In the Dark

There is an old adage in the world of official transparency that “sunlight is the best disinfectant”. But when it comes to Europe’s recovery transformation via the NextGenerationEU (NGEU) programme and related instruments, the Commission insists on conducting as much of it as possible in the dark.

The centrepiece of that transformation is the Recovery and Resilience Facility (RRF), which directs hundreds of billions of euros of European taxpayers’ money to objectives identified by national governments. Since the RRF became operational in 2021, both investigative journalists and researchers have filed numerous access-to-documents requests to understand better how the Commission is handling of the so-called recovery and resilience plans (RRPs) submitted by national governments. The Commission’s response to these requests have consistently been foot-dragging and strategic delay; thus, preventing public debate about the RRF. As concerns grow about both the effectiveness and even potentially corruption in the use of recovery funds, this lack of transparency is particularly worrying.

I am currently writing a book about the legal aspects of this transformation. In March 2023, I submitted a request for access to documents concerning the legal advice behind this construction to both the Commission and the Council. After some hesitation, the Council disclosed its advice. However, more than thirteen months and two Ombudsman appeals later, I am still waiting for the Commission decision to my confirmatory application. The Commission EASE portal informs me that “the internal consultations within the Commission regarding your request are still ongoing. We hope to finalise the shortly and to send you the final reply as soon as possible”. This is clearly at odds with the official line of the Commission President, who has assured that the Commission has ‘adopted from the start a policy of maximum transparency’. In a letter to the European Ombudsman, she describes how

the Commission has already made extensive material about the RRF proactively available and we remain fully committed to ensuring the access to documents rights of EU citizens on a topic that is of significant public interest. […] You can also rest assured that we endeavour to safeguard that access to documents rights are exercised within the strict deadlines provided by Regulation (EC) No 1049/2001. […] You can rest assured of our commitment to ensuring the transparency of the Recovery and Resilience Facility as we share your assessment that full ownership by EU citizens is a prerequisite to ensure its success.

I am not alone in my wait. A great number of requests can be found through the AsktheEU portal and various inquiries by the European Ombudsman. Requests have been brought in particular by investigative journalists and researchers including from the Netherlands, Germany, France, Finland (in file with the author), Denmark and Sweden, seeking greater insight into the preparation of their national plans. Their success has so far been far from the ‘policy of maximum transparency’ flagged by the Commission President and demonstrates confidentiality as the Commission’s institutional policy.

The legal framework for transparency

The RRF Regulation includes a specific Article 25 about Transparency, but it is directed at making Commission information available for the European Parliament and the Council. There is nothing in the Regulation that would concern transparency in relation to the broader public. This may also be unnecessary, since Regulation No 1049/2001 establishes the principles and rules concerning access to documents held by the Commission, Council and the European Parliament, and a procedure for consulting Member States concerning the disclosure of documents originating from them.

The Regulation establishes that all documents held by the Institutions are, as the main rule, public. Documents can however be fully or partially withheld in case their substance relates to a protected interest, such as ‘the financial, monetary or economic policy of the Community or a Member State’ (Article 4(1) (a) or the prospect that this might ‘seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure’ (Article 4(3)), which are the exceptions that are most relevant for the RRF. Under established case law, the risk to protected interests must be reasonably foreseeable and not purely hypothetical.

For those documents that have not been proactively disclosed by the Institutions, the Regulation lays down a two-stage administrative procedure for seeking access, and an obligation for the institutions to examine the requested documents and provide and answer within fifteen working days. The Regulation does not regulate public access to documents held by national authorities beyond a consultation process in case the document originates from the EU institutions.

Under the Regulation, access shall be granted within 15 working days. Alternatively, the institution can “state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application”, which enables the applicant to ask the institution to reconsider its position. Further, [i]n exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit [..] may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given”. Therefore, the total maximum time for the Institution to deal with a request can never be longer than 30 working days for the initial application and 30 working days for the confirmatory application. The guardian of the Treaties must be aware of this.

In the case of the RRF, the applicants have often needed to wait for a decision for more than a year. In relation to a French request, the Commission took more than 13 months to take a confirmatory decision on the request (from 4 May 2021 to June 2022). In relation to a Dutch request, the Commission identified 195 documents as falling within the scope of the request but refused access to 172 of them in the initial round. A year later, there is still no confirmatory decision to the request. The Ombudsman has recently brought the matter of systemic delays in the Commission to the attention of the European Parliament by way of a Special Report.

And good things do not always come to those who wait. In response to a Finnish journalist’s request, the Commission identified between 600 and 700 documents, with a length of more than several hundred pages. To combat the workload, the Commission first proposed a restriction of scope of the request to cover only some of these, and even then ‘regret[ed] to inform you that your application [to a significant part of them] cannot be granted (Ares(2022)2991252, in file with author). The Commission has routinely invoked confidentiality concerns irrespective of how far the decision procedure has been, whether the documents originate from the Commission itself or Member States and whether the latter oppose disclosure or not.

General Court and the Spanish RRP

In its argumentation, the Commission has received support from the single General Court ruling that involves access to documents in relation to the Spanish RRP. In response, the Commission RRF Task Force had identified four documents: the official Spanish RRP and the letter announcing its submission; the Commission acknowledgement of receipt and a letter from the Spanish authorities including further information on some components. While the Task Force disclosed the Commission letter, it refused to disclose the three other documents, the disclosure of which Spain opposed.

The origin of the document matters for its legal assessment. Under established case law, the institution is responsible for the lawfulness of the decision and must thus examine whether the Member State has provided proper reasons for its position (see C-135/11 P; T-74/16 and T-669/11). Consequently, the institution cannot merely record the fact that the Member State concerned has objected to disclosure but must also set out the relevant exceptions. The Institution’s obligation to examine the document is however lighter and limited to conducting a review of the verification of the mere existence of reasons; the normal obligation to carry out a specific and individual examination does not apply.

In this case, the Commission found the reasons relied on by the Spanish authorities prima facie sufficient, and failed to identify any overriding public interest in speaking for disclosure.It relied on the importance of the Spanish proposal, which ‘specif[ied] in detail an extensive set of reinforcing reforms and crucial investment projects, concrete timetable of disbursements of non-repayable support, and other specific details about financial planning and policy of Spain’. Thus, disclosure ‘could negatively impact the economic policy of Spain, given the size of the plan on the Gross Domestic Product’’. For this reason, ‘disclosing the detailed withheld information would produce serious political implications that could negatively impact the disbursements of the EUR 69.5 billion’. For the Commission, ‘public access to these documents [could] lead to interferences and speculations at each step of the negotiation process, and eventually entail risks to financial stability’. Disclosure would lead to ‘unjustified speculations on the financial policy of the Member State by means of textual comparisons’; and thus ‘generate unwarranted pressures […] when defining the operational arrangements that further specifie[d] elements, in particular, for the monitoring and implementation of the plan. Given the preliminary nature and the content of the documents requested, [it] consider[ed] this risk as reasonably foreseeable and not purely hypothetical’ (para 52 of the ruling).

The applicant pointed out that other documents relating to current funding programmes or funds received Spain had already been made public and that the Commission’s assertion of serious political implications

is abstract and does not reflect a tangible threat. Even if it were accepted that certain parts of the requested documents were politically sensitive, their disclosure could not be concealed from citizens, since the reforms and disbursements envisaged are public in nature. Other politically sensitive documents, including RRP from other Member States, are public and their sensitivity has not precluded their disclosure. Moreover, the funds granted to the Kingdom of Spain have already been decided and the disbursement is merely an administrative matter which takes place after the milestones and targets set out in the RRP of the Kingdom of Spain are met (para 26 of the ruling)).

Potential speculations of policy decisions were irrelevant as the plan had already been assessed and validated by the Commission and approved by the Council. For the appliant, ‘[o]n the contrary, it is the lack of transparency which leads to speculation as to the reasons for the non-disclosure of those documents. Since the negotiation procedure has ended, that reasoning no longer applies in any event’.

The Court accepted the Commission and Spanish argumentation in full without inspecting the document, immediately acknowledging that ‘the implementation of that RRP involves extensive and significant reforms for the Spanish economy’ (para 48). The Court accepted that the documents ‘constitute only an initial stage, ‘preliminary [in] nature’. Submission of the plan constituted merely a step in the more general process. Moreover, the plan could be further updated, and only one payment decision had been adopted. For this reason, the Court accepted that the consequences of the RRP for Spain’s financial and economic did not end with the approval of the plan and were ‘the subject of permanent negotiations between the Commission and the Kingdom of Spain, in particular as to whether the milestones and targets set out in the RRP had been met’ (para 61).

The Court further accepted the Spanish claim that ‘the RRP of that Member State concerns a vast body of reforms and investments, which concern significant and sensitive aspects of the development of the Spanish economy, the implementation of which will require several years and significant discussions with the various interested parties’ (para 62). The Commission and Spain also jointly argue how it was

reasonably foreseeable that disclosure of the exchanges between the Member State concerned and the Commission could have been used in order to analyse whether the agreed milestones and targets were met. Disclosure of the requested documents would then have compromised the Kingdom of Spain’s negotiating position in its future applications for payment of the remaining financial contribution, which risked subjecting it to external pressure (para 66).

Unlike the EU’s transparency rules establish, the Court, the Commission and Spain all move on the presumption that public interest is in securing the confidentiality of the process and the ‘proper conduct of the negotiations still to be held’. Therefore, ‘disclosure of the requested documents was likely to open the way to speculation or interference with the implementation of the RRP, thus creating unjustified difficulties for it in the negotiations which were still to take place’ (para 68).

There is a certain logic to this argumentation, of course. It is foreseeable and not hypothetical that if indeed it was publicly known that the Spanish government had not lived up to its commitments, this might cause public debate including both in the European Parliament and other Member States. But it is not impossible that the publicity might actually improve the seriousness of a state’s commitments and the chances that a state delivers on them.

Whose financial and economic policy?

The standard ground for refusing disclosure has been undermining the ‘financial, monetary or economic policy of the Community or a Member State’. In the latter case, one would think that the Member State’s ow position would be of some relevance. In reality, this has had no effect on the Commission’s drive for confidentiality.

The request relating to the French plan indicates how, in case of Member State opposition, the Commission is glad to find their prima facie objections to be well founded: disclosing the documents including those originating from the Commission itself could undermine the financial, monetary or economic policy of France – a position that the Ombudsman later criticised. However, in the case of the Finnish plan, the Commission decision includes no indication of a consultation with Finnish authorities. Yet, the Commission felt confident to argue that disclosure

would result in disclosing detailed information related to Finland’s financial and economic policy which could indeed undermine the protection of ‘[…] the financial, monetary or economic policy of a Member State’. Moreover, disclosing these details would strain the working relations between the European Commission and the Finnish national authorities at a moment where discussions are ongoing on the preparation of the implementation phase of Finland’s Recovery and Resilience Plan. This would generate unjustified pressure on the Commission, undermine the independence and objectivity of the decision-making process and the European Commission would be deprived of the possibility to explore all available paths for decision-making. (Ares(2022)2991252).

In response to a request concerning the Swedish and Danish plan, the national authorities were consulted on disclosure. The Swedish authorities did not oppose disclosure, but invited the Commission to consider whether disclosure could seriously undermine its own decision making process. The Danish authorities considered that a number of documents should not be disclosed, but not because of economic and fiscal policies but in view of protecting certain commercial interests.

However, the Commission chose to insist on their confidentiality all the same. It argued that ‘the Swedish plan in particular included measures in economically and politically sensitive areas that, if disclosed, could have hindered the adoption of the plan’. The Commission further emphasised its own wide discretion when determining whether disclosure would undermine that public interest. In its view, ‘disclosure of the documents could lead to interference in and speculation during the negotiation process and to unwarranted pressure on the Commission and other EU institutions assessing the plan’. It pointed out that the size of the national plans meant they ‘have an impact on the respective national economies and, as a result, on the economy of the EU as a whole. As the measures set out in the plans are clearly linked to the relevant national and EU financial and economic policies, the Commission considered there to be a reasonably foreseeable risk that disclosing the documents could undermine the financial or economic policy of Sweden, Denmark, and the EU as a whole’. Finally, it stressed how the ‘RRF has the particularity of being financed with money raised on financial markets on behalf of the EU. The negative impact on implementation in one Member State could therefore affect not just the Member State concerned but also the EU’s position on the financial markets which, in turn, could affect the economy of the EU as a whole’.

Even here, the Ombudsman saw that it was difficult to see ‘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’. And pointed out how it is ‘hard to draw the conclusion that the disclosure of the documents would undermine the financial, monetary or economic policy of the Union’.

Transparency as interference

The emphasis of the Commission has been on the worry that transparency might hinder efficient decision making (Article 4(3) of the Regulation) – a matter on which the General Court did not actually rule in the case quoted above. For example, in response to a Dutch investigative journalist requesting access to documents relating to the negotiations involving the Dutch RRP, the Commission emphasised how

disclosure of the internal and preliminary considerations laid down in (the withheld parts of) these documents would undermine the climate of mutual trust with the Member State concerned and seriously undermine the required independence and objectivity of the ongoing decision-making process. Disclosing these details would discourage the Commission officials and members of the Dutch administration from having free and open discussions on the national plan without interference. Such disclosure would risk inciting restraint during future assessments and limit the exchanges of unrestricted, independent opinions and advice necessary for the accomplishment of the institution’s task. At the present stage, it would strain the working relations between the European Commission and the Dutch national authorities. As a result, the European Commission would be deprived of the possibility to explore all available paths for the ongoing decision-making process. In addition, their disclosure would open the door to undue external pressure on the ongoing decision-making process as it would disseminate preliminary conclusions that do not represent the final position of the European Commission, nor of the Dutch authorities. This could lead to speculations, premature conclusions and serious interference with the European Commission’s decision-making process. As a result, the European Commission would be deprived of engaging in a constructive form of internal criticism, provided free of all external pressure (C (2022) 6154 final).”

This worry has dominated the handling of requests irrespective of the stage of decision making. The assessment of the Swedish RRP was still ongoing when disclosure was refused. The Danish plan, on the other hand, had already been approved by the Council. However, here the Commission relied on how the decision-making process might continue even after the plan’s adoption; in fact, until 31 December 2026. Finally, the Commission could see no public interest justifying disclosure. In particular, ‘the interest of Swedish voters and taxpayers affected by the Swedish plan’ did not override the need to protect the ongoing decision-making process. In the French case, the Commission repeated the claim that the decision-making process could extend to the year 2026, which is the deadline for the adoption of payment decisions by the Commission. The Ombudsman pointed out that it was ‘difficult to understand how documents pertaining to the closed negotiations of an RRP ‘transform’ into documents in an ongoing decision-making process on complying with the RRP’, and how documents related to the setting of milestones could seriously undermine the future evaluation of the achievement of these milestones.

Transparency, Confidentiality, Corruption

Outside the European Commission, transparency is seen as one of the best means to fight corruption. At the point when the RRF was being designed, Thomas Wieser, the former President of the EFC, pointed out that while the RRPs has potential to bring about important reforms, the model also involves planning and implementation risks at both national and EU levels that could not be mitigated through bureaucratic governance. Instead, the risks could be reduced by increasing the political price of bad planning and implementation. The solution he argued was (the threat of) transparency and a strong role for the EP to provide a forum for that debate.

In the past weeks, we have heard how – instead of the promised digital leap and green transformation – EU tax payers’ money has been spent on a Lamborghini and Rolexes, and how ‘Fraud-busters swoop on Greek contracts involving €2.5B of EU recovery funds’. EPPO is known to have over 200 ongoing investigations relating to the use of these funds, and the President of the European Court of Auditors has repeatedly alerted us to the reality that episodes of fraud in the use of RRF funds will be repeated because of the lesser control framework attached to this money.

Yet, despite some baby steps in the direction of transparency and general insistence that , the Commission seems to have made it its mission that the approval of plans and the follow-up of milestones and targets should be governed by a general secrecy.