• EU member states and the European Commission negotiated behind closed doors on how to spend the Covid-19 recovery fund’s 723.8 billion euros. Journalists from across the bloc requested that the Commission provide insight into those discussions. But even though it pays lip service to the importance of transparency, the Commission is refusing to disclose hundreds of documents.

Hans-Martin Tillack, Peter Teffer

On 15 October 2021, European Commission President Ursula von der Leyen made a promise to Emily O’Reilly, the European Ombudsman. ‘You can rest assured of our commitment to ensuring the transparency of the Recovery and Resilience Facility’, von der Leyen wrote, ‘as we share your assessment that full ownership by EU citizens is a prerequisite to ensure its success.’

Von der Leyen was referring to the EU’s 723,8 billion euro Covid-19 recovery fund. Created in July 2020, the Recovery and Resilience Facility is a fund of unprecedented size, with a specific share for each member state. Almost half of the money, some 338 billion euros, will be in the form of grants; the rest is available as optional low-interest loans.

To get access to the funds, EU member states have had to submit ambitious plans. Some of these plans contain controversial public reforms, but most member states’ national parliaments have not been involved in drafting them.

How will the money be spent, and will it actually help achieve the promised goal of building more resilient, modern and climate-friendly economies?

To find out, Follow the Money has assembled a pan-European team of experienced investigative journalists under the #RecoveryFiles moniker. Already however, members of the team have faced delays, obstacles or outright obstruction when trying to exercise their European right to access to documents related to the fund. While it pays lip service to the value of transparency, the European Commission is refusing to disclose hundreds of documents, using arguments deemed ‘absurd’ or ‘sloppily elaborated’ by experts.

First, some context. To make sure that the funds aid in making European economies more resilient, member states agreed that disbursements would be linked to a system of progress monitoring.The money is not wired to member states automatically: each member state has to submit a plan, outlining what to do with their share of the billions, and which reforms they would introduce to make their economies more robust.

The European Commission has the job to evaluate these proposals. But who evaluates the evaluators?

In July 2021, Hans-Martin Tillack, the German member of the #RecoveryFiles team, requested access to all documents on the evaluation of the German plan, which will unlock 25,6 billion euros. It took the Commission 15 days to get back to him, only to finally answer that he should be more specific.

When Tillack responded by asking for a list of all available documents on the evaluation of the German plan, the Commission said it was unable to provide said list without ‘the consultation of relevant Member States’.

Tillack then complained to European Ombudsman Emily O’Reilly, after which Commission president Ursula von der Leyen made her aforementioned transparency pledge in a letter to O’Reilly.

Consequently, Brussels officials did change their tone, offering lists of documents the Commission has, and transmitting parts of the files. When journalists of the #RecoveryFiles team appealed against decisions to withhold certain files however, the Commission exceeded the allowed 30 working days to process these appeals on multiple occasions, arguing that they ‘had not yet finalised internal consultations’. In one case, a Commission official admitted that the Commission just did not have sufficient staff to reply on time.

The Commission should have expected there would be great public interest in the recovery fund, says Helen Darbishire, executive director of the campaign group Access Info Europe. ‘They must know that many people will ask for it, they should be ready for this, they should allocate resources into transparency.’

Journalists and other citizens should be able to control how the money is being distributed and spent, Darbishire adds. ‘If we do not have accountability, we’ll have scandals, because there will be misspending sooner or later. And that will damage public trust, which is damaging European democracy. If those funds are planned to save European democracy, transparency is clearly a key to doing that.’

Ombudsman O’Reilly expressed a similar sentiment, calling the Commission evaluation documents on the German plan ‘of significant public interest, relating to unprecedented measures the EU is taking in the context of a global crisis.’

In spite of von der Leyen’s transparency pledge to O’Reilly, the experiences of several journalists collaborating in the #RecoveryFiles project remain mixed to say the least.

Take the case of Romania, which is set to receive 30 billion euros. In August 2021, #RecoveryFiles team member Attila Biro asked for documents relating to the evaluation of the Romanian program. The Commission’s Recovery task force replied on November 19: the Commission would refuse to disclose 89 documents, arguing that doing so would threaten the ‘climate of mutual trust’ with the Romanian authorities and ‘strain the working relations’ between Brussels and the Romanian capital.

According to the EU official, the Romanian authorities opposed disclosing a further 168 documents. And they were not alone. In the case of Denmark, the Commission denied disclosure of 35 documents using the same argument: it ‘would strain the working relations between the European Commission and the Danish national authorities’.

This reflex stems from an old conception of the EU as a ‘diplomatic club’, rather than a legislative body, says Helen Darbishire. ‘The idea of straining the relationship is ridiculous because you cannot use the concept of international relations inside the EU. But in their minds, it’s still the Commission negotiating with the member state.’

All in all, our team submitted requests for access to documents regarding the plans of 15 member states. In all cases, the Commission opposed disclosure to all or at least part of the documents, or did not reply yet.

One request revealed the avalanche of files submitted to Brussels. Marcos García Rey, the Spanish journalist of the #RecoveryFiles team, was told by the Commission that his request ‘appears to be very broad’. As one of the major recipients of recovery fund grants (some 70 billion euros in total), Spain had ‘submitted more than 2,200 files covering approximately 25,000 pages of costing evidence underpinning the claims presented in the plan’, according to the Commission.

When asked whether all those 25,000 pages have been read as part of the assessment of the Spanish plan, and whether they were all necessary, a Commission spokesperson said: ‘We can confirm that a significant amount of time was dedicated to this exercise, over the course of several weeks, involving multiple members of staff.’ She refused to provide exact figures.

When the Commission said the amount of files was simply too large, the #RecoveryFiles journalists often asked for a list of which documents existed, to help them decide which seemed most relevant. Sometimes the Commission provided such a list, sometimes it did not. In many cases, the process is still ongoing.

Another important variable: the time period covered by a request. In several cases, for example in relation to Germany’s plan, the Commission refused access to documents from the period before the national plans were officially submitted – exactly when some of the most important discussions between officials in Brussels and the ones in the national capitals took place.

The Commission cannot flat-out deny citizens access to documents: in principle, EU citizens have a right to see Commission documents. An EU institution is only allowed to deny disclosure if publishing the requested documents would undermine a specific public interest.

The EU’s regulation on access to documents specifies the possible exceptions the Commission can use. For example, the Commission is allowed to deny access if release would ‘undermine the decision-making process’ of an institution.

The Commission frequently made use of exactly that exception in relation to requests from #RecoveryFiles journalists. In the case of a request for documents relating to Hungary’s and Poland’s recovery plans, this made some sense: the Commission has not approved the plans yet. ‘Disclosure of the documents requested would undermine the protection of the decision-making process of the Commission, as it would reveal views and policy options which are currently under consideration,’ said the Commission in both cases.

But the Commission used the same argument for documents on plans that have already been approved. In the case of Slovenia, for example: ‘The disclosure of the internal and/or confidential considerations laid down in the requested documents would seriously undermine the independence and objectivity of the decision-making process’, the Commission wrote in December 2021 — almost six months after it had endorsed the Slovenian plan.

What’s more: EU institutions can only deny access on the grounds of protecting the decision-making process, if they can also argue that doing so outweighs the benefit to public interest served by publication of the document.

In other words, even if the decision-making process is undermined, the documents would have to be released if the public interest of transparency is greater. Neither in its response to the request regarding Slovenia’s plan, nor in its reply to our Dutch team member Peter Teffer, the Commission mentioned if it had carried out such a balancing exercise — let alone what the outcome was.

Päivi Leino-Sandberg is a professor of Transnational European Law at the University of Helsinki, and an expert on the EU’s access to documents regulation. She notes that for those institutions wanting to use the exception on the decision-making process, the EU’s documents regulation makes a clear distinction between matters for which a decision have been taken, and those that have not.

‘In situations where the decision has been taken, the scope of documents protected is more limited compared to the first category,’ says Leino-Sandberg. Only documents that include ‘opinions for internal use as part of deliberations and preliminary consultations’ can be withheld after a decision has been made.

Meanwhile, the Commission seems to argue that documents in a wider category — not just ‘opinions for internal use as part of deliberations and preliminary consultations’ — should be kept confidential until all stages of the Recovery and Resilience Facility – payment, monitoring, assessment – have concluded.

The facility’s lifetime is until the end of 2026. ‘That’s a loooong time, and concerns entirely separate decision-making processes,’ says Leino-Sandberg.

Leino-Sandberg also takes aim at the Commission’s referral to minutes as ‘internal documents’, as if doing so ends any debate. ‘Unlike the Commission seems to propose, no category is automatically excluded from its scope,’ says Leino-Sandberg. ‘Disclosure should be considered on the basis of substance and harm from disclosure.’

She is backed up by Dutch postdoctoral researcher Maarten Hillebrandt, who works at the same university. Hillebrandt looked at the Commission’s reply regarding the Dutch plans and noticed that the Commission in fact does not give any reasons to withold disclosure. ‘[The Commission] is referring to a risk, without explaining why that risk should arise,’ says Hillebrandt. ‘As a legal researcher, I would describe this as a sloppily elaborated justification.’

Regarding the Commission’s argument that keeping the requested documents confidential would safeguard its independence and objectivity, Leino-Sandberg thinks that, in fact, the opposite is true. ‘We all know that, keeping in mind the sums of money involved, the Commission will be under huge political pressure from member states. I believe that transparency would help the Commission to safeguard its objectivity and independence, by making it visible that it has done a proper job and not given in to that pressure.’

The Commission also refused access to a number of documents on the evaluation of the German plan, arguing that their release could lead to ‘speculations’ and subsequently even to ‘risks to the financial stability of Germany.’

Germany, the economic giant in the heart of Europe, threatened because of access to some documents? An ‘absurd argument’, says Berlin-based lawyer and freedom of information expert Christoph Partsch.

Regarding other files relating to the German plan, it was the German government itself that, in reply to a consultation request from Brussels, requested the documents to be withheld. ‘Disclosure would undermine the protection of the public interest as regards international relations’, the German government argued. But Leino-Sandberg emphasizes that member states do not have an absolute veto in the matter, and that the Commission can reject arguments from member states. ‘The Commission makes the ultimate assessment itself. It cannot hide behind any member state, since it is responsible for taking the final decision.’

Some #RecoveryFiles team members also filed access to documents requests to national governments. The experiences there were equally mixed.

The governments of Finland, Denmark and Sweden, for example, released considerable numbers of files. The government in Helsinki released more than 1,000 documents, mostly memos, presentations and e-mails. But the size of the trove obscures what is missing: The Finnish national plan was prepared by a coordination group appointed by the Prime Minister. The government released 111 documents from the group, but the group had kept no minutes of meetings and the agendas are very vague (e.g. ‘preparation of the national plan: process, timetable and guidelines’). There are also no minutes of video conferences or calls between Helsinki and Brussels.

The Chancellery in Berlin, under the new chancellor Olaf Scholz, refused access to any documents on the preparation of the German plan because of ‘international relations’ that would have to be protected. The German Ministry of the Economy at least released some documents that shed an interesting light – on the secrecy of the preparation of the whole German plan. Apparently, it was in a surprise move that Finance Minister Olaf Scholz and then Chancellor Angela Merkel had claimed responsibility for the drafting of the German plan, in a meeting of the leaders of the coalition parties CDU, CSU and SPD on 25 August 2020.

The result seemed unspectacular, though. The fund money for Germany was mainly earmarked in order to refinance an older German stimulus package which, among other things, was supposed to help the mighty German car industry. How the details of this plan were hammered out with the Commission, the German government refuses to disclose.

In Slovenia, the ministry for Development and European Cohesion Policy (SVRK) was in charge of drafting the plan. It held several meetings with stakeholders, yet in response to a request for documents, said it has no papers related to those meetings whatsoever. It also suggested that we contact other ministries, like the Finance ministry. Those ministries referred us back to the SVRK.

It can always get worse. In Hungary, our participating journalist filed an Freedom of Information request to the office of prime minister Viktor Orbán on 2 October 2021. She has not even received an acknowledgment of receipt, let alone access to the requested documents.

And even in France, where the ministry of Economy proactively published details on the French plan at an early stage, our freedom of information request, sent on 22 November 2021, has so far been met with deafening silence. Our questions about what actually happened behind the scenes remain unanswered.

• Interview with Helen Darbishire by Marcos García Rey. The #RecoveryFiles investigation is supported by the IJ4EU fund.

sursa foto deschidere: Consiliul European