What does Brussels know that Stockholm and Copenhagen don’t? asks the European Ombudsman rhetorically as it tries to understand why the European Commission decided to keep documents about talks with the two EU member states confidential.

The talks were about the Swedish and Danish national Recovery and Resilience Plans. These plans describe how a member state wants to spend its allocated money from the EU’s billion-euro post-pandemic fund, the Recovery and Resilience Facility (RRF) – and which reforms it will carry out in return.

Journalists involved in the international #RecoveryFiles investigation, led by Follow the Money, had requested access to documents on Commission meetings on these national plans. As we reported earlier, the Commission refused access to a wide range of documents – both in first instance and after a lengthy appeal.

A fundamental right

Staffan Dahllöf, a freelance journalist from Sweden, based in Denmark, filed two access to documents requests: one regarding the discussions between the Commission and Sweden about its national plan and one about the Danish plan. The Commission largely refused access, but also handled the two cases differently, following which Dahllöf complained to the Ombudsman. The latter investigated the case and published its decision on Thursday.

The Ombudsman stressed that ‘public access to documents is a fundamental right’. Any (partial) refusal to documents must be substantiated by explaining why one of the exceptions laid down in the EU’s regulation on access to documents applies. An important part of the Ombudsman’s investigation was looking at whether the Commission had done that.

The Ombudsman concluded that the Commission ‘failed to give adequate and convincing reasons for refusing to grant public access to the documents in question’.

No convincing arguments

One such reason the Commission gave, was that releasing the documents would risk undermining the Nordic countries’ financial, monetary or economic policy. Surprisingly, that opinion was not shared by Sweden or Denmark. The Ombudsman noted ‘it is very difficult to understand [..] what insight the Commission has into the financial, monetary or economic policy of the two Member States that should prevail over their own views on what risks the disclosure of the documents would entail’. 

The Ombudsman was also not convinced by the argument that publishing the documents would lead to undermining the financial, monetary or economic policy of the EU as a whole. ‘The arguments presented by the Commission remain vague and general in nature, making it difficult to distinguish them from any other event that could potentially affect the economy of the two Member States or the Union.’

The European Commission used another exception to argue against disclosure of the papers, which was that it would undermine its decision-making process. But the Commission ‘had not convincingly explained’ why that would be the case. Additionally, the Commission should have determined if an ‘overriding public interest’ trumped that argument. But the Commission ‘has found that the interest of citizens cannot prevail over the interest in keeping its talks with the two Member States secret, at the cost of accountability,’ concluded the Ombudsman, adding the Commission ‘has not provided specific reasoning for that view’.

The Ombudsman urged the Commission to take its comments into account when it deals  with ‘future public access requests covering the negotiations that took place on the RRPs’. Several of such requests are in fact still pending. RecoveryFiles-partner Matej Zwitter (Ostro) has been waiting almost a year for documents about RRP talks with Slovenia. Follow the Money too filed an appeal with the Commission to publish documents on discussions between the Commission and Dutch civil servants. This request, too, is overdue.