Easy does it: pressing the right buttons in public access to documents of the EU

Abstract

This article makes two claims regarding what is relevant in 2022 to the future of Regulation 1049/2001. The first is that an about-turn in the case law of the Court of Justice of the European Union (CJEU) has partly altered the formal scope of the EU policy concerning public access to documents (PAD) from document to information (PAI). This change in scope affects documents included in digital databases or other documents held in digital form but not the acquis regarding printed-on-paper documents. Second, we observe an uncomfortable stasis currently affecting both the EU judiciary and the Ombudsman. On the one hand, the judiciary remains imprisoned, without an alternative, within the bounds of insufficient remedial depth, i.e., concerning the action for annulment. Conversely, regarding the Ombudsman’s role, classical recommendations have proved insufficient to drive EU access policy. Interestingly, in reaction to suggestions that binding powers be considered for the Ombudsman, even the current head of this institution demurs. Such a proposal carries an inherent serious risk of cognitive dissonance between the EU framework and national frameworks.