Background to the complaint

1. In March 2021, a journalist submitted a complaint to the Ombudsman concerning Frontex’s decision on his request for public access to documents.^[1] The complainant’s request concerned expenses incurred in relation to an event that Frontex used to host annually in the past, the ‘European Border and Coast Guard Day’.^[2] Specifically, the complainant sought access to the details of the expenses concerning this event in the period from 2016 to 2019, including the costs of dinners. The complainant indicated that, through a prior request for public access to documents to Frontex, he had obtained access to a detailed breakdown of expenses concerning the event in 2015 and to overall figures for years 2016-2019.

2. At the confirmatory stage, Frontex identified additional eight documents. It provided only very limited access to these documents, arguing that disclosure could undermine the protection of commercial interests^[3] of Frontex and of the company that had organised the event on its behalf. It also stated that the documents contained only fragmented information related to the complainant’s access request.

3. In the course of the inquiry, Frontex provided the complainant with the information he was looking for in relation to dinners. The Ombudsman therefore closed the case^[4].

4. In April 2021, the complainant submitted a new request to Frontex, seeking access to further details of the expenses related to the annual events, contained in the same documents. Frontex reiterated its previously stated arguments as regards the protection of the commercial interests of those concerned under the EU public access rules. It also said that the complainant did not put forward any arguments demonstrating a significant change in the circumstances, which could call for broader disclosure. Frontex thus concluded that it was not obliged to re-examine its position on the documents it had already assessed, and that its prior decision to refuse access remained justified.

5. Following an unsuccessful request for review, the complainant turned anew to the Ombudsman.

6. The complainant said that Frontex had decided no longer to hold the European Border and Coast Guard Day. In his view, the need to protect commercial interests therefore no longer justified Frontex’s refusal to disclose the documents at issue. The complainant also argued that there is an overriding public interest in the release of the documents, namely, to scrutinise how Frontex uses taxpayers’ money.

7. The Ombudsman opened an inquiry into the complainant’s position that Frontex was wrong to refuse to give full access to the documents in question. In the course of the inquiry, the Ombudsman received Frontex’s reply in relation to the complaint and reviewed the documents that Frontex had identified as falling within the scope of the complainant’s request.

The Ombudsman's proposal for a solution

8. Following an inspection of the documents, the Ombudsman noted that it was reasonable to consider that disclosing them in full could compromise Frontex’s ability to obtain competitive prices for similar events in the future. Disclosure could also undermine the legitimate commercial interests of the winning bidder. Therefore, the Ombudsman agreed that full disclosure did not appear possible in accordance with the EU rules on public access to documents.

9. However, the Ombudsman also noted that the exception for the protection of commercial interests can be set aside in the presence of an overriding public interest in disclosure.^[5]

10. In this regard, the Ombudsman noted that the possibility to scrutinise how public money is spent helps strengthen public trust in the EU institutions and ensures greater legitimacy in relation to their functioning, as recognised by the EU court.^[6]

11. In light of the nature of the expenditure on food and entertainment, and given the sums involved, the Ombudsman thus considered that there is an overriding public interest in providing greater access to the documents concerned.

12. The Ombudsman therefore made the following proposal for a solution:

Frontex should reconsider its decision on the complainant’s access request and provide broader access to the documents, by disclosing information on the amounts spent on food and entertainment in relation to Frontex’s annual events.^[7]

13. In reply, Frontex disclosed to the complainant information on the amounts spent on food and entertainment in relation to the European Border Guard Day in the years 2016 to 2019.^[8] It also provided the complainant with additional background information on the event.

The Ombudsman's assessment after the proposal for a solution

14. The Ombudsman welcomes the fact that Frontex has accepted her proposal for a solution by disclosing the information on the expenditure concerning food and entertainment for the period in question. Noting that the complainant is largely satisfied with this outcome, she thus considers that the complaint has been resolved.

15. The Ombudsman would like to reiterate the importance of transparency in relation to the expenditure of public funds by the EU institutions. She considers that it is a legitimate concern of the public to question how public funds are spent, and that, as a matter of public trust, the public should be able to hold the EU institutions to account in this regard.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

Frontex has accepted the Ombudsman’s proposal for a solution, by disclosing information on the amounts spent on food and entertainment in relation to Frontex’s annual events.

The complainant and Frontex will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 07/12/2021

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN, applicable to Frontex pursuant to Article 114(1) of Regulation 2019/1896 on the European Border and Coast Guard: https://eur-lex.europa.eu/eli/reg/2019/1896/oj. 

[2] The European Border and Coast Guard Day is an event organised by Frontex to share experiences and best practices among the border-guard community. More information available at: https://ebcgday.eu/. 

[3] In accordance with Article 4(2) first indent of Regulation 1049/2001. 

[4] https://www.ombudsman.europa.eu/en/case/en/58999. 

[5] See footnote 3.

[6] Judgment of the Court of Justice of 20 May 2003 in case C-465/00, Österreichischer Rundfunk and Others, paragraphs 81 to 85. 

[7] The full text of the Ombudsman’s proposal for a solution is available at: https://www.ombudsman.europa.eu/en/solution/en/147131.

[8] The full text of Frontex’s reply to the Ombudsman’s proposal for a solution is available at:

https://www.ombudsman.europa.eu/en/doc/correspondence/en/147132.