Ombudsman rejects Commission secrecy over business lobbyists' names

In October 2005, Corporate Europe Observatory, an Amsterdam-based lobby watchdog, submitted a complaint against the European Commission after Directorate-General Trade – led by Peter Mandelson – had started blanking out the names of industry lobbyists in correspondence, minutes of meetings and other documents released under EU access to document rules.1 Corporate Europe Observatory has over the last years attempted to monitor DG Trade’s relations with corporate lobby groups such as the European Services Forum, which by many civil society groups are seen to enjoy privileged access and influence over EU trade policies. In its response to the Ombudsman, the Commission argued that the disclosure of the names of the lobbyists would “undermine the protection of the privacy and the integrity of the individual”.2 The Commission also referred to data protection rules as a justification for the secrecy. Corporate Europe Observatory considers this argumentation an abuse of rules that were never intended for keeping names of business lobbyists away from public scrutiny. In his final judgement the Ombudsman also rejects the Commission’s argumentation. “Blanking out names of industry is the opposite of transparency. The Ombudsman’s judgement is good news, also for those within the European Commission that are dedicated to improving openness in EU decision- making”, says Olivier Hoedeman, research coordinator at Corporate Europe Observatory. But Corporate Europe Observatory regrets the Ombudman’s failure to take further action towards ending the European Commission’s distortion of privacy and data protection rules.3 “Nothing less than the right of citizens to information about the role of lobbyists in EU decision-making is at stake. It would be unacceptable if a verdict of the European Court of Justice in a very specific and only remotely related case could be misused to counter efforts to improve transparency on lobbying”, says Erik Wesselius, transparency campaigner at Corporate Europe Observatory. The ruling of the European Court of Justice is expected in the Autumn.

• 1. On 11 October 2005 Corporate Europe Observatory filed a complaint to the European Ombudsman (complaint 3269/2005/TN) about the European Commission’s blanking out of the names of industry lobbyists in documents to which access had been provided under Regulation 1049/2001. In his decision (dated July 16 2007) the Ombudsman concludes that “the complainant’s allegation that the Commission failed to comply with its duty to provide proper access to documents under regulation 1049/2001 appears to be founded. This would constitute an instance of maladministration by the Commission.” The Ombudsman “considers that the Commission has failed to comply with its duty to provide proper access to document under Regulation 1049/2001 by
  • wrongly blanking out the names of industry lobbyists in documents to which access was provided under Regulation 1049/2001;
  • failing to explain how the disclosure of the names in question would “undermine the protection of the privacy and the integrity of the individual” as stipulated in Article 4(1 )(b) of Regulation 1049/2001; and
  • wrongly relying on Article 8(b) of Regulation 45/2001 when blanking out the names. For these reasons the Ombudsman concludes that the complainant’s allegation that the Commission failed to comply with its duty to provide proper access to documents under regulation 1049/2001 appears to be founded.”
• 2. Secretariat-General of the European Commission argued that the disclosure of the names of the lobbyists (for instance from the European Services Forum) would “undermine the protection of the privacy and the integrity of the individual”. The Commission had also referred to data protection rules [Article 8(b) of Regulation 45/2001] arguing that personal data shall only be transferred if the recipient “establishes the necessity” and if “the data subject’s legitimate interests will not be prejudiced”. Corporate Europe Observatory argued that the lobbyists did not communicate with the Commission in a private capacity and that their meetings with the Commission should be subject to public scrutiny. The Commission insisted that “disclosure of the names of the individuals concerned could interfere with their private life undermining their privacy and integrity and expose them to undue external pressure”. The Ombudsman has now rejected these arguments.
• 3. “The Ombudsman recalls that the Court of Justice of the European Communities is the highest authority when it comes to the interpretation of Community law” and states “that it is not useful at this stage to address a proposal for a friendly solution to the Commission on the basis of the finding of maladministration [...] since the Commission would not be likely to take any action before the Court has delivered its judgement in Case T-194/04 Bavarian Lager v Commission”. The Ombudsman therefore closes the case and suggests that Corporate Europe Observatory presents a new complaint after the Court’s decision.