Introduction

The European Union represents a complex and extensive network of institutions within and outside which it co-operates a large number of interests. Although the dispute between private and public interest is present on a daily basis, their collision is especially noticeable in period of political, social and, in this case, related health crisis. During these social crises, some institutions may (un)justifiably fail to fulfil their duties under the law, which requires an active role of the regulator. This especially refers to those circumstances when we do not have a precise legal regulation and a definition of public interest. Therefore, in this paper we examine the activities and mechanisms of the European Union Ombudsman and the position of such an institution in mediation between the executive branch of the European Union and civil society organizations. The aim of the paper is to present a corrective factor formulated through the regulatory body at times when the executive refuses to provide the public-intentionally or unintentionally-with information of public interest.

Constitution of the European Union Ombudsman

The European Union Ombudsman was established by the Maastricht Treaty in 1992 or by the Treaty on European Union, but it began its work in 1995. Although in the late 1970s there was an initiative to form an institution at the level of the supranational community, there was no political will for its introduction or necessity, given the presence of national ombudsman offices. However, the constitution of the European Union as a new legal entity by the Maastricht Treaty and the establishment of European Union citizenship naturally produced such necessity. For implementation, there was now "general awareness and political acceptance of the institution" (Erkkilä, 2020, p. 146). While the new citizenship of the European Union was firmly tied to nationality or, in other words, "there is no EU citizenry without the citizenship of a member state" (Knežević-Predić, 2013, p. 18), the new supranational legal order required a supranational controller.

According to the characteristics and duties, the Ombudsman of the European Union, unlike the older Swedish counterpart, belongs to the Danish model. There are basically two differences between them. The first is that the Danish Ombudsman has no control over the judiciary, unlike his Swedish counterpart. The second is that the lack of judicial control in the Danish model is compensated by control over the work of ministers (Christensen, 1961, p. 1106). One of the main reasons for the wider application of the Danish modelintroduced by the institutional reform of 1953-is found in the deviation from judicial control, which threatened to jeopardize the independence of the third branch of government. After its application in Scandinavia, the institution was constituted throughout Europe, but also in the countries outside the European continent; more precisely, there was a process that falls under the term "Ombudsmania" (Milkov, 2003, p. 231). The system of a classical ombudsman implies an independent appeal body whose task is to monitor the work of the entire state administration, point out certain irregularities in that work, and finally make a proposal-to eliminate or correct procedures of maladministration-which is not binding even when an appeal is justified (Satyanand, 1999, pp. 3-4).

Over time, the definition of national human rights institutions by the United Nations has broadened the interpretation of the ombudsman's responsibilities. Based on the definition of national human rights institutions as "a body which is established by a Government under the constitution, or by law or decree, the functions of which are specifically designed in terms of the promotion and protection of human rights" (Reif, 2004, p. 82), it was not difficult to imagine adding human rights duties to a highly, legally qualified and independent institution that frequently interacts with citizens. Therefore, unlike the characteristics of the classic ombudsman system that did not include the issue of human rights, the current Ombudsman is grasped as "an institution for the protection of human rights and a unique mechanism of democratic control over the administration" (Nastić, 2019, p. 490). In addition to making better control of the European Union administration and protection of human rights, the establishment of the European Union Ombudsman had an additional role in bringing remote institutions closer to citizens, increasing the transparency of decision-making and the overall legitimacy of the system. In this regard, the Ombudsman helps the institutions of the European Union to receive feedback on the current quality of the administration and the capacity for its further improvement (Pino, 2011, p. 433).

The legal position of the European Union Ombudsman is determined by the Treaty on the Functioning of the European Union and one article of the Charter of Fundamental Rights of the European Union. Based on the consolidated version of the agreement document, the Ombudsman is mentioned in three articles of the agreement, i.e. Articles 20, 24 and 2281. Namely, Article 228, Paragraph 1 regulates the ombudsman's jurisdiction over the administration and clarifies exceptions to control. The European Parliament appoints the European Union Ombudsman, who during his/her term of office receives complaints from citizens, other natural or legal persons currently residing in a Member State of the European Union. This body initiates an investigation and finally reacts if during the investigation it notices improper conduct of the administration and institutions of the European Union, except for the Court of Justice of the European Union (Ministry of European Integration [MEI]; Republic Secretariat for Legislation [RSZ], 2019, p. 146). Exceptionally, the Ombudsman can respond to a complaint and initiate an investigation into the work of a judiciary, but only in administrative matters (Gordanić, 2019, p. 22). It is thus clear that without direct judicial control, the European Union Ombudsman belongs to the Danish model family. In addition, it should be noted that the European Union Ombudsman can only act when a complaint related to an irregularity concerns the services of the European Union, but not when it comes to complaints against national or lower levels of government of the Member States. The Ombudsman's mandate persists for five years2 or lasts as long as the mandate of the European Parliament and at the end of each year, he/she submits an annual report to it. Paragraph 3 of the same Article (228) regulates the independence of the institution and the incompatibility of functions. It states that the Ombudsman will not perform his/her function under the influence of other political entities and that he/she will not engage in an additional profession or activity for the duration of the existing one. Additionally, the ombudsman's independence was strengthened in 2000 when his budget became separated from the European Parliament's budget (Davinić, 2013a, p. 190).

The Charter of Fundamental Rights of the European Union mentions the Ombudsman in Article 43, Chapter 5 on the Rights of Citizens. However, the articles on which the mentioned article relies are more important and these are Article 41, on the right to good governance, and Article 42, on the right of citizens to access documents. These two articles expand the competences of the Ombudsman because, on the one hand, they determine the good administration of the European Union as the right of its citizens while, on the other hand, they enable natural and legal persons free access to documents of the European Union institutions. The duties of the European Union Ombudsman are regulated by the 2008 Statute of the European Ombudsman, elaborating in more detail the procedural issues: the manner of filing a complaint, the investigation procedure, and the deadlines for individual procedures. Finally, the European Parliament-despite difficult negotiations with the European Commission-confirmed the adoption of a new statute for the Ombudsman on 23 June 2021 with greater authorizations and more precisely defined rules (European Parliament, 2021). The new Statute indicates that the European Parliament has significantly strengthened its position vis-à-vis other institutions and, in this regard, views the European Union Ombudsman as an extremely important administrative control agent. The first Ombudsman of the European Union was Finn Jacob Söderman, in two mandates, from 1995 to 2003. He proposed the adoption of the European Code of Good Administrative Behaviour in 2001 at the initiative of European parliamentarian Roy Perry. He dealt with the establishment of a new institution at the supranational level, resolving the issue of bad governance and laying the groundwork for what would later become the main principle of the European administration. His successor was Nikiforos Diamandouros from 2003 to 2013, to be followed by Ombudswoman Emily O'Reilly who is currently serving her second mandate.

Non-transparent agreement of the European Commission: Commercial versus public interest

Although the Ombudsman is not institutionally designed to address the democratic deficit or existing institutional arrangements, the body can preserve the democratic capacity of EU institutions and further enhance their institutional development, through cooperation with citizens and civil society organizations in resolving disputes, advisory institutional remedies, and reporting to the European Parliament and by raising visibility and independently directing public attention to certain shortcomings of the administration. One of the interesting examples was the case of insufficiently transparent lobbying (Gordanić, 2019, p. 27). At that time, the Ombudsman stated that it was not enough to publish the schedule of meetings of the President of the European Council with registered lobbyists, but also to record as much information as possible, such as basic data on lobbyist activities, meeting schedules, and potential topics for discussion. Insisting on the proper and open work of the entire administration over time has given the Ombudsman of the European Union an attribute "champion of transparency" (Davinić, 2013b; Michel, 2018).

The first of the "champions", Jakob Söderman, criticizing the Council of the European Union, pointed out the importance of transparency for the decision-making process.

 „To me, transparency involves three elements: the processes through which public bodies make decisions should be understandable and open; the decisions themselves should be reasoned; as far as possible, the information on which the decisions are based should be available to the public. (…) I would go further and say that transparency is an essential part of democracy. It is obvious that the debate and adoption of laws should be carried out in public. I know of no legislative body that claims to be democratic and which adopts legislation behind closed doors – except the Council of the European Union” (Söderman, 2001, pp. 1-2).

Later, his successor Nikiforos Diamandouros confirmed the words of his predecessor in a similar manner.

 "As I said at the beginning of my remarks, transparency is not an end in itself. It is rather a means to end. And the end cannot be other than contributing to the deepening to the rule of law and to the strengthening of democracy in the EU, in the process hopefully (re)gaining citizens' trust" (Diamandouros, 2012, pp. 7-8).

A simple reformulation is that there is no and cannot be democracy behind closed doors, as well as that transparency is a means in its service. However, unlike Söderman's previous emphasis on the closedness of the Council of the European Union, we are dealing with the question of when another important institution in the form of the European Commission, fails to meet the norms of open administration. The Research Centre "The Corporate Europe Observatory" or, as defined by the Ombudsman, a civil society organization (O'Reilly, 2021) which works to disclose the privileged influence of lobbyists in policy-making in the European Union, filed two complaints to the Ombudsman. Formally, these are two separate complaints from the Research Centre, but the European Union Ombudsman treated them in joint cases when initiating an investigation and making decisions. The first reason for their unification in the investigation is technical, expressed in the fact that the Research Centre withdrew both requests addressed to the European Commission on 8 January 2021 and dispatched two complaints to the Ombudsman on the same day, i.e. on 11 January 2021. The second and more important reason concerns the nature of the case because the submitted complaints refer to public access to information regarding the purchase of vaccines by the European Commission and on the other hand they were sent by the same subject. Accordingly, the Ombudsman initiated both cases on 22 January 2021. The first complaint concerned access to the agreements with pharmaceutical companies for the agreed procurement of European Commission vaccines, while the second one concerned access to supporting documents during negotiations, such as meeting notes or progress reports (Hickey, 2021a, p. 1).

Prior to the emergence of the Coronavirus, the European Union's health strategy involved strengthening the capacity of national health sectors and ultimately, strengthening cooperation between other member states in the field. With the emergence and spread of the virus in Europe, the institutions of the European Union are beginning to consider taking a broader role in health policy. That is why in June 2020, the European Commission proposed a strategy for the production and distribution of vaccines, which-according to their interpretation-should have achieved three goals. The first was to determine the effectiveness and efficiency of the vaccine. The second was to provide promptly a certain number of doses for each Member State. The third implied an equal opportunity for everyone in the European Union to afford a vaccine at a reasonable price (European Commission, 2020a, p. 2). In order to effectively achieve the second and third goals, these concerned the distribution and equal access to vaccines, it was previously necessary to establish agreement among member states on their purchase. The European Commission has found a solution in Article 4, Paragraph 5, Item (b.) of the Regulation "2020/521" on the activation of emergency aid on the occasion of the outbreak of the COVID-19 pandemic. Paragraph 5 lists all forms of emergency assistance, while Item (b.) states the possibility for the European Commission to make procurement on behalf of member states, based on a prior agreement with them. Given the potential expenditure of resources, time, and a large number of legal and other difficulties in contacting each member state individually on potential procurement, the European Commission has offered the possibility to be the unifying representative of the member states in the negotiations (Bartolazzi & Sciacchitano, 2021, p. 3). Such a strategy relied on pre-emption agreements or abbreviated APAs (Advance Purchase Agreements) of the European Commission with pharmaceutical companies. The agreements on the right of pre-emption imply the purchase of a certain amount of vaccines beforehand, which would allow the European Union to finance part of the initial costs of producers in advance, while in return it would increase the volume and speed of vaccine production (European Commission, 2020b, p. 2).

Before addressing the Ombudsman as a complaint body, the Research Centre filed two requests to the European Commission. The first request was for access to APAs and the second one for all reports and correspondence between the Vaccines Procurement Steering Committee and the Joint Negotiation Team with representatives of pharmaceutical companies on 15 September 2020.

In the first request "GESTDEM 2020/5437", on 2 October of the same year, the European Commission postponed the answer to the Research Centre, which was scheduled for the next 15 working days. At the end of the month, on 30 October, the European Commission noted that in the first case, the subject of the request at that time was only one APA signed with the pharmaceutical company Astra Zeneca. In the filed request, the representative of the "Observatory for Corporate Europe" Olivier Hoedeman pointed out that the norms of transparency were taken over by the Treaty of Lisbon, that they require the EU institutions to approach citizens through open work and that, according to the use of public money in vaccines procurement, publishing agreements is in the public interest. The danger of hiding the details of the agreement was especially emphasized due to the endangerment of trust not only in the institutions of the European Union but also in the vaccination process (European Commission, 2020c, p. 2). The European Commission did not accept the first request to make the agreement publicly available, stressing that such a procedure would jeopardize the commercial interest of the pharmaceutical company and that the Research Centre does not have adequate arguments in favour of the prevailing public interest. According to the European Commission's negative response, the disclosure of the agreement would allow Astra Zeneca's competitors-with whom the European Commission was negotiating the procurement of vaccines at the time-to obtain market-leading information (European Commission, 2020c, p. 4). From the viewpoint of the European Commission, the benefits of a publishing agreement for the citizenry of the European Union would not outweigh the potential harm that publication could produce to the company's commercial interest. Support for such an attitude is found in Regulation "1049/2001" on public access to European Parliament, Council, and Commission documents, which states that the European Union institutions will refuse to grant access to documents that would jeopardize the protection of 1) commercial interest of a legal or natural person 2) court proceedings and 3) investigation or inspection, but with the exception in case of overriding public interest (European Council). The main argument of both parties in the dispute was the effect of the (non)prevailing factor of public interest concerning the commercial interest of the company "Astra Zeneca".

A simple answer to a different interpretation of the public interest is the question of theoretical formulation and definition of the concept of the prevailing public interest in the European Union. According to Sorauf, there are five interpretations of the public interest. The first form is expressed through the common interest of the majority within the community. The second is identified with the group interest, so in that situation, there may be a competitive conflict of interest. Thus, we are rather speaking about special interests, according to which the interest of workers would be to increase social welfare and improve production conditions. The third is a kind of moral imperative, that is, it represents generally accepted values in society. The fourth level out the various relevant interests, but it depends on whether the interpreter finds the public interest in the balancing result or in the balancing process itself. In the fifth, which is the set of all interests of various social groups and individuals in society, the public interest is so fragmented that it cannot be politically articulated (Wyatt, 2020, p. 689). In short, Wyatt believes that the public interest in the European Union is best expressed through the fourth concept of balancing the various relevant interests. On the other hand, the Court of Justice of the European Union has failed to define what a constitutive element of such a public interest is (Wyatt, 2020, p. 692). It remains general and even unclear on which foundation the public interest of the European Union is based and in which situations the general interest can prevail over individual or special interests as shown in the given examples. For that reason, determining the presence of the prevailing public interest is easily left to the European administration.

The negative response to the first request did not force the "Observatory for Corporate Europe" to immediately file a complaint to the European Union Ombudsman. As early as 12 November, the Observatory submitted a confirmatory application to the European Commission, which could be submitted within 15 working days if the original application was partially or completely rejected (European Council; European Parliament, 2001, p. 3). Paragraph 3 of the same article defines that when the European Commission receives a repeated request, it has a period of 15 working days to respond to the repeated complaint or to extend the response for the same number of working days in case of more extensive documentary material. The intention of the Research Centre was for the European Commission to revise its decision and allow, if not already in full, free access to most parts of the agreement document while commercially sensitive information could remain hidden within the text (Hoedeman, 2020). Due to the lack of time to revise the entire request on 3 December 2020, the European Commission extended the deadline for response to 4 January 2021 (Hoedeman, 2020). Then European Commission responded on 8 January that no agreement had been reached on the request made by the representative of the organization while avoiding to state a potential deadline for a final response or subsequent notification. Having exhausted all available requests, the Observatory for Corporate Europe was eventually forced to file a complaint to the European Union Ombudsman due to an unexplained and undefined date of revision of the European Commission's decision.

The second request of "GESTDEM 2020/5436" for access to the corresponding documents, mainly reports and correspondence, was not specifically considered. Unlike the first request, in which the European Commission recognized the object of the request, in the second one there was an evident constant delay in the possibility of any consideration of the case. If the European Commission did not extend the response to the request with additional deadlines, then it failed to provide a response within the additional deadlines. Again, the Observatory submitted a confirmatory application and the response was extended until 18 December, with the final statement of the European Commission that, like in the first case, "internal consultations are still ongoing" (Hoedeman, 2021a). Thus, cases "2020/5436" and "2020/5437" under investigation by the European Union Ombudsman became "85/2021/MIG" and "86/2021/MIG".

Conduct of the European Union Ombudsman in combined cases “85/2021/MIG” and “86/2021/MIG”

Immediately after the opening of the investigation on 22 January 2021, the Ombudsman of the European Union Emily O'Reilly sent a letter to the European Commission. It briefly explains the previous correspondence of the two parties, the requests of the Research Centre as well as the negative response of the European Commission to submit the requested documents. The Ombudsman requested that-based on the present and expressed public interest-the European Commission issue a confirmatory decision for both repeated requests by 11 February 2021 at the latest. At the end of the letter, O'Reilly noted that in the meanwhile, the European Commission had published a reduced version of the agreement signed with "X" and praised the possibility of doing the same with the agreement that is the subject of the dispute (Hickey, 2021b, p. 2). The European Commission replied to the Ombudsman on 17 February 2021 that institution was aware of all delays produced in accessing documents, which was the cause of several factors.

On one side the Commission explained, there were a large number of participants involved, a situation which presumably required the harmonization of attitudes to protect the commercial interest. On the other hand, the subject matter was sensitive and complex, the documentation required more commitment and a special approach. At that time, the European Commission considered that the greatest public interest was present in quicker and simpler procurement and distribution of vaccines to the member states (European Commission, 2021a, p. 3). The Commission explained that the previously submitted agreement marked "X" was with the company "CureVac", and in addition, it published two more agreements with the companies "Astra Zeneca" and "Sanofi" (European Commission, 2021a, p. 3). The request "GESTDEM 2020/5437" has been fulfilled, with the indication that in the following period, the European Commission will publish APAs with the future contracting parties. However the request "GESTDEM 2020/5436" remained under processing due to the explanation of the European Commission that corresponding documents are over 320 units (European Commission, 2021a, p. 1), the assessment which will require additional consultations and negotiations with third parties (European Commission, 2021a, p. 4). Although not the subject of the dispute, the Research Centre has meanwhile submitted another request under the number "GESTDEM 2021/(0)559", which only differed from "GESTDEM 2020/5436" in the request for correspondence from representatives of the European Commission in the whole process (European Commission, 2021b, p. 3). In its reply of 15 March, the Commission noted that the number amounted now to 365 registered documents with the newly attached request (Hoedeman, 2021a). Ombudsman Emily O'Reilly closed two related cases on 12 May 2021, with several important estimates to end the investigation. The first one is that in the response of the European Commission, a commitment to increase transparency could be noticed, which is present in the reduced-published versions of the agreement. The second one is that the deadline of 15 days is too short to process over 300 requested documents, especially when we have in mind the European administration's primary focus on resolving the health crisis (O'Reilly, 2021). Therefore, the Ombudsman assessed that there was no justification for further extension of the investigation.

Conclusion

Although the APAs were published, until June 2021, there were no supporting documents of correspondence and reports from the meetings. On 3 June, the Research Centre forwarded a new letter to the European Commission, i.e. Director of the Health and Food Safety Service (DG SANTE), Sandra Galina, to whom all requests were sent. The letter stated that after the 11th week-since the last response in March-the European Commission had not sent any response regarding the 365 documents it recognized in the request (Hoedeman, 2021b, p. 2). As early as 9 June 2021 the European Commission sent 76 of 365 documents, as the first processed batch of the total number (Hoedeman, 2021a). The Ombudswoman of the European Union should not have closed the case "GESTDEM 2020/5436" because, although the agreements were published, the same could not be said for the accompanying documentation. Another problematic aspect of Ombudswoman O'Reilly's conclusion lies in her light labelling of the European Commission as an institution that strives for transparency. The European Commission reacted only after the Ombudsman's letter, while before that it called for the protection of commercial interests and explicitly rejected the possibility of making the agreement public. In the case of "GESTDEM 2020/5436", European Commission did not even find the object of the request, only to announce, in the Ombudsman's answer, that it was over 320 documents.

What can be considered both a positive and a negative aspect of cases "85/2021/MIG" and "86/2021/MIG" is a quick response from the European Commission to both the Ombudsman and the Research Centre, but only after a letter from the Ombudsman to European Commission. Such a reaction indicates that the involvement of the Ombudsman in the investigation is not exclusively of a formal nature. At the same time, it shows that the institutions of the European Union are often unwilling to cooperate without pressure, and the mediation of the Ombudsman in more cases requires additional time for a deeper commitment to each case individually. For future research, the institutional question of defining the public interest and when its presence plays an overlapping role over commercial interest remains significant. Otherwise, a continuous collision of institutions is to be expected, especially in times of political, economic, health, and social crises.