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The complaint concerned the transparency of the decision-making process in the Council of the EU, leading to the adoption of the annual regulations setting total allowable catches (TACs) of certain fish stocks in the Northeast Atlantic for 2017, 2018 and 2019. The complaint was submitted by the environmental law organisation ClientEarth.
The complainant was concerned that the Council (1) failed to record the positions of Member States expressed in Council ‘preparatory bodies’ of national civil servants and Ambassadors, as well as in meetings of the Council of Ministers, (2) failed to provide timely access to legislative documents, proactively and upon request, and (3) has in place an incomplete register of documents that is difficult to use.
The Ombudsman took the view that the documents in question are ‘legislative documents’, as defined in the EU rules on public access to documents. In addition, the documents contain ‘environmental information’ within the meaning of the Aarhus Regulation. Wider and more timely access should be granted to such documents. The Ombudsman also found that the Council had not demonstrated that disclosing the documents would seriously affect, prolong or complicate the decision-making process.
The Ombudsman therefore recommended that the Council should proactively make available documents related to the adoption of the TAC Regulation at the time they are circulated to Member States or as soon as possible thereafter.
The Council has chosen not to follow the Ombudsman’s recommendation. This is disappointing. Furthermore, it suggests the Council has failed fully to grasp the critical link between democracy and the transparency of decision-making regarding matters that have a significant impact on the wider public. This is all the more important when the decision-making relates to the protection of the environment.
The Council’s position appears to be that a key democratic standard - legislative transparency - must be sacrificed for what it considers to be the greater good of achieving a consensus on a political issue.
The Ombudsman confirms her finding of maladministration and her recommendation.