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Secrecy Tracker, 15.04.2025 Hello friends, We (Investigate Europe, Follow the Money and EUobserver) are back with a new instalment of Secrecy Tracker; your bi-monthly(ish) update on what the EU institutions want to keep under wrap. If you haven’t followed along, this is where you can find us journalists complaining about the way the EU institutions make it hard to access documents and information that should be public in the first place.   This issue is authored by EUobserver’s Alejandro Tauber. We like to complain, but in this case, it’s justified, because all the obstruction we face is to serve the interests of citizens – you. This is the third edition in the series, in which we cover an open letter calling on the European Commission to make document access (and our life) easier, a three-year saga to uncover cluelessness, document hermeneutics, Malta’s gambling protection racket and an opaque harassment case in the European Parliament. Not signed up yet? Join here: Follow the Money - EUobserver - Investigate Europe. Journalists are mad as hell over roadblocks to access The European Commission is failing the EU’s transparency promises with its overly restrictive and painfully slow response to access to document requests, according to an open letter signed by dozens of journalists based in Brussels and across Europe. Campaigners (and this newsletter) contend that Ursula von der Leyen’s Commission has put curbs on the public’s right to know – days into her second term, the Commission effectively limited access to certain types of documents, such as legal opinions and files from regulatory investigations. These new rules are now challenged in court. The letter also addresses the lack of transparency of the Commission in making laws - despite such transparency being enshrined in the EU treaties. This, in turn, complicates journalists' work in understanding how laws are made, and uncovering lobbying. Addressed to Maroš Šefčovič, the Commissioner responsible for transparency under President Ursula von der Leyen, the signatories demand timely replies and untempered access to legislative files, echoing previous criticism by the European Ombudsman over delays in the Commission’s replies, often exceeding a year despite a legal maximum of 30 working days. The journalists demand the Commission adhere to transparency rules in the EU treaties and Fundamental Rights Charter. It argues that strengthening the process for requests can enhance transparency and reduce administrative burden. The open letter calls on the Commission to address these issues, and offers to “contribute constructively to developing solutions”. It’s still open for signatures by journalists, and will be formally presented to the Commission by the end of the month. The three-year Libya saga A three-year saga of commission document requests by EUobserver recently ended, demonstrating the EU executive’s creative approach to transparency regarding operations in Libya. In 2022, EU commission official Francisco Gaztelu Mezquiri confidently assured MEPs that a hired watchdog had found zero breaches of the EU's famously vague "do-no-harm" principle. Since that seemed an unlikely outcome, EUobserver started on a quest to get the Commission to name the contractor and release monitoring reports confirming Mezquiri’s statement. The Commission repeatedly refused to name the contractor and eventually released monitoring reports so heavily redacted they might as well have been blank pages. After some nudging by the European Ombudsman, the Commission sheepishly – and obtusely – admitted that its "watchdog" was only noting hypothetical risks—not actual harm. Meanwhile, the European Court of Auditors added fuel to the fire by highlighting the Commission's ignorance when it comes to the actions it funds in Libya: staff didn't know exactly where or how EU-funded equipment was used, and had no mechanisms in place to find out in the first place. Reassuring to finally know that EU oversight remains firmly grounded in uncertainty. Ceci n’est pas un document Subscribers to the Secrecy Tracker will probably know by now that the European Commission is often too slow in replying to access to documents requests that have reached the appeal stage. I recently had to wait almost a year for a decision about a staff letter sent to Commission president von der Leyen about her Israel policy. Responding to my complaint to the European Ombudsman, the closest the Commission came to an apology was acknowledging "there was a certain delay". Apart from that, there was something peculiar about the final decision. The Commission included in the reply letter the text of an intranet message sent by von der Leyen to her staff, but also went through great lengths to argue that such messages are not a ‘document’. It wrote: "Indeed, the mere fact that such an internal communication element was published on the Commission internal communication website does not necessarily mean that it led to the production of any document within the meaning of Article 2(3) of Regulation (EC) No 1049/2001." This might seem bureaucratic gibberish, but the argument is very similar to the reasoning the Commission uses to keep von der Leyen's text messages a secret. Because of the medium by which they were submitted, they supposedly are excluded from the EU's transparency rules. But that goes completely against the technology-neutral legal definition of a document, which contains the phrase "any content whatever its medium". Why is the EU Commission protecting the gambling industry? In June 2023 Malta passed a law shielding local gaming companies from complying with court rulings from other EU states, depriving thousands of EU citizens of repayments worth hundreds of millions of euros. While it appears absurd, the EU Commission's refusal to address this controversial ‘Gaming Act’, also known as bill 55, raises suspicion of undue influence from the gambling industry. Legal experts, including former ECJ Advocate General Miguel Poaires Maduro who spoke to Investigate Europe, agree Malta’s law clearly violates EU single-market principles. Even the conservative Vice-President of the European Parliament, Sabine Verheyen (EPP), accused the European Commission of ‘failing to act appropriately’ and called on it to ‘really live up to its role as guardian of the treaties’. IE applied for access to the respective documents, but after a 6-week processing time, Director-General Anna Gallego rejected the application because there was allegedly ‘no overriding public interest’ – despite there being almost 100,000 affected complainants to whom Malta is denying their rights. So IE submitted another confirmatory application, pointing out that it is also in the public interest to dispel any of the EU Commission colluding with the gambling industry. The Commission set the deadline for a response for 10 January 2025, but despite three reminders from IE, there has been no response until today. Not all hope is lost. Austria’s Supreme Court has brought Malta’s law before the European Court of Justice. Once ruled illegal, EU parliamentarians must investigate why the Commission has allowed this injustice and protected the gambling industry for years. EU court case on transparency Emilio De Capitani, a transparency advocate and former parliament official, is taking the Council of the European Union to court for refusing to grant full access to certain legislative documents. He argues that the Council is not only blocking access but also failing to publish documents that should be made public by law. The case centres on EU transparency rules (Regulation 1049) that require openness in law-making. De Capitani claims the Council misapplied legal exceptions, ignored public interest, and violated citizens’ right to know. He’s asking the Court to annul the Council’s decision and cover legal costs. A hearing will take place this month, on 30 April. Transparency problems in the European Parliament in harassment case Three victims of a European Parliament bully (Spanish former socialist MEP Mónica Silvana González) still don't have access to the parliament's report on their own case two years and a court victory later. The report, by the EU assembly's anti-harassment "advisory committee", contains information that could help them contest a civil action in Belgian courts against their former tormentor. Parliament did hand an anonymised copy of the text to the Belgian courts. But the EU's General Court in February criticised parliament for failing to explain why it had withheld the document from the victims themselves. The parliament did not "specify either the information covered by confidentiality or the reasons for safeguarding the confidentiality" of the advisory committee's report, the EU court verdict said. But the only thing the parliament did in response so far was to issue a boilerplate message to media, saying: "The European Parliament took note of the ruling and is looking into it". It has until late April to decide whether to appeal. Meanwhile, the victims have now had to ask for the report once again, but if parliament declines again, they'll have to issue an explanation that judges would accept. (Silvana González' guilt is not in question, given that parliament fined her some €10,000 for her offences.) Good news update (perhaps) Followers of this newsletter will remember the ongoing case of Ursula von der Leyen’s refusal to share her text messages in the Pfizergate affair. As Alexander Fanta wrote in a recent op-ed in the Guardian, “the commission’s secrecy around its communications is so fiercely guarded that it is now defending its refusal to make the texts available in the EU court.” And now that court has scheduled a ruling in this case – we’ll find out 14 May if the court sides with transparency or secrecy. PS. Integrity Watch EU published a major update last week, where you can see lobby meetings held by over 1000 more commission officials. If you come across any good examples of EU institutions dealing with transparency (or failing to!), let us know! And stay tuned for our next newsletter coming in early April. For any suggestions, examples, or complaints, email alexander.fanta@ftm.nl, esn@euobserver.com or schumann@investigate-europe.eu. View email in browser EUobserver.com ASBL · Rue de la loi 155 · Brussels 1040 · Belgium