European Ombudsman
1. The complainant is a non-profit environmental law organisation based in London and Brussels. It monitors the respect of the prohibition of drift nets in the Mediterranean Sea provided by EC Regulation 894/97 of 29 April 1997 laying down certain technical measures for the conservation of fishery resources ('Regulation 894/97')[1].
2. The complainant discovered that the European Commission had initiated infringement proceedings against France[2] for using prohibited drift nets in violation of Regulation 894/97. On 3 April and 8 May 2008, the complainant wrote to the Commission's Directorate-General for Maritime Affairs and Fisheries ('DG MARE') and requested (i) access to the letter of formal notice and the reasoned opinion addressed to France, (ii) information as to whether the Commission had initiated any similar proceedings against Italy on the same grounds, and, if that was the case, (iii) access to the letter of formal notice and the reasoned opinion addressed to Italy.
3. On 13 May 2008, DG MARE replied that it had indeed initiated infringement proceedings against Italy[3] and that it was preparing to bring an action before the Court of Justice.
4. On 14 May 2008, DG MARE refused the complainant's request for access to the letters of formal notice and the reasoned opinions sent to France and Italy in the two infringement proceedings (the 'requested documents'). In doing so, DG MARE invoked the exceptions laid down in Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents ('Regulation 1049/2001'), in particular the protection of court proceedings and of the purpose of investigations[4].
5. On 2 June 2008, the complainant submitted to the Secretary-General of the Commission a confirmatory application (the 'confirmatory application') for access to the documents the Commission had sent to the French and Italian authorities regarding (i) the use of drift nets prohibited in the Mediterranean sea by Regulation 894/1997, as amended, and (ii) the lack of sufficient measures to monitor, inspect and supervise fishing activities provided by Council Regulation (EEC) 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy[5] and by Council Regulation (EC) 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy[6].
6. In its confirmatory application, the complainant took the view that, on the one hand, letters of formal notice and reasoned opinions do not fall under the exceptions of Article 4(2) of Regulation 1049/2001 invoked by the Commission. In this regard, the complainant first argued that such documents do not form part of court proceedings. They are rather aimed at determining whether European Union law has been infringed and at avoiding having to go to the Court[7]. Second, the complainant argued that such documents are not part of investigations either, since they are only sent by the Commission when the investigations are over. In any case, according to the complainant, disclosure of such documents would not undermine the protection of court proceedings or the purpose of the investigations, but would rather help to remedy the infringement due to the possible public pressure on the infringing Member State.
7. On the other hand, the complainant submitted that the Commission's refusal to disclose the requested documents did not comply with the United Nations' Economic Commission for Europe's Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 25 June 1998 ('the Aarhus Convention')[8] and with Article 6(1) of Regulation (EC) 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention[9].
8. On 14 July 2008, the Secretary-General of the Commission replied to the complainant confirming DG MARE's initial decision to refuse access to documents (the 'confirmatory decision'). In the confirmatory decision, the Commission took the view that, in infringement cases, in order for it to carry out its task and settle disputes without having to refer them to the Court of Justice, or to reach a friendly solution before the Court's judgment, there has to be a climate of mutual trust between the Commission and the Member States concerned throughout the different stages of the procedure and until the case has been settled. According to the Commission, discussions and negotiations aimed at making France and Italy voluntarily comply with European Union law continued even after the case had been brought before the Court. Therefore, disclosing the requested documents would have adversely affected the Commission's ongoing discussions with the authorities of those Member States and would thus have reduced the chances of reaching a friendly solution before the ruling of the Court of Justice. For the Commission, this would have clearly undermined the protection of the purpose of the investigations, as already established by the Union courts in Petrie[10].
9. Moreover, in its confirmatory decision, the Commission submitted that, for the purposes of complying with the Aarhus Convention, the Commission must apply the provisions of Regulation 1049/2001 and, where applicable, the specific provisions of Article 6 of Regulation 1367/2006[11]. At that stage of the ongoing infringement proceedings, the requested documents were covered by the exception laid down in Article 4(2), third indent of Regulation 1049/2001.
10. The Commission stated that it had examined the possibility of granting the complainant partial access to the requested documents, in accordance with Article 4(6) of Regulation 1049/2001. However, the said documents were covered in their entirety by the invoked exception.
11. Finally, the Commission submitted that the complainant had not proved that there was an overriding public interest in the disclosure of the requested documents. On the contrary, in the Commission's view, the public interest in that case was best served by the "untroubled investigation and negotiations" between the Commission and the national authorities, with a view to solving the existing disputes as soon as possible. In any case, the Commission submitted that the provisions of Article 6(1) of Regulation 1367/2006 invoked by the complainant were inapplicable. In its view, the requested documents did not contain any information relating to "emissions into the environment", but instead referred to investigations into a "possible infringement of Community law"[12].
12. The Commission informed the complainant of the available means of redress against the confirmatory decision.
13. On 5 March 2009, the European Court of Justice rendered its judgment against France concerning the infringements of Union law invoked by the Commission[13]. On 29 October 2009, the Court also rendered its judgment against Italy[14].
14. The complainant turned to the Ombudsman on 14 July 2009.
15. The complainant's allegation and claim initially referred to the Commission's refusal to grant access to the letter of formal notice and the reasoned opinion it sent to France and Italy. On 3 November 2009, the complainant informed the Ombudsman that the Commission had already disclosed the documents concerning France, following the ruling of the Court of Justice in case C-556/07 Commission v France. The complainant expressed its wish to maintain its allegation and claim unchanged, since it considered that the Commission should have disclosed those documents before the Court's ruling.
16. However, the Ombudsman took the view that the complainant's claim had become void of purpose as regards the disclosure by the Commission of the requested documents concerning France. Therefore, the complainant's allegation and claim were dealt with as only referring to the requested documents concerning Italy and rephrased as follows.
The Commission's decision confirming its refusal to disclose the letter of formal notice and the reasoned opinion in relation with infringement procedure n° 1992/5006 against Italy is unwarranted.
The Commission should take a stance on the complainant's arguments and, ultimately, grant it access to the requested documents.
17. The complainant was informed accordingly.
18. On 29 October 2009, the Ombudsman forwarded the complaint to the President of the European Commission.
19. On 3 November 2009, the complainant sent further correspondence to the Ombudsman clarifying its complaint. On 10 December 2009, the Ombudsman forwarded this clarification to the Commisison and informed the complainant accordingly.
20. Following several extensions of the deadline, on 26 July 2010 the Ombudsman received the Commission's opinion, which was sent to the complainant with an invitation to make observations.
21. On 29 September 2010, the complainant submitted its observations on the Commission's opinion. On 5 January 2011, the Ombudsman's services contacted the complainant for further information.
22. In its complaint to the Ombudsman, the complainant emphasised that the Commission's refusal, as put forward in its reply to the confirmatory application, only relied on the exception of Article 4(2) third indent of Regulation 1049/2001 relating to the protection of the purpose of investigations. The refusal did not make any reference to the Commission's additional argument concerning the protection of court proceedings, which it made in the reply to the initial application. The complainant repeated some of its views contained in the confirmatory application (as summarised in paragraphs 6 and 7 above), and took the position that the purpose of the investigations under Article 226 EC was not to ensure the Member States' compliance with European Union law, but to find out whether there was an infringement of such law. Moreover, it argued that, contrary to what the Commission seemed to state in its confirmatory decision, the exception laid down in Article 4(2) of Regulation 1049/2001 aims to protect the purpose of the investigations and not that of the negotiations.
23. In addition, the complainant considered that the Commission did not conduct an examination that was "specific in nature" regarding the applicability of the exceptions established by Article 4(2) of Regulation 1049/2001, nor did it refer to the content of the requested documents. According to the complainant, the Commission simply referred to the category of the requested documents, thereby going against the case-law of the Union courts[15]. Such conduct constituted an error in law, and should result in the decision being annulled[16]. The complainant also argued that the Commission went against the principle that there is no general need for confidentiality in respect of documents concerning interests protected under the exceptions set out in Article 4(2) of Regulation 1049/2001[17], and did not assess whether the disclosure would specifically and effectively undermine the protected interest[18].
24. The complainant also took the view that the Petrie case-law, quoted by the Commission in its confirmatory decision, was not applicable. This was because that judgment was rendered before Regulation 1049/2001 entered into force, at a time when the applicable rules were enshrined in "the 1993 Code of Conduct"[19]. For the complainant, the conditions for applying the exceptions now set in Article 4(2) of Regulation 1049/2001 are narrower[20]. In its view, the Commission failed to duly assess them. It equally failed to assess the existence of an overriding public interest in disclosure outweighing the protection of the purpose of investigations[21].
25. Finally, the complainant argued that, in violation of the Union courts' case-law[22], the Commission failed to provide reasons for refusing partial access to the requested documents and failed to interpret and apply the exceptions laid down in Article 4(2) of Regulation 1049/2001 in a restrictive way[23]. In the complainant's view, by keeping the requested documents secret, the Commission did not establish a climate of trust between itself and the infringing Member States or encourage them to comply with Union law. It rather created a climate of mistrust towards the Commission among European citizens and NGOs and discredited its own initiatives against long-standing non-compliant Member States.
26. In its opinion on the complaint, the Commission briefly replied to the complainant's main arguments, reiterating its views contained in its reply to the confirmatory application. Given that the Court of Justice had in the meantime handed down its judgment in the case brought by the Commission against Italy, the Commission stated that it would release the requested documents it had sent to the Italian authorities in relation to that infringement procedure.
27. In its observations of 29 September 2010, the complainant reiterated some of its previous arguments and disagreed with the conclusions reached by the Commission in its opinion. It stated that, "after having had access to the letter of formal notice and the reasoned opinion concerning France", it maintained its position that there is a public interest in disclosing such documents which overrides the need to protect the purpose of the investigations under Article 4(2) of Regulation 1049/2001.
28. The complainant did not make any reference to the Commission's statement made in the opinion that it would disclose the requested documents concerning Italy in the near future.
29. The Ombudsman notes that the Union has signalled its commitment to grant the widest possible public access to documents containing environmental information by joining the Aarhus Convention[24]. He further points out that the Convention includes provision for a Compliance Committee[25]. The Ombudsman emphasises that the Commission's powers to conduct infringement proceedings against a Member State which does not fulfil its environmental obligations is a powerful instrument that contributes to achieving the purpose of the Convention.
30. In its opinion, the Commission promised that "it would release" the requested documents as a consequence of the fact that the Court of Justice had in the meantime handed down its judgment in the infringement case against Italy.
31. On 19 January 2011, the Ombudsman was informed by the complainant that, six months after the Commission's opinion, it had still not received the requested documents. The Ombudsman’s services, therefore, contacted the Commission. Following the Ombudsman's intervention, on 2 February 2011 the Commission sent the requested documents to the complainant and informed the Ombudsman accordingly.
32. The Ombudsman welcomes the release of the requested documents and, in such circumstances, he does not see any need to take a stance on the Commission's and the complainant's arguments exchanged during the inquiry. Moreover, he does not consider it useful to do so since, on 27 August 2010, the Commission replied positively to the further remark contained in his own-initiative inquiry OI/2/2009/MHZ concerning access to infringement procedure documents.[26]
33. In light of the Commission's release of the requested documents, the complainant's claim has become devoid of purpose and, as a consequence, no further inquiries are justified into this complaint.
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:
No further inquiries are justified into this complaint.
The complainant and the European Commission will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 15 February 2011
[1] OJ 1997 L 132, p. 1.
[2] Infringement case 2003/2210.
[3] Infringement case 1992/5006.
[4] In the original French: "protection des procédures juridictionnelles et des objectifs des activités d'enquête".
[5] OJ 1993 L 261, p. 1.
[6] OJ 2002 L 358, p. 59.
[7] Case C-74/82 Commission v Ireland [1984] ECR-317, paragraph 13; Case C-293/85 Commission v Belgium [1988] ECR-305, paragraph 13; Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23: "the purpose of pre-litigation procedure provided by article 169 (article 226) ... is to give the member state an opportunity, on the one hand, of remedying the position before the matter is brought before the Court, and, on the other hand, of putting forward its defence against the Commission's complaints."
[8] According to Article 4(4) c of the Aarhus Convention, a request for environmental information may be refused if the disclosure would adversely affect: "the course of justice …" The implementing guide of the Aarhus Convention issued by the Economic Commission for Europe of the United Nations interprets this as "an active judicial procedure capable of being prejudiced must be under way". Moreover, according to the same Article of the Aarhus Convention, "a request for environmental information may be refused if the disclosure would adversely affect ... the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature."
[9] "As regards the other exceptions set out in article 4 of Regulation (EC) 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment." OJ 2006 L 264, p. 13.
[10] Case T-191/99 Petrie v Commission [2001] ECR II-3677, paragraph 68: "[i]n the present case, the documents requested are letters of formal notice and reasoned opinions drawn up in connection with investigations and inspections carried out by the Commission. As the Court pointed out in paragraph 63 of its judgement in WWF (cited above in paragraph 59), the Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure. This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State in question regarding the latter's voluntary compliance with the Treaty requirements may continue during the court proceedings and up to the delivery of the judgement of the Court of Justice. The preservation of that objective, namely an amicable resolution of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgement, justifies refusal of access to the letters of formal notice and reasoned opinions drawn up in connection with the Article 226 EC proceedings on the ground of protection of the public interest relating to inspections, investigations and court proceedings, which comes within the first category of exceptions in Decision 94/90."
[11] Article 3 of Regulation 1367/2006 implementing the Aarhus Convention provides that "Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies …" Article 6(1) of Regulation 1367/2006 states that: "1. As regards Article 4(2), first and third indents, of Regulation (EC) No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Community law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment…"
[12] Article 6(1) of Regulation 1367/2006, as cited above, applies "with the exception of investigations, in particular those concerning possible infringements of Community law."
[13] Case C-556/07 Commission v France [2009] ECR I-25.
[14] Case C-249/08 Commission v Italy, judgment of 29 October 2009, not yet published in the ECR.
[15] Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [2006] ECR II-2023, paragraphs 115-118 and Joined Cases C-39/05 and C-52/05 Sweden and Turco v Council and others [2008], not yet published in the ECR: "[a]ccording to settled case-law, the examination required for the purpose of processing a request for access to documents must be specific in nature. First, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception … Second, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a concrete manner and must be apparent from the reasons for the decision ... It is therefore for the institution to assess, first, whether the document requested falls within one of the exceptions provided for by article 4 of Regulation n"1049/2001, second, if so, whether the need for protection relating to the exception concerned is genuine and, third, whether it applies to the whole document." In Joined Cases Franchet and Bye v Commission cited above, paragraphs 116-117, the Court of First Instance held that: "that concrete examination must, moreover, be carried out in respect of each document referred to in the request for access. It is apparent from Regulation n° 1049/2001 that all the exceptions mentioned in article 4(1) to (3) are specified as being applicable 'to a document" ... The court has moreover already rejected as insufficient an assessment of documents by reference to categories, rather than on the basis of the actual information contained in those documents, since the examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents…"
[16] In Franchet and Bye v Commission, cited above, paragraph 130: "Moreover, OLAF did not indicate in the first contested decision whether the risks which it described actually applied to all of the information in those documents. It is apparent from the first contested decision that OLAF based its assessments on the nature of the documents requested rather than on particular information actually contained in the documents in question. This was an error of law requiring the annulment of the contested decision…"
[17] See, by analogy, Turco v Council, cited above, paragraph 57: "the Court of First Instance did not require the Council to have checked whether the reasons of a general nature on which it relied were in fact applicable to the legal opinion whose disclosure was requested. Secondly … the Court of First instance erred in holding that there was a general need for confidentiality in respect of advice from the Council's legal service relating to legislative matters."
[18] Case T-121/05 Borax Europe Ltd v Commission [2009] ECR II-29, paragraph 37, and Turco v Council, cited above, paragraphs 48 and 49: "according to settled case-law, the reasons for any decision of an institution in respect of the exceptions set out in article 4 of Regulation No 1049/2001 must be stated. If an institution decides to refuse access to a document which it has been asked to disclose, it must explain how access to that document could specifically and effectively undermine the interest protected by an exception laid down in article 4 of Regulation No 1049/2001 relied on by the institution."
[19] Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents, OJ 1994 L 46, p.58.
[20] Case T-36/04, Association de la Presse Internationale ASBL (API) v Commission of the European Communities, paragraph 62: "the exception relating to the protection of court proceedings [and investigations], as provided for in the second indent of article 4(2) of ...Regulation [1049/2001], is framed in narrower terms than that set out in the 1993 Code of Conduct. First, refusal to grant access is justified, in the context of Regulation No1049/2001, only if disclosure of the document concerned "would undermine" the interest in question and no longer, as was provided for in the 1993 Code of Conduct, merely if that disclosure "could undermine" that interest. That means that the institution concerned must consider, for each document requested, whether - in the light of the information in its possession - disclosure is in fact likely to undermine one of the interests protected under the scheme of exceptions…"
[21] Association de la Presse Internationale v Commission, cited above, paragraph 62: "Regulation 1049/2001 provides that, even if disclosure of the document requested would undermine protection of the court proceedings in question, access is to be granted if there is an overriding public interest in disclosure. No such provision is made in the 1993 Code of Conduct."
[22] Joined Cases T-391/03 and T-70/04 Franchet and Bye, cited above, paragraphs 117 and 128: "a concrete, individual examination of each document is also necessary where, even if it is clear that a request for access refers to documents covered by an exception, only such an examination can enable the institution to assess the possibility of granting the applicant partial access under article 4(6) of Regulation n°1049/2001 ... [The institution has] to assess specifically whether an exception invoked actually applies to all the information contained'."
[23] Case T-36/04, API, cited above, paragraph 53, confirmed in Turco, cited above, paragraph 36: "as they derogate from the principle of the widest possible access to documents, such exceptions must be interpreted and applied strictly…"
[24] Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters. OJ L 124 of 17 May 2005, p.1.
[25] http://www.unece.org/env/pp/ccBackground.htm
[26] In his own initiative inquiry/decision published on his website (http://www.ombudsman.europa.eu/cases/decision.faces/en/4390/html.bookmark) the Ombudsman made the following further remark: "The Ombudsman considers that it would assist citizens if the Commission, which is aware that public access to infringement procedure documents is not the same in all Member States, could inform citizens that they can gain access to such documents by applying, either to the Commission, or the authorities of the Member State concerned, or both. Furthermore, they could be informed that, if they submit their request for access to such documents to Member State authorities, it is national law which applies. The Commission could include such information on its excellent and citizen-friendly website concerning infringements. The Ombudsman would be willing to assist the Commission in the drafting of this information." In its reply to the further remark, the Commission agreed with the Ombudsman that informing citizens of the possibility to get access to documents related to infringement procedure under national law would enable them to better exercise their rights. However, the Commission pointed out that it is necessary to "avoid creating expectations that such documents would be easily accessible, whereas there may be reasons for withholding them, at least at the point in time when the request is made". In its response, as the EO suggested in his further remark, the Commission included a draft of a text, which it intended to put on its infringements website under the heading "Exercise your rights". The draft informs the complainants that they have a right to apply for access to the documents regarding the infringement proceedings. The complainant can lodge an application for an access either to the European Commission or to the Member State concerned. The Commission informs the complainants that the outcome of such application depends on the handling authority under the applicable law. Moreover, the draft contains information that national law concerning access to documents has not been harmonised. Apart from that, the complainants must bear in mind that their requests will be examined in the same way as those of the other applicants.
