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Focus on Regulation

European Commission criticised for refusal to disclose documents on UK opt-out from Charter of Fundamental Rights

The European Ombudsman, responsible for investigating complaints about maladministration in the institutions and bodies of the EU, has continued his strong criticism of the European Commission’s refusal to disclose a handful of documents concerning its view of the UK opt-out from the EU Charter of Fundamental Rights.  The refusal by the Commission to provide access to the documents represents the culmination of a five year attempt by the NGO, the European Citizen Action Service (ECAS), to obtain access to material that it considers to be “undoubtedly of public interest” in understanding why European citizens “will not have the same fundamental rights in the UK as they have in other Member States.”

In 2007, ECAS made an initial application under European legislation for public access to five documents.  Citing exceptions concerning the protection of legal advice and the protection of the decision making process, the Commission refused to disclose three of the five documents and provided only partial access to two.  ECAS’ complaint to the Ombudsman following this refusal alleged that the Commission had wrongly refused to give full access to the documents concerned and failed to respect a statutory deadline for replying to its confirmatory application.

The documents in dispute in relation to the UK opt-out from the EU Charter of Fundamental Rights were prepared by the Commission’s services in the run up to the signing of the Lisbon Treaty in 2007.  Proclaimed by the European Parliament, the Council of Ministers and the European Commission in 2000, the Charter sets out a range of rights and freedoms available to European citizens, and aims to strengthen the protection of these fundamental rights against a backdrop of swift social, scientific and technological development.  Due to concerns that the Charter would result in the extension of the powers of the European Court of Justice over the UK once it became legally binding, the UK negotiated an opt-out to confirm that the Charter does not extend the ability of the ECJ to find that UK laws are inconsistent with fundamental rights nor create “justiciable rights applicable to the United Kingdom”.

In his final decision issued in December 2012, the Ombudsman, P. Nikiforos Diamandouros, highlighted concerns that the Commission had:

• “breached the Charter of Fundamental Rights by wrongfully refusing to give public access to [the] documents”;

• “failed to give valid reasons for its refusal to give public access”;

• “by categorising parts of the documents as irrelevant…wrongly disregarded the complainant’s request to obtain access to the full documents and thereby evaded the obligation to give valid reasons for refusing full access”; and

• Committed a “serious instance of maladministration” “in view of the importance of the documents concerned with the rights of EU citizens, and the fact that the Commission failed to engage constructively with the detailed analysis put forward by the Ombudsman”.

Despite these strong words, the Commission has still only given partial access to the documents in question.  In a recent press release, the Ombudsman reinforced the critical remarks in his final decision, stating that:

“Public access to documents concerning how EU law is adopted is key to winning the trust of European citizens. I therefore strongly regret the Commission’s refusal to give the public appropriate access to documents concerning how one of the most important EU laws, namely, the Charter of Fundamental Rights, was adopted.”