ClientEarth’s complaint to the European Ombudsman regarding the lack of transparency of the December Council TAC-setting process

This is ClientEarth’s complaint to the European Ombudsman regarding the lack of transparency of the December Council process of setting fishing limits in the Northeast Atlantic. A summary of the Ombudsman’s investigation and findings is available here, and her final decision with links to the various stages of the process is here. Additional related documents include:

• A letter from ClientEarth to the Council (28 February 2019) highlighting concerns about the Council’s failure to respond to several access to information requests (AIRs) regarding December Council 2018 before the decision-making process had concluded, and about deficiencies in the Council’s document register
• The Council’s reply to this letter (9 April 2019)
• The Ombudman’s report on her inspection of the Council (27 June 2019), following ClientEarth’s complaint
• The Ombudsman’s letters to the Council and to ClientEarth (23 July 2019) regarding her inspection report
• ClientEarth’s comments on this inspection report (13 August 2019) and the Council’s reply to the Ombudsman’s request for clarification (25 September 2019)
• ClientEarth’s comments on the Council’s reply (7 October 2019)
• A letter from ClientEarth to the French Minister of Agriculture and Food (5 December 2019), urging him to implement the Ombudsman’s recommendation. Similar letters were also sent to the relevant ministers in Belgium, Denmark, Estonia, Finland, Ireland, Latvia, Luxembourg, The Netherlands, Slovenia and Sweden.
• ClientEarth’s comments on the Council’s opinion on the Ombudsman’s recommendation (9 March 2020)
• A further response from the Council to the Ombudsman’s final decision (10 September 2020)

Further background to ClientEarth’s AIRs and the process leading to the final Ombudsman decision is provided below and in this web story, and an Excel spreadsheet with a detailed directory of all files submitted and received throughout ClientEarth’s AIR work regarding the December Council processes 2016-2020 is available here.

Background

For a number of years, ClientEarth and other NGOs have been submitting access to information requests (AIRs) regarding the setting of fishing limits, or Total Allowable Catches (TACs), by the Council of EU fisheries ministers during the annual December Council process. These AIRs and our advocacy around their findings were geared towards shedding light on this notoriously opaque decision-making process and ultimately improving transparency. This is crucial to ensure civil society can effectively follow and engage in the process and assess the extent to which decisions are in line with science and the law, and to hold fisheries ministers accountable for their decisions. As ClientEarth’s report shows, the Council has been continuously setting TACs above scientifically advised sustainable levels for many years.

Following three years of such AIRs (regarding the December Council processes 2016-2018) to both the Council and the Commission (see section 5 of this report for details), ClientEarth submitted a complaint to the European Ombudsman regarding the lack of transparency of the December Council process. The Ombudsman agreed with our concerns and recommended that "The Council should proactively make public documents related to the adoption of the TAC Regulation at the time they are circulated to Member States or as soon as possible thereafter". Following reactions from ClientEarth and the Council to this conclusion, the Ombudsman confirmed her initial finding of maladministration and reiterated her recommendation. However, the Council refused to accept the Ombudsman’s findings and implement her recommendation.