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Challenging the EU Institutions on Transparency – What is the Role of Academics?

The Academy of Finland-funded research project “Transparency in the EU: from reaction to manifesto” aims at breaking down the practices assigned to transparency in the EU, laying bare shortcomings and seeking solutions. TrUE project researchers Päivi Leino-Sandberg and Maarten Hillebrandt provide some examples of the types of researcher-institution interactions to which the project has led, and the lessons that can be drawn from them.

Credit: EU Law Live

In 2017 we started a research project, funded by the Academy of Finland, aimed at breaking down the practices assigned to transparency in the EU. Our research plan stated the ambition to ‘map, and where relevant, try to influence institutional practices’ by seeking access to documents needed for our substantive research, and when necessary, initiating administrative and judicial proceedings. Of interest was not only the substance of the document, but also the practice of handling these requests and the normative framework that the institution relies on.

EU legislation establishes no particular rules for access to documents for research purposes

For reasons of research ethics, we established that we would only request documents that are necessary from a research perspective so as not to burden the institutions excessively. We would not encourage leaks. We noted the particular challenge caused by documents which are in the public domain but have not been lawfully released by the EU institutions; a matter that we expected the Court of Justice to clarify.

Unlike national legislation in various EU Member States, EU legislation establishes no particular rules for access to documents for research purposes. For this reason, requests are made by individual researchers in their capacity as ordinary EU citizens. We are by no means the first researchers engaging in access to documents requests (see here, here and here). However, in this project the requests have been used exceptionally systematically to count as an empirical research method in its own right. Below, we provide some examples of the types of researcher-institution interactions to which the project has led, and the lessons that can be drawn from them.

Legislative transparency

Leino-Sandberg’s part of the project looks at EU law-making. On 21 January 2021 the Court of Justice delivered a judgment in a case that had its origins in an article on trilogue transparency, co-authored with Deirdre Curtin. The case, which was also reported on by Anastasia Karatzia on EU Law Live, concerned an access request made to the European Parliament in 2017 relating to the European Parliament’s decision in another access case, brought by Emilio De Capitani. The decision was believed to explain why the Parliament – which has generally been vocal about trilogue transparency – refused to disclose such documents. While the Parliament refused to disclose its decision, De Capitani had placed it on his personal webpage, albeit in an amended form.

This request has led to four years of litigation. While the Court of Justice ruled in our favour, it referred the matter back to the General Court for final ruling.

Legal advice

Another area of specific research interest for Leino-Sandberg has been the use of legal advice in EU policy-making. Her forthcoming monograph (The Politics of Legal Expertise in EU Policy Making, Cambridge University Press, 2021) engages in qualitative analysis of interviews and other empirical material, such as policy documents, legal opinions, pleadings of the institutions in court cases and their replies to access to documents requests.

A specific feature in this field is that most legal advice is not disclosed by the institutions themselves. Instead, when politically contested, it often appears instead in the Financial Times or Politico. A question of research ethics emerges again: Can a newspaper article be used as a source, when there is no way to confirm whether the opinion has been appropriately quoted? Should we only use information that is lawfully in the public domain, and how does one verify that?

Most legal advice is not disclosed by the institutions themselves

With this in mind, Leino-Sandberg has made various requests for legal opinions needed for her research. Most requests have received a positive reply, sometimes after a confirmatory application. Together with project colleague Daniel Wyatt, she also complained to the European Ombudsman.

In particular, the complaint concerning the European Commission’s refusal to grant access to legal opinions relating to the establishment of the European Public Prosecutor’s Office (EPPO) is of interest. Initially, we were informed by the Commission that there are no written documents relevant to the request. Some time later, however, the Commission identified ten relevant documents. Are its registers really up to the standard, if locating documents is indeed so difficult?

The Commission subsequently granted full access to one of the documents and partial access to some others. Following our complaint, the Ombudsman opened an inquiry and her inquiry team carried out an inspection of the Commission’s file. She concluded that the public interest in the establishment of the EPPO would be properly served by greater transparency and the further disclosure she recommended. Since the Commission continued to withhold the relevant documents, three years after the initial access to documents request, the Ombudsman confirmed her finding of maladministration. However, she did not inquire further into the Commission’s document management system, which we had argued is inadequate to facilitate a swift handling of requests for public access.

Court pleadings

Liisa Leppävirta’s PhD project concerns the Europeanisation of administrative law, with a focus on access to documents legislation. She has requested access to around 40 submissions made by the European Commission and Member States in court proceedings, primarily from the Commission, in access to documents cases before the Court of Justice. The Commission has insisted that Ms Leppävirta can only make a request for pleadings by one Member State at a time. Otherwise, the Commission argues, the request would be too broad and require a disproportionate amount of resources to be taken up.

Around 40 submissions made by the Commission and Member States have been requested as part of PhD research into the Europeanisation of administrative law

As a result, Ms Leppävirta has needed to indicate which Member State’s documents she would like to have processed next, following which the Commission has then initiated the consultation process under Article 4(5) of the Regulation with the relevant Member State. While the process has been considerably slowed down, she eventually received all requested submissions, with the exception of one where the Commission referred to the case still being pending.

Commission confirmatory application decisions

Sometimes an empirical analysis of the institutions’ discharge of their duties under access to documents law requires systematic access requests to institutions’ decisions, to enable statistical extrapolation, inter-institutional comparison, and the systematic analysis of legal practices that are only summarily reported in the institutions’ annual reports.

Based on his data on the Council of the EU’s practice in this area, Hillebrandt decided to request similar data from the Commission via the AsktheEU portal, where the entire exchange can be read back. In five separate requests, Hillebrandt applied for a total of 1,269 decisions to confirmatory applications issued between 2014 and 2018. This is of course a large amount, but these are administrative legal acts that are particularly mundane and should be uncontroversial. Such decisions are routinely and proactively disclosed by the Council of the EU in its register and contain very little, quickly identifiable sensitive information (typically personal details of the applicant such as their name and address).

The Commission refused to accept the request, assessing the administrative burden of these requests to amount to 3,800 days (10.4 years, based on a 7-day work week), and suggested a ‘friendly solution’ of considering ten documents instead. Hillebrandt countered with an offer to reduce the number of requested documents to 288 confirmatory application decisions from 2018. The Commission again rejected this counteroffer, deciding to grant access to 30 of the requested documents.

The institutions frequently do not live up to Treaty standards

The Commission exceeded the maximum handling time to which it is legally entitled, but insisted that the time spent on searching for a fair solution reduced its time for handling the request itself. As a result, 4.5 months had passed by the time Hillebrandt had his confirmatory application rejected. A complaint to the Ombudsman concerning this unsatisfactory situation was split up into two separate investigations, one pertaining to the Commission’s handling of Hillebrandt’s access requests, and one concerning the Commission’s failure to proactively disclose its decisions in confirmatory applications.

The two Ombudsman decisions are now imminent. Early communication suggests that Hillebrandt risks losing his entitlement to receive wider access to documents, due to the fact that he has made other applications while the Ombudsman investigation was ongoing, even when these requests fell outside of the scope of the complaint. As a result, it appears that the Commission’s restrictive application of access rights, breach of legally established deadlines and inconsistent application of interpretive issues, but above all, lack of responsiveness, will go uncorrected.

What have we learned?

Empirical research reveals that the institutions frequently do not live up to Treaty standards. Writing confirmatory applications is cumbersome, as is keeping track of procedures and deadlines, which the institutions do not follow rigorously. Request handling deadlines are frequently extended for no apparent reason. The registers of institutions appear incomplete and their document management systems do not make responding to complaints easy. From the perspective of time invested in either obtaining the desired research data or obtaining a legal interpretation that ensures equitable public access to documents on future occasions, the Ombudsman route often does not succeed at resolving problems. As regards litigation, so far we only have experience from one court case. In that context, the question of costs is a serious consideration. Moreover, researchers can seldom wait for three or four years to gain access to a document needed for research purposes.

The project was born out of the acknowledgement that we as researchers are not passive bystanders but are instead informed observers with a normative perspective that we acknowledge openly in our research activities, each giving this insight a place in our research practice in our own way.

The EU should do a better job at revealing and justifying its decision-making

Yet even filing access requests for the purpose of obtaining research data, a process central to a more traditional conception of research activity, can be insightful. When assessing access to documents requests, the officials working in the EU institutions make key democratic choices. The arguments used by the institutions to limit transparency rights often reflect implicit assumptions, such as the understanding that the efficiency of the institution’s internal work must be traded off against democratic principles. Instead of policies driven by bureaucratic logic, we believe that a more political debate is needed on the way in which the exercise of democratic rights can be effectively exhausted.

We think that the EU should do a better job at revealing and justifying its decision-making, in the first place by complying with the letter and the spirit of the law. As academics, we seek to contribute to that transformation.

Päivi Leino-Sandberg is a Professor of Transnational European Law at the University of Helsinki and Deputy Director of the Erik Castrén Institute of International Law and Human Rights.

Maarten Hillebrandt is a Postdoctoral researcher at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki.

This article appeared earlier on EU Law Live as part of a special issue on EU transparency law. A project webinar was recently held on the subject and can be watched here until 30 April 2021.