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17th May 2022

NGO wins access to EU documents on UK opt-outs

  • Access to documents is one of the rights in outlined in the Charter of Fundamental Rights (Photo: ec.europa.eu)

A five-year struggle to access documents came to an end on Monday (4 March) when the EU ombudsman welcomed the European Commission’s move to release papers concerning negotiations on the EU's rights' charter.

The papers reveal details of negotiating tactics used by member states on the UK’s opt-out on the charter of fundamental rights in the lead up to the adoption of the Lisbon Treaty.

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EU ombudsman Nikiforos Diamandouros in a statement said “public access to documents concerning how EU law is adopted is key to winning the trust of European citizens.”

The Brussels-based NGO European Citizen Action Service (ECAS) had made the request to see the texts in October 2007. It argued that UK citizens should have the right to know why the charter should not apply to them.

The commission said that to release the papers would allegedly impinge the internal decision-making process, however.

ECAS then took the case to the ombudsman who ruled in its favour twice, first in July 2011 and then again in December 2012.

The commission ignored the ombudsman’s initial recommendation to release all the texts.

ECAS then referred back to the ombudsman, who in December ruled that the commission’s position “constitutes a substantive violation of the fundamental right of access to documents” outlined in the very charter in question.

The December decision prompted the commission to not only release the documents on the UK, but also on other opt-out cases involving Poland and the Czech Republic.

‘Lesser of two evils’

Germany was at the time the EU rotating presidency.

The documents show how it attempted to work around the UK position by removing all binding measures from the charter on member states because “an opt-out from fundamental rights is hard to sell."

Germany’s plan was supported by the council's legal services who noted that the charter would still apply to member states even if references to binding measures were removed.

The commission disagreed and pointed out that the interpretation would instead create legal chaos. The Brussels-executive then proposed allowing the UK to opt out instead of having to amend the charter.

“The documents reveal that the opt-out was the lesser of two evils,” said ECAS director, Tony Venables, in a statement on Monday.

Venables pointed out that the member states were instead more interested in finding an agreement among themselves than securing the “maximum protection of our rights.”

“It is indeed a positive development that these documents have been released as this will make it difficult for governments to talk about EU democracy at home and then negotiate in secret in Brussels. This increased transparency is welcome and timely,” said Venables.

For its part, the commission noted that it grants full or partial access to documents in 88 percent of requests from the public.

The commission’s institutional affairs spokesperson Antonio Gravili told this website the commission had granted ECAS access to two of the five documents in its initial 2007 request.

The remaining three were disclosed this year because “things change, there has been more case law and the Lisbon Treaty has entered into force,” said Gravili in an email.

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