The Council of the EU has denied public access to documents relating to the Digital Markets Act. The reasoning is remarkable: The Council is afraid that disclosure would lead to a level of tech lobbying that would undermine the decision-making process. This comes at a time where tech is outspending all other sectors in EU lobbying.
The journalist research network Investigate Europe has requested public access to documents reflecting the position of EU Member States on the draft Digital Markets Act. The request was made to the Council of the EU, which is the EU’s law-making body representing the governments of all Member States. It was based on Regulation 1049/2001, which governs the public right of access to documents of the EU institutions. The Council found that 28 documents were in scope of the request, but granted only partial access to 10 documents and refused overall access to 13 of them. Just five documents were disclosed in full.
Access denied to nearly half of the relevant documents? Can they do this?
The Regulation allows EU institutions to refuse access to documents relating to an ongoing decision-making process where disclosure would seriously undermine this process, unless there is an overriding interest in disclosure. The Council has refused access on exactly that basis. The Council, inter alia, argued that the 13 documents contain first preliminary comments and requests for clarification and that their release would likely put the final choices Member States will make at a later stage into question.
And – this is where it gets really interesting – the Council also said that full disclosure could lead to
“an unprecedented lobbying on the side of systemic online platforms, including those from third countries”.
Lobbying to seriously undermine the EU’s decision-making process?
This seems to be exactly what the Council is concerned about: That too great insight into the exchange of thoughts and views of EU Member States would lead to a level of lobbying from online platforms that would in turn undermine the entire process.
This fear of the Council comes more or less at the same time as the publication of a study showing that tech is now the biggest lobby sector in the EU, outspending the traditional lobbying giants of pharma, fossil fuels, finance, and chemicals. Unsurprisingly, Google, Facebook, Microsoft and Apple are the biggest tech lobbyist in Europe by spending.
Where from here?
With regard to lobbying in general, the reasoning of the Council will further encourage the (many) voices which criticize the scale of tech lobbying. At the same time, it indicates that Member States might be somewhat tired of all those lobbying efforts and have the feeling they need to hold their cards closer to their chests. Going forward, and to address concerns like the one of the Council, this could mean “less lobbying is more” for tech companies.
In the meantime, Investigate Europe has complained to the European Ombudsman, who published a case summary on 8 September and has requested the documents from the Council for its own review, which is how all of this became public in the first place. Already a win for Investigate Europe, I guess.