judgment endure inward practice? In principle, the judgment suggests that all background consultancy reports sent to the Commission ought to endure released, unless there’s roughly other solid soil for refusal non relevant to the Mastercard illustration (see the tidings of the external relations exception below). The Court’s finding that the Commission’s decision-making wouldn’t endure undermined past times free is relevant to all other cases. So is the Court’s ruling that the commercial involvement of the consultancy wasn’t damaged. It’s interesting to banknote that the consultancy didn’t intervene inward the proceedings, which it for sure would lead maintain done if it were worried virtually beingness damaged past times the free of this document. With corking honour to the expertise of EIM too other consultancies, their methodology for touching assessment is hardly the same kind of hush-hush equally Colonel Sanders' recipe for Kentucky Fried Chicken. 

The interim reports too other background documents drawn upwardly past times consultants may good comprise data that could shed farther low-cal on the analysis inward the terminal report. If in that place is a goodness argue non to rely upon the interim reports or background documents inward roughly or all respect, the Commission and/or the consultant tin only explicate this inward its terminal document.

In principle, this judgment is relevant to background consultancy documents inward whatever plain of European Union law. So businesses, NGOs, journalists too researchers could all rely upon it to gain access to documents which mightiness endure useful, whatever their plain of involvement may be. In particular, it is of import that inward this illustration the Court distinguished the line of illustration police clitoris (relevant to contest too nation aid, for instance) allowing the Commission to turn down inward regulation access to all documents relating to private decisions.

In the plain of external relations, the touching of the judgment volition endure express somewhat past times the possibility to turn down access to whatever details of the EU’s negotiating mandates for treaties similar the TTIP, on the solid soil of the ‘external relations’ exception inward the Regulation. But it should endure possible to redact the negotiating mandate from the reports too free the residue of the text (on this point, run across farther the tidings of roughly other recent transparency judgment here).

This increased access to documents inward plough raises ii of import questions of accessibility too access. First of all, volition the Commission brand available these background documents, too if so, when?  It’s clear from the facts of this illustration that the Commission did free roughly of these documents to ‘stakeholders’, but non to the full general public. Surely it’s often the illustration that the Commission doesn’t consult every entity that mightiness desire access to the documents inward question.

Secondly, how volition anyone (besides the Commission, the consultancy, too whatever special grouping of consultees) know that these documents exist? Arthur Dent didn’t know virtually the documents that concerned the devastation of his house; too this was alone the precursor to the devastation of the planet solid soil without sufficient consultation. There’s an uncomfortable analogy in that place for climate alter activists.

Unfortunately, the Commission seems to lead maintain been inspired past times this fictional dystopia when designing its access to documents system. When the Eur-lex system of access to European Union police clitoris was latterly redesigned, the Commission removed the direct link to its access to documents register. The Eur-lex staff fifty-fifty denied that they’d done this.

You tin however observe the register if you lot Google it – or exactly click here. But its removal from the Eur-lex page mightiness hateful that roughly people don’t fifty-fifty observe it. And if they do observe it, they in all probability won’t observe the background documents from consultants listed inward it, since the reach of coverage of the register is rattling narrow. The Commission doesn’t appear to lead maintain grasped that Douglas Adams was engaging inward humorous mockery – non suggesting a template for the Commission’s government for access to documents.

Barnard & Peers: chapter 3, chapter 5, chapter 8

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