11th Dec 2023

EU Ombudsman warns of 'new normal' of crisis decision-making

  • The EU Ombudsman opened 54 inquiries into delays in public access to EU Commission documents (Photo: EU Ombudsman)
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The EU Commission risks failing to balance fundamental rights in its focus on geopolitics, warned the EU Ombudsman Emily O'Reilly, speaking at Warsaw University on Wednesday (27 September), in a more general broadside against the Berlaymont's "new normal" of speeded up decision-making and lack of transparency.

"Geopolitics risks the de-prioritising of values," the EU ombudsman said. "The human rights elements should not be viewed as an optional addition to political dealmaking".

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"That [geopolitical] shift was visible across every page of [Ursula von der Leyen's] State of the Union address to parliament two weeks ago," O'Reilly said. "On migration, there was no trace of [Jean-Claude] Juncker's emotive and emotional plea for human understanding of some years ago".

Although politics is not the ombudsman's domain, which is confined to the administrative sphere, the new geopolitical direction poses some challenges to its mandate — which oversees the institution's balance between political challenges and obligations under the treaties and fundamental rights.

As the main duty of the EU ombudsman is to identify and remedy maladministration in the EU institutions, bodies and agencies, the urgency of the geopolitical challenges may make the task of holding the institutions accountable even more difficult.

O'Reilly cited the post-pandemic recovery funds, the windfall taxes on energy companies, and the joint purchase of vaccines, as some welcome but lightning-fast procedures that received limited scrutiny from the national parliaments — as a result of emergency decision-making powers that bypassed parliament.

"The most important challenge is the temptation to make crisis decision-making the new normal," the EU Ombudsman said, citing the EU agreement with Tunisia as a good illustration.

Murky transparency

Providing access to public documents held by the EU institutions is another way of holding them to account. And every citizen has a fundamental right to access those documents.

However, the institutions do not always respond in time or in the right way, particularly the EU executive, so citizens can refer the matter to the ombudsman or to the court of justice of the EU if a request is refused or not answered in time.

As of 15 September, the ombudsman had opened 54 inquiries into delays by the commission — compared with 35 in 2022 and 21 in 2021.

In 2022, the EU ombudsman opened an inquiry to decide whether the delays were significant and systemic. In March 2023, their assessment confirmed that they were.

In particular, requests relating to documents of high public interest, such as migration, EU recovery funds, or sanctions in response to Russia's aggression against Ukraine, took over a year to be resolved.

"My concern is that these delays undermine citizen's ability to scrutinise EU decisions and policies in a direct and timely way," O'Reilly said.

The EU institutions have a maximum of 30 working days to reply. Of the 8,420 requests made to the commission in 2021, 16 percent were not answered within this time. That figure that rises to 85 percent when the applicant asked for a review of the rejection or partial acceptance of a request, known as a confirmatory application.

Failure to meet these deadlines amounts to "maladministration", the ombudsman concluded, calling on the EU executive to remedy the situation as a matter of priority.

In an own-initiative inquiry, the body cited insufficient human resources to deal with the increasing demand for documents, as well as limited interaction with requesters and insufficient proactive transparency to anticipate these requests in some high-demand areas.

The commission replied that these delays affected only five percent of all requests received in 2022 and committed to allocating more resources to deal with requests, although it did not specify how many.

Last Thursday (21 September), the matter was brought to the attention of the European Parliament, which could now adopt a resolution to formally support the EU ombudsman in getting the commission to implement its recommendations.

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