European Ombudsman
Related documents
1. The complaint concerns an application for public access to documents under Regulation (EC) No 1049/2001[1], submitted to the European Commission by the 'Pharmaceutical Group of the European Union' (PGEU).
2. The complainant requested access to a study concerning Community regulations on the pharmacy sector in the European Union, which was carried out for the Commission by a private economic research institute called ECORYS.
3. The complainant's initial application for public access was addressed to the Commission's Internal Market and Services Directorate-General (DG MARKT), which first denied access to the study and subsequently failed to reply to the complainant's letter that renewed its application. On 26 October 2007, the complainant made a confirmatory application to the Commission's Secretariat-General.
4. On 28 November 2007, the Commission's Secretariat-General refused to grant the complainant access to the study. It did so on the basis of Article 4(3), first subparagraph of Regulation (EC) No 1049/2001, which provides that:
"[a]ccess to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."
5. On 18 December 2007, the complainant turned to the Ombudsman.
6. The Ombudsman opened an inquiry into the following allegation:
The Commission failed to act in accordance with Regulation (EC) No 1049/2001 in rejecting the complainant's confirmatory application for access to documents on the basis of Article 4(3), first subparagraph.
7. On 31 January 2008, before the Ombudsman opened his inquiry, the Commission published the ECORYS study on its website[2]. The complainant expressly stated in the complaint that it wanted to pursue the complaint, in order for the scope of Regulation (EC) No 1049/2001 to be clarified, even if the final version of the study were to be made public before the outcome of a potential inquiry by the Ombudsman. The Ombudsman concluded that, irrespective of the publication of the said report, the case brought by the complainant merited assessment. He therefore opened the present inquiry.
8. In his letter opening the inquiry, the Ombudsman requested the Commission to clarify in its opinion whether the publication of the ECORYS study in the meantime was due to the fact that the relevant decision(s) had been made and, if this were the case, to specify their subject-matter and (non-confidential) content.
9. On 14 March 2008, the Ombudsman forwarded the complaint to the Commission. On 9 July 2008, the Commission provided its opinion, which was forwarded to the complainant with an invitation to make observations. The complainant submitted its observations on 17 July 2008.
Arguments presented to the Ombudsman
10. The complainant supported its above allegation by using essentially the following arguments:
11. In its opinion, the Commission first stated that the fact that an infringement policy with regard to pharmacy services exists cannot preclude it from taking decisions concerning the future development of such a policy. As the complainant was informed in the Commission's reply to its confirmatory request, the study was expected to "significantly contribute to the strategy the Commission will pursue with regard to infringements and the general policy concerning pharmacy services." Until the completion of the study, the Commission had pursued a complaint-driven infringement policy with regard to certain restrictions in certain Member States. Furthermore, before the study was completed, it did not have a general overview of all the restrictions existing in every Member State and the study could therefore have had a substantial impact on a decision that had not yet been taken. For instance, it could have had an impact on a decision to widen the regulatory scope of the infringement policy, or on a decision to move from a complaint-driven infringement policy to an infringement policy based on investigations taken on its own initiative. It could also have had an impact on a decision regarding the most appropriate instrument regarding this matter.
12. With regard to the time the study was published, the Commission stated that the date of publication coincided with the date of its decision to open new infringement proceedings against two Member States. Furthermore, it stated that the opening of those two new infringement proceedings was a result of the Commission's revised policy. Moreover, the reason for the date of publication was that, following the completion of the study, a period of thorough assessment and extensive discussion on its content within the Directorate-General concerned was necessary to make a preliminary evaluation of its potential impact on the policy in this area.
13. As regards the harm that the disclosure of the study would have caused to the Commission's decision-making process, had it been disclosed at the time of the complainant's confirmatory request, the Commission stated that it would have been drawn into a fruitless debate on the merits of the study and its results before its services had had an opportunity thoroughly to assess the study. The Commission argued that such a debate would have undermined its ability to focus on measures to be taken in defence of the public interest, namely, the efficiency and quality of pharmacy services. In this regard, the Commission stated that the prime objective of the PGEU is to defend private interests. This does not always coincide with the Commission's duty to protect the public interest.
The Ombudsman's assessment
First issue: the existence of a "decision" and a "decision-making process"
14. The Ombudsman recalls that the overall purpose of Regulation (EC) No 1049/2001, as stated in recital 4 of its preamble, is to "give the fullest possible effect to the right of public access to documents". Furthermore, as recognised in the case-law[4], and as appears from recital 1 of the preamble to Regulation (EC) No 1049/2001, this Regulation reflects the intention expressed in the second paragraph of Article 1 of the Treaty on European Union to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizens.
15. It follows from the settled case-law that, in view of the objectives pursued by this Regulation, the exceptions to the right of public access to documents set out in its Article 4 must be interpreted and applied strictly[5].
16. According to Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001:
"Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."
17. With regard to the interpretation and application of Article 4(3), recital 11 of the preamble to Regulation (EC) No 1049/2001 states that:
"In principle, all documents of the institutions should be accessible to the public. However, certain public and private interests should be protected by way of exceptions. The institutions should be entitled to protect their internal consultations and deliberations where necessary to safeguard their ability to carry out their tasks [...]"
18. In light of the above, the Ombudsman does not consider that the scope and application of Article 4(3) is necessarily limited to decision-making processes which lead to legally binding decisions issued to individuals or for the administration's own organisation.
19. Nevertheless, it is clear that the exception remains subject to the above-mentioned principle of strict interpretation and application. It follows from this principle that the terms adopted by the Community legislator for this exception - "decision" and "decision-making process" - imply a high degree of specificity. The limited scope of Article 4(3) is clearly reflected in the wording of the exception, which does not generally refer to possible future or hypothetical decisions, but to "the" decision of the institution itself that has not yet been taken. Therefore, a proper application of this provision requires that, in its reply to an application for public access to a document, the institution adequately identifies the concrete and specific decision that it envisages taking and gives sufficiently clear information on the expected time-line for the decision-making process.
20. The institution's invocation of the exception here concerned cannot, in principle, be considered legitimate unless, at a minimum, its reply to the applicant seeking public access gives clear and understandable information on:
21. Such specificity in the reasoning is not only required in order to respect the principles laid down in the case-law cited above. It is also of utmost and obvious importance to enable the applicant meaningfully to seek redress - by complaining either to the courts or to the Ombudsman - following the institution's decision, and, ultimately, for the reviewing bodies to be able meaningfully to carry out their assessment.
22. In the present case, the Ombudsman cannot, for the following reasons, find that the Commission has complied with the above requirements.
23. In its decision on the confirmatory application, the Commission refused access to the study requested on the basis of Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 and put forward the following reasoning:
"The Commission services are analysing this study and have not reached any final conclusions as regards the orientations they may propose to their authorities in the matter concerned. It is expected that the ECORYS study may significantly contribute to the strategy the Commission will pursue with regard to infringements and the general policy concerning pharmacy services [...]"
24. The Commission failed to give the applicant clear and understandable information on the kind of decision-making process concerned; the form and kind of decision that the Commission, at the relevant moment, anticipated adopting; which services or organs of the Commission were expected to adopt the decision; and what the anticipated time was for the adoption of the decision.
25. With regard to its opinion, submitted in the present inquiry, the Ombudsman does not consider that the Commission has compensated for the shortcomings in its decision on the complainant's confirmatory application. The Commission has still not, in any clear terms, described or made reference to a 'decision' that it presumably adopted. It states that it opened two new infringement proceedings, and that this was a result of the revised policy. However, it provides no information on whether this 'revised policy' should be understood to constitute or encompass the relevant 'decision'. There is also no reference to any date on which the (presumed) 'decision' was adopted.
26. In light of the above, the Ombudsman finds that the Commission failed to provide valid and adequate grounds for its refusal of the complainant's confirmatory application. This constitutes maladministration and the Ombudsman will therefore make a critical remark below.
Second issue: the grounds invoked to demonstrate a real harm to the decision-making process
27. The Ombudsman recalls that, as regards the institution's obligation to assess whether the "disclosure of the document would seriously undermine the institution's decision-making process", the relevant case-law of the Community courts has established a principle, according to which the risk that the interest protected by the exception will be undermined must be reasonably foreseeable and not purely hypothetical[6]. Furthermore, the institution's assessment on the possibility to grant access to the requested document, or to parts of it, must be based on a concrete and individual examination of the document[7]. Moreover, the institution's assessment must be visible from the reasons it puts forward for rejecting access to the document requested. In addition, the fulfilment of the obligation to state reasons depends on the circumstances of the case[8].
28. In the present case, the Ombudsman considers, for the following reasons, that the Commission has not complied with the above-mentioned standards of giving reasons, laid down by the Community courts.
29. In its reply to the confirmatory application, the Commission stated that "[d]isclosing [the content of the ECORYS study] at this stage before any internal decision on the policy implications of the study has been taken would seriously undermine the Commission's decision-making process by exposing the Commission and its services to undue external pressure."
30. The Ombudsman cannot find that this statement complies with the above-mentioned requirements. The Commission's reference to "undue external pressure" is void of any clear and reviewable content. The Commission's statement provides no information as to (a) who would exercise the pressure; (b) how that pressure would be exercised; and (c) in what way this pressure would seriously undermine its decision-making process.
31. With regard to its opinion in the present inquiry, the Commission added the consideration that it would have been drawn into a "fruitless debate" on the merits of the study and its results before its services had had an opportunity to thoroughly assess that study. The Commission then explained that that debate would have "undermined" its ability to focus on measures to be taken in defence of the public interest, namely, the efficiency and quality of pharmacy services.
32. The Ombudsman cannot find that these considerations and statements in any way compensate for the above-mentioned deficit in the Commission's statement of reasons. The Commission's considerations are again void of any reviewable content and stand out as being purely hypothetical. The Commission has provided no information on who would have drawn it into the "fruitless debate", nor how this would have happened or why the Commission would - apparently against its own will - have been "drawn into" such a debate. Furthermore, there is no indication as to how such a "debate" would in this case have seriously undermined the Commission's ability to focus on the measures to be taken in the field here concerned.
33. In light of the above, the Ombudsman considers that the Commission failed to provide valid and adequate grounds for its decision to refuse disclosure of the document on the basis of Article 4(3), first subparagraph. This failure constitutes an instance of maladministration and the Ombudsman will therefore make a relevant critical remark below.
On the basis of his inquiries into this complaint, the Ombudsman makes the following two critical remarks:
1. Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001 can be applied for a limited time, until the relevant decision has been taken. The proper application of this provision requires that, in its reply to an application for public access to a document, the institution must adequately identify the concrete and specific decision it anticipates adopting and give sufficiently clear information on the expected time-line for the decision-making process. In the present case, the Commission failed to adequately identify the concrete and specific decision and decision-making process, prior to which public access to the requested document could have been validly refused, had the other requirements for applying the exception concerned been complied with. In particular, the Commission failed to provide information on the kind of decision-making process; the form and kind of the relevant decision; the services of the Commission that were foreseen in order to adopt that decision; and the anticipated time for its adoption. This constitutes maladministration.
2. It follows from the established case-law of the Community courts that the risk that the interest protectable by the exception of Article 4(3) be seriously undermined must be reasonably foreseeable and not purely hypothetical and that this must be visible from the institution's statement of reasons for rejecting public access to the document requested. In the present case, the Commission failed to provide an adequate explanation of the reasonably foreseeable risk that the interest in its ability to carry out its tasks in the course of the decision-making process concerned would have been seriously undermined, had the document requested been disclosed at the time of the Commission's reply to the complainant's confirmatory application. This constitutes maladministration.
The complainant and the Commission will be informed of this decision.
P. Nikiforos DIAMANDOUROS
Done in Strasbourg on 5 March 2009
[1] 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, OJ 2001 L 145, p. 43.
[2] The ECORYS study is available under the following link: http://www.ecorys.com/index.php?option=com_content&task=view&id=596&Itemid=247
[3] According to Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001,
[4] Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Turco v Council and others, judgment of 1 July 2008, not yet published in the ECR.
[5] Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Turco v Council and others, judgment of 1 July 2008, not yet published in the ECR; Case C-64/05 P Sweden v Commission and others, judgment of 18 December 2007, not yet published in the ECR; Joined Cases C-174/98 P and C-189/98 P Netherlands and van der Wal v Commission [2000] ECR I-1 and Case T-211/00 Kuijer v Council [2002] ECR II-485.
[6] Case T-211/00 Kuijer v Council [2002] ECR II-485; Case T-194/94 Bavarian Lager v Commission [2007] ECR II-4523; Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Turco v. Council and others, judgment of 1 July 2008, not yet published in the ECR.
[7] Case T-174/95 Svenska journalistförbundet v Council [1998] ECR II 2289; Joined Cases C-174/98 and C-189/98 P Netherlands and Vander Wal v Commission [2000] ECR I-1; Case T-211/00 Kuijer v. Council [2002] ECR II-485; Case T-84/03 Turco v Council [2004] ECR II-4061; Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121; Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Turco v Council and others, judgment of 1 July 2008, not yet published in the ECR.
[8] Case T-105/95 WWF UK v Commission [1997] ECR II-313; Case C-41/00 Interporc v Commission [2003] ECR I-2125; Case T-204/99 Mattila v Council and Commission [2001] ECR II-2265. See also Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Turco v Council and others, judgment of 1 July 2008, not yet published in the ECR.
