EXCLUSIVE: The European Commission is facing a likely maladministration investigation after refusing five non-governmental organisations (NGOs) access to secret Transatlantic Trade and Investment Partnership (TTIP) documents.

The NGOs have complained to the European Ombudsman Emily O’Reilly. No final decision has yet been made on whether to open an investigation. But EURACTIV understands the complaint satisfies all the requirements for a probe to be launched.

Sources told EURACTIV an investigation would give the Ombudsman scope to make specific recommendations to complement her recently completed own initiative report on TTIP transparency.

The NGOs argued the executive ignored transparency obligations under the Aarhus Convention, which grants the public rights to environmental information from authorities.

The Convention, an international pact which the EU has signed, must be considered in requests for TTIP documents that relate to the environment, the complaint by ClientEarth, the European Federation of Journalists, Friends of the Earth Europe, Corporate Europe Observatory and the European Environmental Bureau, said.

In January, the EU’s highest court quashed a lower General Court decision, which would have allowed NGOs to force a review of EU institutions’ decisions in a number of environmental cases. The NGOs had invoked the Aarhus Convention.

The complaint said the Commission’s refusal to provide documents ignored a different European Court of Justice ruling in July. European judges stated that the public should have access to institutional documents and that power to refuse access should be an exception.

The judges ruled documents related to international activity, which would include TTIP, are not automatically exempt from EU transparency requirements.

Read>>TTIP documents could be made public after EU Court ruling

The Commission were wrong to use exceptions for “international relations” and “protection of the decision-making process” in the EU’s Access to Documents Regulation, the NGOs’ complaint said.

It also failed to consider properly the public interest in transparency, failed to be transparent, and failed to respond in a timely manner, in relation to the document requests. EU officials blamed the delay on the breadth and scope of the requests.

#TTIP is a game changer & needs to live up to high standards of #transparency,says Emily O’Reilly: http://t.co/HhVbprIETQ #EurMove — European Ombudsman (@EUombudsman) January 29, 2015

ISDS

The requests were for EU positions, papers and reports for the controversial Investor-State Dispute Settlement clause (ISDS), a mechanism that allows companies to take governments to international arbitration tribunals.

Read>>ISDS decision delayed to end of TTIP talks

Read>>Special Report: TTIP and the Arbitration Clause

Other requests were for documents about US-EU regulatory cooperation, and the energy, chemical, food safety, and sustainable development sectors. Regulatory cooperation is an issue being discussed in Brussels this week during the eighth round of TTIP talks.

Read>>EU, US negotiators mull concrete steps for TTIP

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Trade Commissioner Cecilia Malmström has said papers on regulatory coherence and sustainable development would be published after the current round of talks, once discussed with the EU Council and Parliament, and after they had been shared with the US.

The NGOs also demanded the release of the Commission’s negotiating mandate for the EU-US trade deal in their original request. That mandate was finally declassified in October.

Read>>TTIP negotiating mandate finally declassified

Disgraceful

Paul de Clerck, head of Friends of the Earth Europe’s economic justice program, said the NGOs asked for the documents a year ago, but the Commission refused to disclose most of them. The public was entitled to know what was being traded away on their behalf and needed important documents to influence the deal, he said.

“It’s disgraceful that the Commission still refuses to make this public, or even list what documents exist,” he added.

Our GIANT Trojan horse will protest #TTIP in at Schuman, Brussels, 10:30, Feb 4. Join us! http://t.co/LDgmAhUkuY pic.twitter.com/gjKCAOhI5U — Friends of the Earth (@foeeurope) January 26, 2015

Commission trade spokesman Daniel Rosario said, “Once the Ombudsman opens an inquiry, the Commission will – as we usually do – cooperate and reply.”

The Commission treated each request for documents on a case by case basis and in accordance with EU law, he said. “Each time we […] check if these documents can be released and under what conditions. In certain exceptional cases we don’t release the documents, but this has to be justified. There is a limited number of exceptions defined by the regulation [on access to documents],” he told EURACTIV.

“We have cooperated with the EU Ombudsman regularly on TTIP and other trade matters. Ms O’Reilly actually recognised our efforts to increase transparency and understands our limitations. The Commission […] is happy to work closely with her office, in defining further ways to enhance transparency in trade negotiations,” he added.

Maladministration

Last week, O’Reilly told EURACTIV she had received a number of complaints regarding TTIP and was considering whether to proceed with inquiries into them. She had earlier given a speech about TTIP to the European Movement International in Brussels.

The Ombudsman, an independent body, probes maladministration allegations about the European institutions. These can cover abuse of power, lack of transparency and other irregularities.

She tries to reach a “friendly solution” between complainant and the institution. This can include compensation. While she cannot force the institution to comply with her recommendations, they do exert significant influence.

As a last resort, she can close an investigation with embarrassing criticism of the institution concerned.

Own initiative report

O’Reilly decided to open her own initiative probe into TTIP transparency in July last year. She recognised that the EU institutions have made a “considerable effort” to promote transparency and public participation concerning TTIP.

Read>>EU Ombudsman demands more TTIP transparency

But she has demanded more disclosure from the Commission and the EU Council over the trade talks, which have been dogged by accusations of secrecy and suspicions that big business is having too much influence on negotiations.

It was not enough to keep certain documents secret, just because US negotiators did not want them made public, she said in her ten recommendations to the executive.

O’Reilly wants more public access to consolidated EU-US negotiating texts. US negotiating documents are not public. These common texts are the closest MEPs can come to seeing them. They can only be viewed in dedicated reading rooms by members of the European Parliament’s trade committee.

In November, the Commission undertook to make these “EU restricted” papers available to all MEPs and to restrict fewer documents. Malmström has said that the EU could only publish its own documents. It was up to the US to decide what they do with their papers, she said.

The Commission was asked to respond to the recommendations, which also called for a more proactive transparency policy and enhanced transparency of TTIP meetings, by 6 March this year.

It is not secret. It’s on our website. http://t.co/Fj5Xv0NVtf @MalmstromEU — EU TTIP Team (@EU_TTIP_team) February 2, 2015

Last month, the executive, which has long argued that the TTIP negotiations are the most transparent trade talks in history, published eight negotiating documents. But documents regarding market access, quotas and tariffs were too sensitive to be made public, Malmström said at the time.

Read>>TTIP papers published as EU Ombudsman demands more transparency

The Commission also runs a dedicated TTIP website and Twitter account, and holds media briefings on the negotiations. It also provides more information about the negotiating process with the European Parliament than required under the Lisbon Treaty.

Transparency deadlock

Revisions to the EU transparency regulation, which includes the right of public access to documents, have been deadlocked for about six years. MEPs view the proposals as a backwards step, but the Council of Ministers is fiercely opposed to their amendments.

Embarrassing court defeats for the European Commission and Council, and public calls for more open negotiations over TTIP, threw the spotlight on the rules over public access to EU documents in October.

The Ombudsman, MEPs and activists have called on the new Juncker Commission to break the deadlock and push through long-delayed reform.

Read>> Deadlocked EU transparency reform finds new impetus