A Closer Look at EU Transparency: The Mastercard Case and Its Implications
Steve Peers
“[The plans were] on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying, ‘Beware of the Leopard’!”
Arthur Dent, The Hitch-Hiker’s Guide to the Galaxy
The EU’s activities often spark debate. Examples include the trade negotiations with the USA (TTIP), regulations covering diverse products like vacuum cleaners and genetically modified food, and the oversight (or in some cases, control) of Member States’ financial decisions. While someone will always be dissatisfied with the final decisions made on these issues, there’s a longstanding concern about the lack of transparency in the EU’s decision-making process. This lack of transparency has undoubtedly fueled a broader perception that the EU lacks legitimacy.
In 2001, the EU attempted to address this issue by implementing a Regulation regarding access to documents created or held by the Commission, Council, and European Parliament. Although attempts to modify this legislation have been unsuccessful, extensive case law from EU courts has shaped its practical application.
This case law presents both positive and problematic aspects. Fortunately, a recent significant ruling by the EU’s General Court in the Mastercard case falls into the positive category. The Court decided in favor of granting access to background documents prepared by consultants for EU decision-making, thereby significantly increasing transparency in the EU’s decision-making processes.
The Mastercard Judgment
Mastercard requested access from the Commission to background documents prepared by a consultant (EIM) that were part of a report on the impact of costs and benefits for retailers accepting different payment methods. The Commission denied access, arguing that no decision had been made on the relevant issues (‘decision-making’ exception) and that the documents contained information about the consultant’s commercial interests.
The General Court refuted both arguments. Firstly, the documents didn’t directly pertain to any specific Commission decision-making process regarding EU competition law but provided general economic information. Moreover, the Commission hadn’t invoked this exception when initially refusing access. The Court also deemed it irrelevant that the documents were interim, especially since the Commission had shared most of them with stakeholders.
Addressing the second point (commercial interests of the consultant), the Court reaffirmed previous case law stating that the exception applied solely to sensitive information like business strategy and sales figures, not general business information. Applying this to the case, the Court dismissed the Commission’s argument that revealing the consultant’s “trial and error” process in the draft documents would damage its commercial reputation or expose its methodology to competitors.
Consequently, the Commission lost the case, and the documents must be disclosed. However, they have two months to appeal to the Court of Justice.
Analyzing the Implications
While much of the case law on access to documents focuses on the Commission, which holds significant administrative and executive power at the EU level (except in certain external relations aspects), this case highlights the Commission’s reliance on external expertise. The case isn’t an anomaly but rather reflects a common practice: numerous Commission impact assessments and reports depend on reports prepared by external consultants. The European Parliament also utilizes this practice.
Therefore, anyone seeking to understand the Commission’s decision-making or the broader development of EU policies – including journalists, researchers, NGOs, or businesses like Mastercard – needs access to these consultant reports. They offer valuable insights and analysis that play a crucial role in understanding the Commission’s final proposals, reports, and impact assessments.
Typically, the Commission publishes the consultant reports that underpin its documents. So, what difference will this judgment make? First, it might accelerate public access to these reports. More importantly, it will expand access to other background documents prepared by consultants for the Commission.
Personally, I’ve served as an advisor to consultancies preparing reports for the Commission on several impact assessments. While confidentiality agreements prevent me from disclosing specifics (and I should clarify that I wasn’t involved in the Mastercard case), I can attest that it’s standard practice for consultancies to produce interim reports and other background documents not always attached to the final impact assessment report.
Consultants and advisors like myself also develop drafts and working documents not shared with the Commission, and this judgment won’t grant access to those. This is reasonable, as documents the Commission hasn’t seen wouldn’t have influenced its decision-making process. As a longstanding critic of the EU’s access to documents rules, I can only imagine the irony if I were subject to these rules! However, that’s not the case.
What practical implications will this judgment have? In essence, it suggests that all background consultancy reports submitted to the Commission should be made public unless other grounds for refusal apply (see the discussion on the ’external relations’ exception below). The Court’s finding that releasing these documents wouldn’t hinder the Commission’s decision-making process is universally applicable, as is its ruling regarding the consultant’s commercial interests. It’s worth noting that the consultancy firm didn’t intervene in the proceedings, suggesting they weren’t concerned about potential harm from disclosing the document. While acknowledging the expertise of EIM and other consultancies, their impact assessment methodology isn’t exactly a trade secret like Colonel Sanders’ recipe.
The interim reports and background documents might contain information that further illuminates the analysis in the final report. If there’s a valid reason not to rely on these documents, the Commission and/or the consultant can explain this in the final document.
This judgment applies to background consultancy documents across all EU law fields. Businesses, NGOs, journalists, and researchers could leverage it to access potentially valuable documents regardless of their area of interest. Importantly, the Court distinguished this case from previous rulings (relevant to competition and state aid) that allowed the Commission to refuse access to all documents related to specific decisions.
Regarding external relations, the judgment’s impact is somewhat limited. The ’external relations’ exception in the Regulation allows for the refusal of access to details of EU negotiating mandates for treaties like the TTIP. However, it should be possible to redact the negotiating mandate and release the rest of the text.
This increased access to documents raises two crucial questions concerning accessibility and awareness. Firstly, will the Commission make these background documents available, and if so, when? The Mastercard case shows that the Commission did share some documents with ‘stakeholders’ but not the public. It’s likely that the Commission doesn’t consult every entity that might be interested in these documents.
Secondly, how will anyone outside the Commission, the consultancy, and specific consultees know these documents exist? Arthur Dent was unaware of the documents concerning his house’s demolition, which was merely a prelude to the insufficiently consulted destruction of Earth. An unsettling analogy exists for climate change activists.
The Commission appears to have drawn inspiration from this fictional dystopia when designing its access to documents system. When redesigning the Eur-lex system for accessing EU law, the Commission removed the direct link to its access to documents register, a move they even denied.
Although the register can still be found through a Google search or by clicking here, its removal from the Eur-lex page could mean fewer people are aware of its existence. Even if they find it, they might not find the background documents from consultants, given the register’s limited scope. The Commission seems to have missed that Douglas Adams was engaging in satire, not offering a blueprint for their access to documents regime.
Barnard & Peers: chapter 3, chapter 5, chapter 8