European Ombudsman
This draft recommendation was partly accepted by the Institution
1. Regulation 1049/2001[1] establishes the rules concerning public access to documents held by the European Parliament, the Council of the European Union or the European Commission.
2. On 18 July 2006, the European Environmental Bureau (EEB) submitted to the Commission an application for access to documents under Regulation 1049/2001. The request for access related to documents the Commission had used to formulate an opinion under Article 6(4) of the Habitats Directive[2] relating to the construction of a port in Granadilla (Tenerife, Spain).
3. By letter of 1 September 2006, the Commission refused access to the documents. However, in respect of certain documents, it deferred its decision on the grounds that it was still consulting the Spanish authorities as regards the request for access. The EEB then made a confirmatory application for access on 15 September 2006. The Commission replied by letter of 15 December 2006. The letter identified 19 documents (which it listed in an annex from 1-19). Access was granted to seven of these documents (namely, documents 1, 2, 15, 16, 17, 18 and 19). However, the Commission informed the EEB that, in accordance with Article 4(5) of Regulation 1049/2001, it was consulting with the Spanish authorities as regards granting access to those documents that originated from the Spanish authorities (namely, documents 12, 13 and 14). It stated that it would decide on the potential disclosure of those documents as soon as it received a reply from the Spanish authorities. The Commission also stated that the analysis of the remaining documents (namely, documents 3, 4, 5, 6, 7, 8, 9, 10 and 11) had not yet been finalised and that it would inform the EEB of the results of this analysis as soon as possible. The complainant then turned to the Ombudsman.
4. On 30 January 2007, the complainant submitted, on behalf of the EEB, a complaint to the Ombudsman. In her complaint she alleged that the Commission had:
The complainant claimed that:
5. By letter of 10 April 2007, the Commission sent its second reply to the complainant's confirmatory application. This reply related to 12 documents covered by the complainant's request for access to documents. The Commission granted access to four documents on that list (namely, documents 3, 4, 5 and 7). However, it refused any access to five documents (namely, documents 10, 11, 12, 13 and 14), and only granted partial access to three additional documents (namely, documents 6, 8, 9).
6. The present inquiry therefore only concerns access to documents 6, 8, 9, 10, 11, 12, 13 and 14.[3]
7. The complaint was forwarded to the Commission. Having been granted an extension of the deadline, the Commission submitted its opinion, which was forwarded to the complainant. The complainant also asked for an extension of the deadline, following which she submitted EEB's observations. On 16 May 2008, the Ombudsman made a proposal for a friendly solution to the Commission concerning the complainant's first allegation. Having been granted two extensions of the deadline, the Commission submitted its reply on 21 November 2008. The complainant submitted EEB's observations on 12 February 2009. The Ombudsman's services conducted an inspection of the documents concerned in May 2009.
Arguments presented to the Ombudsman
8. In its opinion, the Commission referred to its letter of 10 April 2007, which contained the full reply to the complainant's confirmatory application of 15 September 2006. In its letter of 10 April 2007, the Commission provided the following arguments for not providing full access to the documents covered by the request for access.
9. The Spanish authorities did not agree to documents 12, 13 and 14 being disclosed. The Commission therefore refused access to these documents on the basis of Article 4(5) of Regulation 1049/2001. In doing so, it referred to paragraphs 57 and 58 of the judgment of the Court of First Instance in Case T-168/02.[4]
10. As regards documents 6, 8 and 9, the Commission relied on the exception set out in Article 4(3), first subparagraph, of Regulation 1049/2001, which states that access to a document drawn up by an institution for internal use, and 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. It argued that the documents were essential for its decision on Spain's request for Community co-financing of the Granadilla project. In its view, disclosure at this early stage of the Commission's decision-making process would seriously undermine this decision-making process. Specifically, it argued that it and its services as well would be exposed to undue external pressure which would put at risk the objectivity of their analysis. It stated that, as is the case with any other public administration, the Commission needed a certain "space to think" with a view to ensuring its ability to carry out its tasks, in the public interest, free from undue external influences. In addition, the documents in question contained assessments of the information provided by the Member State concerned and referred in several parts to the contents of the documents which the Spanish authorities did not agree to release when they were consulted by the Commission.
11. As regards documents 10 and 11,[5] the Commission invoked the exception set out in Article 4(3), second subparagraph, of Regulation 1049/2001, which states that access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken, if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure. The Commission noted that these documents reflected, respectively, the discussions between DG Energy and Transport and other Commission departments with regard to the opinion to be adopted on the basis of the Habitats Directive and recapitulated the positions and opinions of other Commission Directorate-Generals. These views were gathered in order to present them to the Commissioner in charge of the case. The Commission's decision-making procedure required maintaining, within its services, a spirit of confidence and open debate, so as to ensure a coherent approach in the case at hand. The opinions contained in these documents had been drafted specifically for internal use. The authors, when they drafted the documents, never took into account the possibility that they would be disclosed to the public. Hence, disclosure of these opinions would lead to a situation where the Commission's services would be reluctant to express their views freely, thus depriving the Commission of the opportunity to be fully and frankly informed of all aspects of the case and of the consequences of the different options available. Putting these documents in the public domain would, therefore, be seriously detrimental to the decision-making process in other similar cases, since it would seriously affect the independent expression of opinions on the matter and endanger the quality and the solidity of the eventual decision.
12. Finally, the Commission considered that there was no overriding public interest in disclosure. It admitted that in environmental issues there was often a strong public interest in being informed of the facts on the basis of which a decision was taken. It also admitted that such a strong public interest existed with respect to the present case concerning the harbour project, the application of the Habitats Directive, and the opinion adopted by the Commission pursuant to this Directive. However, it rejected the argument that the interest of third parties to assess whether the Commission adopted its opinion on the basis of correct and complete information would amount to a public interest which would justify disregarding the harm that would be caused to the protection of its decision-making process. Access to the documents concerned would not have been decisive as regards the means and possibilities of interested third parties to make their views on the subject-matter known to the Commission. The complainant had had the opportunity to explain to the Commission its positions and views on the project.
13. The complainant pointed out that the exception in Regulation 1049/2001 for internal documents is not absolute. The Commission is required to demonstrate how the disclosure of the documents concerned would seriously undermine its decision-making process. Furthermore, the Commission failed to consider seriously whether the public interest in disclosure overrides its interest in protecting its decision-making process.
14. According to the complainant, the Court of Justice ruled, in case C-321/96,[6] that opinions from autonomous bodies cannot be withheld by the institution with the argument that a final decision has not yet been taken. Accordingly, in the present case, the opinion of the EIB (that is, document 19) should have been released. However, the complainant considers that also the position of other Commission Directorate-Generals should have been immediately communicated to the EEB, and not only after the decision on the Granadilla port had been taken. On the basis of the Commission's argument, no Commission document could ever be released before the final decision has been taken, since all Commission services are part of the Commission. The complainant is confident that the judgment by the Court of Justice in case C-64/05 P, whereby the Court of Justice annulled a Commission decision to refuse access to certain documents it received in the course of a procedure under the Habitats Directive, can serve as a precedent and support the EEB's request for access.
15. The complainant does not understand how the Commission could argue, in its confirmatory reply of 15 December 2006, that the analysis as regards the Habitats Directive had not yet been finalised, when the decision on the project had been taken on 6 November 2006.
16. Furthermore, in its reply to the request for access, the Commission completely ignored that the European Community (EC) has ratified the Aarhus Convention on access to information, participation in decision-making and access to justice in environmental matters. As the Aarhus Convention binds the Member States and the EC institutions, it prevails over secondary EC law. The Aarhus Convention does not give a State the right to object completely to access to documents, as does Article 4(5) of Regulation 1049/2001.
17. The complainant also argues, with regard to third party documents, that even if Article 4(5) of Regulation 1049/2001 allows a Member State to request that a document should not be disclosed, the Member States are not given a veto. It is for the Commission to make its own, independent evaluation as to whether any of the exceptions in Regulation 1049/2001 apply. In addition, it is not justified to accept the argument made by Spain that it opposes access to the documents concerned, without weighing the different interests against each other. Under the Aarhus Convention and Directive 2003/4, Spain would have been obliged to grant access to documents such as the environment impact assessment, studies, examination of alternative ports et cetera, had the EEB made a request for access directly to the Spanish authorities. Accordingly, it cannot be correct to interpret Regulation 1049/2001 as giving Spain the right to veto the access to any document that Spain submitted to the Commission.
The Ombudsman's preliminary assessment leading to a friendly solution proposal
18. Regulation 1049/2001 establishes the principle of public access to all documents held by the Commission, the Council or Parliament, unless the institution to which a request for access is submitted can show that one of the substantive exceptions set out in Articles 4(1) to (3) of the Regulation applies to the request for access. The scope of Regulation 1049/2001 covers documents held by these institutions even if they originate from third parties, including from a Member State.
19. As regards third-party documents, Article 4(4) of Regulation 1049/2001 provides that the institution shall consult the third party with a view to assessing whether an exception in paragraph 4(1) or 4(2) is applicable, unless it is clear that the document shall or shall not be disclosed.
20. Article 4(5) of Regulation 1049/2001 provides that a Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.
Documents originating from Spain
21. As regards the request for documents originating from Spain, Spain had informed the Commission that it did not wish the Commission to grant access to documents originating from Spain. The Commission relied on the ruling of the Court of First Instance in Case T-168/02[7] to refuse access to the documents originating from Spain. In that case, the Court of First Instance had stated that a request made by a Member State under Article 4(5) of Regulation 1049/2001 constitutes an instruction to the institution not to disclose the document in question, However, the Ombudsman noted that the European Court of Justice had, in Case C-64/05 P,[8] overruled, in part, the Court of First Instance's ruling. The Court of Justice held that a Member State's power, under Article 4(5), to request that a document not be disclosed, is delimited by the substantive exceptions set out in Articles 4(1) to (3) of Regulation 1049/2001. The Member State is merely given, in this respect, a power to take part in the Community decision as regards access. Seen in that way, the prior agreement of the Member State referred to in Article 4(5) is not a discretionary right of veto as regards access, but rather a form of assent confirming that none of the exceptions set out in Articles 4(1) to (3) apply.[9] The Member State's intervention does not affect the Community nature of the decision as regards access.[10]
22. When a request is made to an institution for access to a document originating from a Member State, the institution and the Member State concerned are obliged to co-operate in such a way that the relevant rules under Regulation 1049/2001 are effectively applied. In particular, they are obliged to commence, without delay, a genuine dialogue concerning the potential application of the exception laid down in Article 4(1) to (3) of Regulation 1049/2001, while paying attention to the need to respect the time-limits for a decision provided for in Articles 7 and 8 of the Regulation.[11]
23. In the event that, following such genuine dialogue, the Member State concerned objects to the disclosure of the document in question, it is obliged to state reasons for that objection with reference to the exceptions laid down in Article 4(1) to (3) of Regulation 1049/2001.[12]
24. The institution cannot accept a Member State's objection to disclosure of a document originating from that State if: i) the objection is not reasoned; and ii) the reasons are not put forward in terms of the exceptions listed in Article 4(1) to (3) of Regulation 1049/2001. Where, despite an express request by the institution to the Member State to that effect, the Member State still fails to provide the institution with such reasons, the institution must, in the event that it considers that none of those exceptions applies, give access to the document that has been asked for.[13]
25. In the event that the Member State gives a reasoned refusal to allow access to the document in question, the institution is consequently obliged to refuse the request for access.[14]
26. On the basis of Articles 7 and 8 of Regulation 1049/2001, the institution is itself obliged to give reasons for a decision to refuse a request for access to a document. This obligation implies that the institution must, in its decision, not merely record the fact that the Member State concerned has objected to disclosure of the document asked for, but also set out the reasons relied on by that Member State to show that one of the exceptions to the right of access in Article 4(1) to (3) of the Regulation applies.[15]
27. In light of the above, the Ombudsman considered that the Commission's refusal to grant access no longer seemed to be justified given that it relied upon the Spanish authorities' objection to the disclosure of the documents, without referring to, and giving adequate reasons for, the application of any one of the exceptions laid down in Article 4(1) to (3) of Regulation 1049/2001.
Internal documents of the Commission
28. As regards the Commission's refusal to grant access to internal documents of the Commission, the Ombudsman could not accept the Commission's arguments put forward in support of its reliance on the exception of Article 4(3), first or second subparagraph, of Regulation 1049/2001(about the need for a certain "space to think" or for free internal debates). The Ombudsman had already emphasised that upholding such arguments would effectively lead to the conclusion that the institution could, in general, refuse disclosure of any document drawn up for internal use, on the grounds that disclosure would adversely affect its interest in having "free" internal discussions and deliberations.[16] This broad approach clearly cannot be reconciled with the principle of a strict interpretation and application of the exceptions laid down in Article 4 of the Regulation.[17] Further, such a strict interpretation and application applies to the exception provided for in Article 4(3), second subparagraph, which has also been explicitly declared by the Community legislator to apply to requests for access to environmental information.[18] In fact, an endorsement of the Commission's approach would amount to little less than a broad license for non-disclosure of all such documents, in obvious disregard of the intent of the Community legislator which adopted Regulation 1049/2001. Hence, the Commission did not appear to have given adequate grounds for applying the exceptions contained in Article 4(3) of Regulation 1049/2001.
29. The Ombudsman also noted that, as indicated by the Commission, in cases like the present one, there is a strong public interest in transparency as regards the elements on the basis of which it makes its assessment. Even under the very terms of Article 6(4) of the Habitats Directive,[19] the Commission had to give an opinion on whether, in view of the project's negative impact on priority species and/or a priority natural habitat type, there were "imperative reasons of overriding public interest" justifying its implementation. Hence, in this kind of case, there is, in any event, a public interest in disclosure weighing heavily in favour of transparency. Independently of the remarks made in point 28 above, the Commission appeared to have failed to balance this interest properly.
30. In light of the above, the Ombudsman made the friendly solution proposal that the Commission could reconsider its refusal to grant access. To the extent that this refusal concerned documents originating from the Spanish authorities, or Commission documents referring to the content of these documents originating from a Member State, this reconsideration presupposed a consultation with the competent Spanish authorities, under the terms of the Court of Justice's judgment in Case C-64/05 P.
The arguments presented to the Ombudsman after his friendly solution proposal
31. The Commission considered that its decision in relation to the EEB's confirmatory application was legally correct at the time it was taken. It accepted, however, the Ombudsman's proposal for it to reconsider, on the basis of the Court of Justice's judgment in Case C-64/05 P, the refusal to grant access to documents originating from the Member State (documents 12-14).
32. Therefore, the Commission again consulted the Spanish authorities. The Spanish authorities informed the Commission about ongoing court proceedings in the Tribunal Superior de Justicia de Canarias. According to the Spanish authorities, disclosure of the documents would undermine the protection of these court proceedings. Therefore, the request for access is subject to the exception provided for in Article 4(2), second indent, of Regulation 1049/2001 namely, the exception that disclosure would undermine the protection of court proceedings and legal advice. Since the Spanish authorities opposed disclosure and provided reasons put forward in the terms of the exceptions of Regulation 1049/2001, the Commission took the view that it had no discretion and it therefore, once more, had to refuse disclosure.[20]
33. The Commission also agreed to reconsider its refusal to provide access to documents 6, 8 and 9, given that the decision concerning the co-financing of the Port of Granadilla under the next programming period of the Structural Funds (period 2007-2013) had now been adopted. These documents, partial access to which had already been granted, were exchanged between the Commission services in the context of drafting the Commission's opinion in relation to compliance with the Habitats Directive. The documents also served the Commission during the negotiations with the Spanish authorities concerning the financing of the Port of Granadilla through the Structural Funds. The documents in question contain assessments and analysis of the arguments presented by the Member State authorities, as well as opinions and considerations that had to be taken into account in the Commission's decisions. The Commission considered that if such internal preparatory documents were to be disclosed, it would mean that the authors of this kind of notes would, in the future, take the risk of disclosure into account. Such an eventuality would limit their willingness to put forward any critical or controversial views. As a result, the Commission would no longer benefit from the frankly expressed and complete views of its agents and officials and would be deprived of a constructive form of internal criticism, given free of all external constraints and pressures. This would clearly undermine the Commission's decision-making process.
34. Furthermore, disclosure of documents 6, 8 and 9 would create a risk not only that possibly critical opinions of Commission officials might be made public, but also that these opinions could be compared with the final decisions taken by the Commission. If this were done, the institution's internal discussions would be disclosed. That "would risk seriously undermining the decision-making freedom of the Commission, which adopts its decisions on the basis of the principle of collegiality and whose Members must, in the general interest of the Community, be completely independent in the performance of their duties".[21]
35. In addition, to the extent that documents 6, 8 and 9 rely on the documentation provided by the Spanish authorities, the Commission argued that it would be practically impossible to disclose the parts containing the views of the Commission services without disclosing the information originating from the Member State.
36. As regards the existence of an overriding public interest in disclosure, the Commission pointed out that the purpose of the principle of openness is to "enable citizens to participate more closely in the decision-making process".[22] According to the Commission, the EEB and the wider public have actively participated in the discussions concerning the construction of the Port of Granadilla and made their views known in that context. The disclosure of documents 6, 8 and 9 would hardly have an effect on their ability to put their position forward. At the same time, disclosure of documents 6, 8 and 9 would seriously undermine the Commission's decision-making process. The Commission therefore considered that Article 4(3), second subparagraph, of Regulation 1049/2001 prevented further disclosure of documents 6, 8 and 9.
37. As regards documents 10 and 11, the Commission did not consider that any new circumstances warranting the reassessment of its decision had emerged. Contrary to what the Ombudsman suggested in his proposal for a friendly solution, the Commission carried out a concrete harm test and balanced the protected interest against the public interest in disclosure.
38. On the basis of the above, the Commission considered that it could not provide any more access than had already been granted in its replies of 15 December 2006 and 10 April 2007.
39. The complainant considered that the Commission had made an erroneous interpretation of the right to access to documents 12-14, based on the judgment by the Court of Justice in case C-64/05 P. The judgment states inter alia that "Article 4(5) of Regulation 1049/2001 cannot be interpreted as conferring on the Member State a general and unconditional right of veto, so that it could in a discretionary manner oppose the disclosure of documents originating from it and held by an institution, with the effect that access to such documents would cease to be governed by the provisions of that regulation and would depend only on the provision of national law". Furthermore, according to the Court, "the prior agreement of the Member State referred to in Article 4(5) resembles not a discretionary right to veto but a form of assent confirming that none of the grounds of exception under Article 4(1) to (3) is present."[23] According to the complainant, the Court's findings in this regard should be read in conjunction with the case-law concluding that "the mere fact that a document concerns an interest protected by an exception cannot of itself justify application of that exception; the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical".[24] While the Commission argued that disclosure of documents 12-14 would undermine the protection of the Spanish court proceedings, there were no signals that this would be a predictable risk. In addition, the EEB did not consider that disclosure of documents 12-14 could, even hypothetically, damage the court proceedings in question. On the contrary, the information contained therein would help the Tribunal Superior de Justicia de Canarias to make the right decision.
40. As regards the other documents, drawn up by the Commission services, the complainant considered that the Commission merely cited parts of the judgment by the Court of First Instance in case T-403/05[25] without explaining how these conditions apply to the documents in the present case. The Commission has tried to apply doctrine related to competition law, and in particular to merger control, to the present case which concerns an environmental issue. The complainant pointed out that, in environmental matters, the public interest is very high and the access to information principle should be applied in the "broadest and strongest way".
The Ombudsman's assessment after his friendly solution proposal
41. The Ombudsman welcomes the fact that the Commission has taken steps to reconsider the request for access to documents 12, 13 and 14 on the basis of the Court of Justice's judgment in case C-64/05 P.[26] The Ombudsman is not convinced, however, that the Commission has correctly applied the Court of Justice's interpretation of Article 4(5) of Regulation 1049/2001.
42. The Court of Justice underlined, in its judgment in case C-64/05 P, that Article 4(5) of Regulation 1049/2001 does not aim to establish a division between two powers, one national and the other of the Community, with different purposes. Article 4(5) gives the Member State the power to take part in the Community decision. However, the sole purpose of the decision-making procedure under Article 4(5) is to determine whether access to a document should be refused under one of the substantive exceptions set out in Article 4(1) to 4(3).[27] In the Ombudsman's view, the fact that a Member State may be involved in this decision-making procedure should not alter the purpose of the decision-making procedure, and by extension the quality of the eventual decision taken as regards access under Regulation 1049/2001. In sum, the justification provided by the institution holding a document with a view to showing that an exception under Article 4(1) to (3) applies should not be any way less extensive or less convincing when the document in question is a document originating from a Member State. This is supported by the Court's ruling that the Member State is obliged, in accordance with the duty of loyal cooperation set out in Article 10 of the EC Treaty, to act and cooperate in such a way that Regulation 1049/2001, and, specifically, Article 4(1) to (3), are effectively applied.[28]
43. The Court of Justice has further underlined that a Member State's intervention in the context of a request for access to documents does not affect the Community nature of the decision that is subsequently taken by the institution.[29] Nor does a Member State's intervention affect the institution's obligation to provide reasons for its decision to refuse access.[30] It follows, in the Ombudsman's view, that the responsibility of the institution refusing public access to a document in its possession to provide reasons for its decision remains the same regardless of whether the institution has based its decision on a request pursuant to Article 4(5) or if the institution's decision is based solely on its own analysis. This is also understood from the Court's statement that "the institution must, in its decision, not merely record the fact that the Member State concerned has objected to disclosure of the document asked for, but also set out the reasons relied on by that Member State to show[31] that one of the exceptions to the right of access in Article 4(1) to (3) of the regulation applies."[32]
44. It follows from paragraphs 42-43 above that the institution refusing access to a document originating from a Member State has an obligation to verify that the reasons for applying Article 4(1) to (3), put forward by that Member State and used by the institution to reason its decision, meet the required standard. This is also supported by the fact that the Court stated that Article 4(5) requires the institution referring to a Member State's reasons when refusing access to a document also to make sure that those reasons exist.[33]
45. As regards the required standard of reasons for applying Article 4(1) to (3), the judgment in case C-64/05 P provides that these reasons should allow the person who has asked for the document to understand the origin and grounds of the refusal of his request and the competent court to exercise, if need be, its power of review.[34] The Ombudsman notes that the case-law of the Community Courts has already set out the details of the examination to be undertaken (and thereby also the reasons to be provided) by the institution in this regard. As regards the exception to access to documents relating to court proceedings, the Ombudsman considers it appropriate to apply the three-stage examination set out by the Court of Justice in relation to legal advice, since these two categories of documents are both covered by Article 4(2), second indent. The examination should be carried out in three stages. First, the institution must satisfy itself that the document which it is asked to disclose does indeed relate to court proceedings and, if so, decide which parts of the documents are actually concerned. Second, the institution must examine whether disclosure of the parts of the document in question which have been identified as relating to court proceedings "would undermine the protection" of those proceedings. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical. Third, if the institution takes the view that disclosure of the document would undermine the protection of court proceedings, it is incumbent on it to ascertain whether there is any overriding public interest justifying disclosure.[35]
46. In the present case, the Spanish authorities argued that disclosure of documents 12-14 would undermine the protection of ongoing court proceedings. The Ombudsman notes, however, that the Spanish authorities do not appear to have provided, to an extent sufficient to meet the standards established by the Court of Justice (as summarised above in paragraph 45), reasons to show that the exception set out in Article 4(2), second indent actually applies. On its part, the Commission has failed to fulfil its obligations under Article 4(5) by not having verified, through a genuine dialogue[36] with the Spanish authorities, that adequate reasons exist for applying Article 4(2), second indent. Accordingly, the Commission wrongly refused access to the documents in question. This was an instance of maladministration.
Internal documents 6, 8 and 9 of the Commission
47. The Ombudsman welcomes the fact that the Commission has also reconsidered its refusal to provide access to documents 6, 8 and 9. He also recalls that the Commission's refusal to grant access to documents 6, 8 and 9 was originally based on Article 4(3), first subparagraph (whilst its refusal to grant access to documents 10 and 11 was based on Article 4(3), second subparagraph). After taking into account the fact that the decision concerning the co-financing of the Port of Granadilla under the next programming period 2007-2013 of the Structural Funds has now been adopted, the Commission is now refusing access to all the internal documents concerned - Documents 6, 8, 9, 10 and 11 - on the basis of Article 4(3), second subparagraph.[37] The Commission bases its analysis on an interpretation of the ruling of the Court of First Instance in case T-403/05 (hereinafter referred to as the MyTravel case).[38] The Ombudsman does not find the Commission's interpretation convincing.
48. The Ombudsman first recalls that Article 4(3) is intended to protect the internal decision-making process of the institutions. The Commission uses the term "space to think" to describe the protected interest. In certain circumstances, the institution's decision-making ability may be compromised if documents which are immediately and directly to be made use of by the institution in order to adopt a future decision were to come into the public domain before that decision is taken. Such an eventuality could materialise by virtue of the fact that such premature disclosure of documents may lead to undue external pressure being exerted on the institution and/or its services (Article 4(3), first subparagraph).[39] An institution's decision-making ability may also be compromised if internal documents are made public after a decision has been taken (Article 4(3), second subparagraph). However, the danger that an institution's decision-making ability will be compromised is greatly reduced once a decision has been taken. In such circumstances, there is only a limited danger that undue external pressure will be effectively exerted on the institution or its services as a result of public disclosure of the documents. This view is in fact confirmed by the MyTravel case, which, in the Ombudsman's view, must be interpreted as implying that the protection of the decision-making ability after the decision has been taken is limited to certain particular situations.
49. The first particular situation which was taken into consideration in the MyTravel case was that the documents to which access was requested were very exceptional documents. The documents were reports drawn up by an ad hoc working group established by the Commission in the aftermath of the ground breaking judgment by the Court of First Instance in case T-342/99 (hereinafter referred to as the Airtours/First Choice case).[40] The mandate of the ad hoc working group was to analyse the different stages in the administrative and judicial procedures in the Airtours/First Choice case and to propose appropriate conclusions. In accordance with the mandate, the working group was required to examine a number of questions arsing in relation to the Airtours/First Choice case and indicate any possible points of disagreement with the ruling of the Court of First Instance. The questions were:
"(1) Is an appeal against the Airtours judgment appropriate?
(2) Which weaknesses has the judgment revealed, in particular in the administrative procedure leading to the decision?
(3) Which conclusions can be drawn from this case with respect to internal procedures?
(4) Can lessons be learned from any other activity areas of DG Competition?
(5) Which aspects of substantive competition policy addressed in the Airtours judgment deserve further examination in ongoing or future reviews?
(6) Are there implications on other competition cases pending before the Court?"
The mandate of the working group also stated that the report was to be submitted for discussion with the Member of the Commission responsible for competition matters before the expiry of the period for bringing an appeal.[41] Access was also refused to working papers drawn up in order to prepare the report, and to the provisional reports of different sub-groups, which were often reproduced in the report word-for-word.
50. The Ombudsman notes that the internal documents at issue in the MyTravel case contained analysis and criticism by a Commission working group in relation to the actions and policies of the Commission in the context of the exercise of the Commission's prerogatives in the area of merger control. Specifically, the internal documents in question sought to identify errors and weaknesses in the Commission's own policies and procedures in the area of merger control. In the MyTravel case, the Court of First Instance took the view that this process of self-reflection and self-criticism, which the Commission working group was asked to undertake, would be negatively affected by the prospect of those self-reflections and self-criticisms being made public. In addition to self-critical views, the Ombudsman does not exclude that, in line with the MyTravel case law, a risk to an institution's decision-making ability may arise if the institution were to disclose documents containing speculative or controversial views.
51. The second particular situation which was taken into consideration in the MyTravel case was the fact that the documents to which access was requested could be used by DG Competition in the examination of similar merger cases in the future, involving the same sector of activities or the same economic concepts.[42] In this context, the Court of First Instance accepted that there was a reasonably foreseeable risk that the Commission's decision-making process in respect of merger control in general would be seriously undermined if the documents in question were released.
52. The Ombudsman is of the view that, in order for the MyTravel case law to be applied to the documents under consideration in the present case, it would be necessary to provide convincing arguments as to why these documents relate to situations which are analogous to the particular situations which arose in the MyTravel case.
53. The Ombudsman also considers it necessary to draw the Commission's attention to Case T-121/05 (hereinafter referred to as the Borax case),[43] which concerned a request for access to various scientific opinions drawn up for the purpose of preparing legislation. In that case, the Court of First Instance noted that there is always a certain risk associated with all instances of access to documents containing opinions intended for internal use as part of consultations and preliminary deliberations. In sum, as the Court of First Instance noted, there is a risk of deterrence inherent in all instances of access to documents containing opinions intended for internal use as part of consultations and preliminary deliberations. However, according to the Court of First Instance, it cannot be inferred, from the mere existence of a risk, that disclosure of a document will actually have a deterrent effect as regards its author. An interpretation which would imply the automatic application of Article 4(3), second subparagraph, of Regulation 1049/2001 every time a risk of deterrence exists would clearly run counter to the purpose and meaning of that Article. As such, the exception in Article 4(3), second subparagraph, should only apply if it is shown that the risk which exists is such as to undermine seriously the institution's decision-making process.[44] The Court of First Instance also concluded that an argument that there is a risk that opinions will not be expressed freely and frankly cannot be based on mere assertions, but has to be properly reasoned.[45] It is thus clear that the institution holding the document must make a concrete examination of the content of the document in order to evaluate if the nature and intensity of the risk which arises as a result of the public disclosure of the document is sufficient in order to undermine seriously the institution's decision-making process.
54. The Ombudsman considers that, when carrying out such an analysis, the institution should bear in mind that divergent views are not the same as critical, speculative or controversial views. The fact that divergent views may be expressed within an institution during a decision-making process is a completely normal, and, indeed, an expected, state of affairs. This normal state of affairs was known when it was laid down in the Treaty that decisions should be taken as openly as possible and when the preamble to Regulation 1049/2001 was formulated to state that openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy. The fact that disclosure of certain documents would reveal that divergent views existed during the decision-making process, and that these views could be compared with the decision ultimately taken cannot, therefore, alone be used to prove that the public disclosure of those documents would seriously undermine the institution's decision-making process. On the contrary, rather than undermining the quality and integrity of an institution's decision-making process, it is likely that the public disclosure of documents which might contain divergent views would improve the Commission's decision-making process since the prospect of such inter-service consultation documents coming under public scrutiny should work as an incentive to provide better arguments in support of the positions taken.
55. On the basis of the above, and having inspected the documents concerned, the Ombudsman makes the following analysis of documents 6, 8 and 9.
Document 6
56. The Ombudsman concludes that document 6 mainly contains facts and arguments in relation to the Granadilla port project. Document 6 does not contain any (self-) critical, controversial or speculative views, disclosure of which could limit the willingness of its officials to put forward such views. Furthermore, the argument that document 6 could be used in the examination of similar cases involving the same sector of activities, as provided for in the MyTravel case, is clearly not applicable, given that document 6 concerns a unique set of facts, that is, facts concerning a specific project (the Granadilla harbour project) and its impact on a particular Natura 2000 site.
Document 8
57. The Ombudsman concludes that document 8 mainly sets out the questions that will be answered in document 9. Document 8 does not contain any (self-) critical, controversial or speculative views, disclosure of which could limit the willingness of its officials to put forward such views in the future. Furthermore, the argument that document 8 could be used in the examination of similar cases involving the same sector of activities, as provided for in the MyTravel case, is clearly not applicable, given that document 8 concerns a unique set of facts, that is, facts concerning a specific project (the Granadilla harbour project) and its impact on a particular Natura 2000 site.
Document 9
58. The Ombudsman concludes that document 9 mainly sets out technical aspects of the Granadilla port project. Document 9 does not contain any (self-) critical, controversial or speculative views, disclosure of which could limit the willingness of its officials to put forward such views in the future. Furthermore, the argument that document 9 could be used in the examination of similar cases involving the same sector of activities, as provided for in the MyTravel case, is clearly not applicable, given that document 9 concerns a unique set of facts, that is, facts concerning a specific project (the Granadilla harbour project) and its impact on a particular Natura 2000 site.
59. On the basis of the above, the Ombudsman does not consider that the exception to public access set out in Article 4(3), second subparagraph, of Regulation 1049/2001 applies to documents 6, 8 and 9. Accordingly, the Ombudsman concludes that the Commission wrongly refused access to the documents in question, thereby committing an instance of maladministration.
60. As regards the Commission's argument that it would be practically impossible to disclose the views of the Commission's services without disclosing the information originating from the Member State, the Ombudsman notes that the fact that a Commission document refers to information obtained from a Member State is not in itself a ground for exception to access under Regulation 1049/2001. Rather, the Commission would have to justify specifically why such documents should not be disclosed on the basis of the exceptions set out in Article 4(1) to 4(3) of Regulation 1049/2001.
61. Finally, and notwithstanding the above analysis under Regulation 1049/2001, having examined the documents in question, the Ombudsman considers that the public disclosure of document 6, 8 and 9 would be likely to improve the Commission's decision-making process (see paragraph 54 above).
Internal documents 10 and 11 of the Commission
62. The Ombudsman notes that the Commission did not consider that any new circumstances warranted the reassessment of its decision to refuse access to documents 10 and 11. In this regard, the Ombudsman would like to point out, first, that his proposal for a friendly solution, which was that the Commission should reconsider its refusal to provide access to the documents concerned, was made on the basis of a finding that the Commission had not given adequate grounds for invoking the exceptions contained in Article 4(3). Accordingly, the reassessment of its decision to refuse access to documents 10 and 11 should have been made regardless of any new circumstances.
63. The Ombudsman would, however, like to draw the Commission's attention to a new circumstance which has arisen subsequent to the Commission's response to the friendly solution proposal in relation to the interpretation of Article 4(3), second subparagraph, of Regulation 1049/2001. This is the judgment by the Court of First Instance in the Borax case[46] (see paragraph 53 above).
64. Recalling the above analysis of Article 4(3), second subparagraph, (paragraphs 48-53), and having inspected the documents concerned, the Ombudsman makes the following analysis of documents 10 and 11:
Document 10
65. The Ombudsman considers that document 10 does indeed contain views which fall within the framework established by the MyTravel case (namely, the views expressed could be classified as either critical, controversial or speculative). The Ombudsman agrees that public disclosure of such views, even after a decision has been taken, could potentially lead to a situation where the Commission's services would be reluctant to express such views freely. This could deprive the Commission of the opportunity to be fully and frankly informed of all aspects of a case and of the consequences of the different options available.
66. As regards whether public disclosure of document 10 would seriously undermine the decision-making process, the Ombudsman finds that the nature and intensity of the expressed views are such that the Commission's argument, that disclosure would seriously undermine the independent expression of opinions on the matter and endanger the quality and the solidity of the eventual decision, must be sustained as regards document 10.
67. The Ombudsman therefore finds that the Commission was entitled to refuse access to document 10 on the basis of Article 4(3), second subparagraph, of Regulation 1049/2001.
68. The Ombudsman has carefully examined whether there may be an overriding public interest in disclosing document 10. The task involves balancing the public interest in disclosure with the damage which may be caused to the Commission's decision-making process by the public disclosure of the document. The Ombudsman notes that, while document 10 contains important observations, the views expressed in document 10 do not add elements of a substantive nature which are not already in the public domain or which are not reproduced in other documents which, in the Ombudsman's view should be made publicly available. As such, and in light of the reasonably foreseeable risk that disclosure document 10 would seriously undermine the Commission's decision-making process, the Ombudsman is of the view that there is no overriding public interest in disclosure in relation to document 10.
Document 11
69. The Ombudsman concludes that document 11 contains conclusions made on the basis of inter-service consultations. Document 11 does not contain any (self-) critical, controversial or speculative views, disclosure of which could limit the willingness of its officials to put forward such views in the future. Furthermore, the argument that document 11 could be used in the examination of similar cases involving the same sector of activities, as provided for in the MyTravel case, is clearly not applicable to document 11, given it concerns a unique set of facts, that is, facts concerning a specific project (the Granadilla harbour project) and its impact on a particular Natura 2000 site.
70. On the basis of the above, the Ombudsman does not consider that the Commission has provided arguments to show that the exception to access set out in Article 4(3), second subparagraph, of Regulation 1049/2001 applies to document 11. Accordingly, the Ombudsman is of the view that the Commission wrongly refused access to document 11, thereby committing an instance of maladministration.
71. As with documents 6, 8 and 9, and notwithstanding the above analysis under Regulation 1049/2001, the Ombudsman considers that disclosure of document 11 is likely to improve the Commission's decision-making process (see paragraph 54 above).
Conclusions
72. On the basis of the above, the Ombudsman reiterates his view that the Commission wrongly refused access to the documents 6, 8, 9, 11, 12, 13 and 14 for the following reasons:
These constitute instances of maladministration. The Ombudsman therefore makes a draft recommendation below, in accordance with Article 3(6) of the Statute of the European Ombudsman.
73. As regards documents 6, 8, 9 and 11, the draft recommendation reflects the complainant's claim that the Commission should grant access to the requested documents.
74. Given that the Commission may not, as yet, have fully taken into account the Court of Justice's interpretation of Article 4(5) of Regulation 1049/2001, the draft recommendation allows the Commission the opportunity to pursue a genuine dialogue with the Spanish authorities in relation to the request for access to documents 12-14. The Ombudsman therefore considers that it would be premature to deal, at the present stage of the inquiry, with the complainant's claim that the Commission should inform the EEB in writing of the main arguments and points put forward by the Spanish authorities in documents 12-14.
75. The Ombudsman would like to point out that his conclusions in respect of document 10 show that there do exist situations in which the institutions will be justified to refuse a request for access to documents. However, in order to be legitimate, any such refusal has to be accompanied by a detailed account of the reasons for applying an exception in Article 4 of Regulation 1049/2001.
76. The Commission expressed its regret for the delay in handling the EEB's application for access to documents, which was due to the scope of the request and to the complexity of the case. It will do its outmost to respect the stipulated deadlines in future cases. The Commission also deeply regrets the delay in registering the request for access, which was due to the number of requests for access to documents received and the limited resources available to treat them at that point in time.
77. The complainant argued that late registration and late answers to requests are relatively normal practice by the Commission. In the complainant's view, the reason for this appears to be an imperfect organisation of the work, which in itself constitutes a case of maladministration. The Commission's "deep regrets" are not helpful in this regard. According to the jurisprudence of the Court of Justice, an administration may not invoke lack of staff or other internal difficulties in order to justify non-compliance with existing binding legal provisions.
The Ombudsman's assessment
78. The Ombudsman notes that the Commission admits that there was a delay in the registering and handling the EEB's application for access to documents. Such delays constitute maladministration. The Ombudsman also notes, however, that the Commission has expressed its regret for the delays and that it has committed to do its outmost to respect the stipulated deadlines in future cases. The Ombudsman therefore finds no grounds to further pursue this issue at present.
79. The Ombudsman has taken note of the complainant's argument that late registration and late answers to requests are relatively normal practice by the Commission. The Ombudsman addressed, in the past, the problem of the belated registration and handling of requests for access to documents by the Commission.[47] The Ombudsman will continue to monitor, on the basis of complaints submitted to him, the Commission's commitment to respect the deadlines stipulated in Regulation 1049/2001. If provided with indications of a systemic problem within the Commission services in this regard, the Ombudsman will consider opening an own initiative inquiry into the matter.
On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendation to the Commission:
The Commission should provide access to documents 6, 8, 9 and 11.
As regards documents 12-14, the Commission should enter into a genuine dialogue with the Spanish authorities in relation to the request for access with a view to ascertaining, to the required standard, if valid reasons for applying Article 4(2), second indent, exist. If the Commission cannot ascertain that valid reasons for denying access exist, the Commission should grant access to documents 12-14.
The Commission and the complainant will be informed of the Ombudsman's draft recommendation. In accordance with Article 3(6) of the Ombudsman's Statute, the Commission shall send a detailed opinion by 31 October 2009. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.
P. Nikiforos DIAMANDOUROS
Done in Strasbourg on 29 June 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] Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L 206, p. 7. Article 6(4) reads as follows: "If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest."
[3] The documents concerned were numbered differently in the Commission's letter of 10 April 2007. However, for the sake of consistency, the original numbering provided in the annex to the Commission's letter of 15 December 2006 will be kept throughout the decision.
[4] Case T-168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II-4135.
[5] A note from Directorate B in DG ENV dated 10 May 2006 to the Director General of DG ENV; and a note from DG ENV dated 1 June 2006 to Commissioner Dimas.
[6] Case C-321/96 Mecklenburg v Kreis Pinneberg [1998] ECR I-3809.
[7] Case T-168/02 IFAW Internationaler Tierschutz-Fonds gGmbH v Commission [2004] ECR II-4135.
[8] Case C-64/05 P Sweden v Commission and others [2007] ECR I-11389.
[9] Idem, at paragraph 76.
[10] Idem, at paragraph 94.
[11] Idem, at paragraphs 85-86.
[12] Idem, at paragraph 87.
[13] Idem, at paragraph 88.
[14] Idem, cf. paragraphs 50 and 90.
[15] Idem, at paragraph 89.
[16] Cf. Ombudsman's decision on complaint 1434/2004/PB, point 1.22.
[17] Case C-64/05 P Sweden v Commission and others [2007] ECR I-11389, paragraph 66.
[18] See Article 6(1) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, OJ 2006 L 264, p. 13.
[19] See footnote 3.
[20] Case C-64/05 P Sweden v Commission and others [2007] ECR I-11389, paragraphs 44 to 50 and 89.
[21] Case T-403/05 MyTravel Group plc. v Commission, judgment of 9 September 2008 (not yet reported), paragraph 51.
[22] Recital 2 of Regulation 1049/2001.
[23] Case C-64/05 P Sweden v Commission and others [2007] ECR I-11389, paragraphs 75-76.
[24] Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69, and Case T-403/05 MyTravel Group plc. v Commission, judgment of 9 September 2008 (not yet reported), paragraph 33.
[25] Case T-403/05 MyTravel Group plc. v Commission, judgment of 9 September 2008 (not yet reported), paragraphs 51-52.
[26] Case C-64/05 P Sweden v Commission and others [2007] ECR I-11389.
[27] Case C-64/05 P Sweden v Commission and others [2007] ECR I-11389, paragraphs 76 and 93.
[28] Idem, at paragraph 85.
[29] Idem, at paragraph 94.
[30] Idem, at paragraph 89.
[31] The Ombudsman's emphasis.
[32] Case C-64/05 P Sweden v Commission and others [2007] ECR I-11389, paragraph 89.
[33] Idem, at paragraph 99.
[34] Idem, at paragraph 89.
[35] Joined cases C-39/05 P and C-52/05 P Sweden and Turco v Council, judgment of 1 July 2008 (not yet reported), paragraphs 37-44.
[36] Case C-64/05 P Sweden v Commission and others [2007] ECR I-11389, paragraphs 85-86.
[37] To recall, Article 4(3), first subparagraph, allows the institution to refuse access to a document drawn up for internal use, which relates to a matter where the decision has not been taken by the institution, if disclosure of the document would seriously undermine the institution's decision-making process. Article 4(3), second subparagraph, allows the institution to refuse access to documents containing opinions for internal use even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process. It is clear from the wording of the first and second subparagraphs of Article 4(3) that the number of documents potentially covered by Article 4(3) second subparagraph is smaller than the number of documents potentially covered by Article 4(3) first subparagraph. (Emphasis by the Ombudsman)
[38] Case T-403/05 MyTravel Group plc. v Commission, judgment of 9 September 2008 (not yet reported). For an account of the Commission arguments in relation to MyTravel, see paragraphs 33 and 34 above.
[39] It is important to underline, that the reality of such external pressure must be established, that is, evidence must be adduced to show that there was a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to such external pressure. See Case T-144/05 Muñiz v Commission, judgment of 18 December 2008 (not yet reported), at paragraph 86.
[40] Case T-342/99 Airtours v Commission [2002] ECR II-2585. Merger decisions adopted by the European Commission are rarely annulled. In its ruling in case T-342/99, the Court of First Instance annulled the Commission's decision declaring a proposed merger incompatible with the common market.
[41] Case T-403/05 MyTravel Group plc. v Commission, judgment of 9 September 2008 (not yet reported), at paragraph 43.
[42] The Commission gave, as an example, the EMI/Time Warner case, in which it refused a request for access under Regulation 1049/2001 to the statement of objections in order to protect the deliberations of its services in the BMG/Sony case, which concerned the same sector of activities. Case T-403/05 MyTravel Group plc. v Commission, judgment of 9 September 2008 (not yet reported), paragraphs 99-100.
[43] Case T-121/05 Borax Europe Ltd v Commission, judgment of 11 March 2009 (not yet reported).
[44] Case T-121/05 Borax Europe Ltd v Commission, judgment of 11 March 2009 (not yet reported), paragraph 70.
[45] Case T-121/05 Borax Europe Ltd v Commission, judgment of 11 March 2009 (not yet reported), paragraph 71.
[46] Case T-121/05 Borax Europe Ltd v Commission, judgment of 11 March 2009 (not yet reported).
[47] In his decision in case 3697/2006/PB, the Ombudsman made the following further remark: "The Ombudsman recalls that, according to Articles 7(1) and 8(1) of Regulation 1049/2001, applications for access to documents and confirmatory applications shall be handled promptly and a reply to an access application or a confirmatory application shall be given within 15 working days as from the date of registration of such an application. The Ombudsman takes the view that the obligation to handle applications promptly implies that the Commission should organise its administrative services so as to ensure that registration normally take places, at the latest, on the first working day following receipt of an application."
