European Ombudsman Supports Secrecy of TTIP Negotiations
European Ombudsman Supports Secrecy of TTIP Negotiations

We were not expecting it, but this surprising move compounds suspicions that the European Union has now shown its true face, this time via the European Ombudsman, who has once again demonstrated that corporate interests take priority ahead of the right of European citizens to information and transparency.

In the case of claim 1777/2014/PHP against the European Commission regarding access to 20 original documents pertaining to the Transatlantic Trade and Investment Partnership (TTIP) between USA and the EU, filed by Gregorio Abascal via his blog Economía Ciudadana, Emily O’Reilly, the European Ombudsman, has found no maladministration by the European Commission and has closed the case.

The decision consolidates the position of the European Commission and Council regarding the absolute priority of maintaining the secrecy of TTIP documents, trampling on the citizens’ right to information and disregarding the European Court of Justice, the only body legitimised to interpret European Union legislation and the interpretation of Regulation 1049/2001 made in Judgment C‐ 350/12 P.

The European Ombudsman, basing her decision on the interpretation of Regulation 1049/2001 made by the European Commission on the basis of Judgment T-301/10 of 19 March 2013 of the General Court – an agency inferior in rank with regard to the interpretation of European legislation – and affirming that two and a half lines and three footnotes from Judgment C‐ 350/12 P, which the Ombudsman classifies as solid and detailed, are sufficient proof that the European Commission took the interpretation of the European Court of Justice into account.

O’Reilly’s support for the European Commission’s argument not only renders Regulation 1049/2001 toothless; it also depth charges one of the essential pillars of our democracy and a fundament of the European Union, the division of powers, based on the independence of the judiciary and the subordination of the executive to its interpretation of the legislation, in favour of the European Court of Justice.

A particularly scandalous aspect of the Ombudsman’s final decision is that it finds no problem with denying total or partial access to the 15 documents with EuLimited clearance, parroting the arguments used by the European Commission for documents with EuRestricted clearance. This generates a tendentious confusion between confidential documents, falling under ICUE regulations, and non-confidential documents, such as those with EuLimited clearance.

It is not only the Ombusdman who has ridden roughshod over ICUE regulations, confusing different regulations and documents, it is also the European Parliament, treating MEPs seeking access to TTIP negotiation documents in the European Parliament reading room like criminals or spies.

The European Commission is deliberately denying MEPs access to EuLimited documents, assigning the room the clearance level associated with the highest-security document contained in it. This means that, even if only one EuConfidential document is held in the room, any MEP sharing any information from any document contained in the room, independently of its clearance level, may be subject to criminal sanctions. The sanction is the same whether the information shared is taken from a confidential or a non-confidential document

The solution is simple: the Commission should install a secure computer terminal in a locked room, requiring no special vigilance. This would mean that our representatives would no longer be humiliated when they seek access to these documents.

Another of the Ombudsman’s arguments that incorporates European Commission reasoning is that all the documents contain the Commission’s strategic position in the TTIP negotiations and are unknown to the other party, so making the documents public would weaken the European Union’s bargaining position. This is not true with regard to the 15 EuLimited documents, as, by definition, publishing these documents would have no impact outside the Commission and would in no way influence the TTIP negotiations with the United States or weaken the EU’s position. 

O’Reilly, in apparent contradiction to her obligation to defend the European citizenry, also considers that public interest in these documents is not sufficient to merit their publication. She thus justifies maintaining TTIP negotiations secret, to prevent the true reality of what is being negotiated from coming to light, not the “non original” documents formulated by the Commission regarding the matters under negotiation.

The European Ombudsman has turned a deaf ear to extensive public interest in the original TTIP documents, made evident by the European Citizen Initiative which gathered more than three million signatures. In order to deny the citizens’ their right to a true profound understanding of the real terms of the TTIP, which will affect the daily lives of Europeans and Americans, the Ombudsman has attempted to clean the image of the institution with a survey on the transparency of the TTIP, conducted by the Commission itself and to all effects a smokescreen. 

By endorsing the confidential nature of the TTIP documents and favouring the arguments of the Commission, O’Reilly has clearly demonstrated that she is not willing to put her defence of the transparency of the TTIP negotiations into practice. This episode merely proves that the function of the European Ombudsman is to channel citizen protest, putting up a façade of transparency, which tumbles as soon society asks uncomfortable questions. 

Continuing with her acritical regurgitation of the arguments of the Commission, the Ombudsman, contrary to Regulation 1049/2001, also supports denying access to US documents in the hands of the Commission. Article 2 point 3 of said regulation defines its own scope of application, and reads, This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.

The Ombudsman’s support for the Commission’s interpretation in the scope of international relations does not correspond to the scope of her competence, so it does not seem appropriate that she should evaluate its impact on a hypothetical future bilateral or multilateral dialogue, and she would do well to restrict herself to demanding compliance with Article 2 point 3 of Regulation 1049/2001.

Denying access to non-confidential US documents could be considered irrelevant, if it wasn’t yet another slight against the independence of EU legislation, setting down a precedent for systematic infringement of the legislation when it clashes with economic interests, as described by Konstantinos Chrysogonos in his report on monitoring the Application of EU law.

The Ombudsman’s response, supporting the secrecy of the Commission, archiving the claim for access to 20 original TTIP documents and finding no maladministration in the denial of access to the documents, is a new reverse for European citizenry. However, after 16 difficult months of legalistic battles, it simply even further motivation to continue to fight for the right to information and transparency, as upheld in the EU Charter of Fundamental Rights.

While I am here, I would like to propose a series of measures to improve access to information for European citizens and their representatives in the European Parliament.:

- First, the European Parliament should extend Regulation 1049/2001, developing and specifying the application of exceptions, continuing along the terms of Judgment C‐350/12 P and preventing their being interpreted unilaterally and exclusively by the Commission.

- Secondly, a regulation should be developed to give MEPs access to EuLimited documents and ICUE confidential documents. At present, access to these documents depends on the good will of the European Commission, in the form of one-off agreements, areas and specific documents, based on German regulations in the matter. 

- Third, European Parliamentary groups should demand the immediate installation of secure computers, allowing them access to non-confidential EuLimited documents without fear of criminal sanctions or disparagement of their role as the legitimate representatives of EU citizenry.

Independently of these three measures, and as a personal request, driven by the prohibitive financial cost of bringing proceedings before the Court of European Justice to demand compliance with Ruling C-350/12 P, I ask that some civil society group with sufficient funding, or some political party committed to the defence of the European Charter of Fundamental Rights, carry on this fight for transparency in international relations, in the case not just of the TTIP, but also of other treaties such as the TISA, CETA, etc.

Lastly, I would like to thank all the people following this claim and supporting the defence of our Fundamental Rights against the destruction of civil, labour and environmental rights.

NB: The full process surrounding the claim for access to the 20 original TTIP documents, before the European Commission and the European Ombudsman, can be followed on Economía Ciudadana, the blog of Gregorio Abascal (the claimant and author of this article), which contains extensive information about the TTIP, TiSA and TPP.

Access to information on this matter on the website of NGO

Special thanks to Mary Jo for her excellent translation

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