Emily O’Reilly, the EU Ombudsman, accused the Council of the EU of disregarding the case law of the European Court of Justice. This is because the EU member states’ legislative body refuses to give journalists access to information about national positions during negotiations on upcoming draft laws. The Ombudsman stated this behaviour constitutes “maladministration”.

This was the finding of an investigation launched by O’Reilly following a complaint by Investigate Europe (IE).  

IE had requested all documents from the member states’ negotiations on the draft Digital Markets Act from the Council Secretariat in March 2021, explicitly asking for the “working documents” in which the demands and comments of the individual member states are mentioned. In their reply, the Council administration officials listed 26 relevant documents but they refused access. Their reasoning was that, in the “view of the member states, this would be detrimental to the ongoing negotiations at this point in time”. 

IE did not accept this claim. “[It is] one of the basic tasks of journalists in a democratic society to report on ongoing legislative processes and to present the arguments of the various legislative actors to the citizens,” IE wrote in a formal objection. “[However, this task] cannot be fulfilled if we do not have access to the relevant information about the process and the respective documents.”  Of course, reporting on the position of individual governments could lead to reactions and thus influence the negotiation process. “But citizens’ influence on legislation is the basic idea of democracy,” IE explained.

But most of the responsible diplomats do not want to be shown their cards when they work as legislators. After five months of delays, the Council Secretariat once again refused access to all documents showing the positions of individual governments. 

This practice has long been controversial, however, and the European Court of Justice has already upheld several actions to lift the secrecy. To justify it anyway, Council officials argued this time that information about governments’ positions “could lead to unprecedented lobbying by systemic platform companies” — as if this isn’t happening all the time anyway.  

In order to be able to report on the negotiations on the Digital Markets Act, IE reporters then worked with informants from various countries who were willing to provide the necessary documents. In this way, they were able to uncover that the governments of Luxembourg and Ireland adopted the lobbying positions of the major tech platforms companies — a fact that the diplomatic lawmakers probably did not want their citizens to know. It is precisely in these countries that Amazon, Facebook and Google maintain their European headquarters.

In parallel, IE also lodged a complaint with the Ombudsman. In the course of her subsequent investigation, O’Reilly inspected the blocked documents and found that they were “clearly legislative documents to which the highest standards of transparency must apply”. In line with “established case law, the preliminary nature of the deliberations in Council working groups on a Commission proposal” in no way justifies the Council’s claimed exception to this requirement, she concludes. Rather, a legislative proposal is “by its very nature intended to be discussed and debated, and public opinion is perfectly capable of understanding that the author of a proposal may subsequently change its content”, O’Reilly quotes a relevant ECJ ruling in her now-published report. 

That is why “the Council’s refusal to give the public full access to member states’ comments on the draft Digital Markets Bill is an instance of maladministration”. She “recommends that the Council fully disclose the requested documents”, and has asked the Council to submit a “detailed opinion” by May 30.

In parts, the Council has already complied with this decision. In late November 2021, four weeks after the national officials had decided on their version of the law, officials finally sent the requested documents, knowing well that this was far too late for reporting. 

Only document number 9039/21 was not included, but was kindly made available to IE from another source. In it, the governments of Belgium, Denmark, Estonia, Finland, the Netherlands and Sweden jointly state that they support IE’s request for access to the file and explicitly “not concurr” with the refusal requested by the other EU governments.

This will give new impetus to the debate on ending secrecy in the Council. Even the German government has recently demanded that the Council’s work “must become more transparent”.