The background to the complaint

1. This case is about the Commission's refusal to grant full access to a document on the basis of the protection of the Institution's international relations. The case also concerns the question of public access to information exchanged in meetings between the institutions and business organisations. The document in question, to which the complainant requested access, is the Minutes of a meeting, held in January 2008, between Mr Peter Mandelson, the then Commissioner responsible for Trade, and representatives of the organisation BusinessEurope. The complainant, a civil society organisation[1], applied to the European Commission for public access to the above document in accordance with Regulation (EC) No 1049/2001[2] ('the Regulation') in February 2008.

2. On 11 March 2008, the Commission granted partial access to an internal Commission e-mail containing the minutes of the above-mentioned meeting.

3. On 21 March 2008, the complainant submitted a confirmatory application to the Commission requesting "full access to the document requested". The complainant pointed out that the refusal to grant full access seemed unjustified because industry lobbyists, such as representatives of BusinessEurope – that is to say, other members of the public – had, to the complainant's understanding, apparently been granted full access to the information contained in that document.

4. On 22 May 2008, the Commission replied to the complainant's confirmatory application. Invoking Article 4(1)(a)[3], third indent, of the Regulation ('international relations'), the Commission confirmed the refusal to grant full access. It stated, in summary, that the deleted text contained information or statements concerning negotiating strategies of the Commission's Directorate-General for Trade (DG TRADE), and a separate section stated that "the undisclosed parts are covered in their entirety" by the above-mentioned reasons for non-disclosure. In addition, the e-mail contained an indication of a further deletion of text: "[deleted - text not relevant to the request]".

5. On 13 June 2008, the complainant submitted a complaint to the European Ombudsman.

The subject matter of the inquiry

6. The Ombudsman opened an inquiry into the complainant's following allegation and claim:

Allegation:

The Commission wrongly refused full access to the requested document.

Claim:

The Commission should grant him full access to the document concerned.

The inquiry

7. On 22 July 2008, the Ombudsman asked the Commission to submit an opinion on the above allegation and claim by 31 October 2008. By letter dated 24 October 2008, the Commission asked for an extension of the deadline for submitting its opinion. The Commission sent its opinion on 5 December 2008, which was forwarded to the complainant with an invitation to make observations. The complainant submitted its observations on 30 January 2009. Further to the receipt of the complainant's observations, the Ombudsman considered it necessary to carry out an inspection of the document in question. The inspection took place at the Commission's premises on 9 February 2010.

8. On 11 June 2010, the Ombudsman made a proposal for a friendly solution. On 25 August 2010, the Commission submitted its opinion on the Ombudsman's proposal. The opinion was forwarded to the complainant, who submitted observations on 25 October 2010.

The Ombudsman's analysis and conclusions

A. Allegation that the Commission wrongly refused full access to the requested document

Arguments presented to the Ombudsman

9. The complainant alleged that the Commission wrongly refused full access to the document (an e-mail) containing the minutes of the meeting, held on 19 January 2008, between Commissioner Peter Mandelson and representatives of the organisation BusinessEurope. It stated that all pertinent information had been deleted from the document, making it impossible to know what was discussed. Nevertheless, it was clear from the remaining content in the document that the Commissioner shared information with the representatives of BusinessEurope about its ongoing World Trade Organisation (WTO) negotiations, as well as about the ongoing negotiations on free trade agreements between the EU and Korea, India and ASEAN countries. The complainant could not agree with the application of Article 4(1)(a), third indent, of the Regulation, "as this would mean discrimination between industry lobbyists on the one hand and EU citizens on the other". The complainant wondered why the representatives of BusinessEurope should be entitled to get access to such information, while other EU citizens were not.

10. In its opinion, the Commission first pointed out that the document in question does not contain 'normal' minutes of a meeting. Rather, it was an internal summary, contained in an e-mail, which was addressed to colleagues familiar with the issues discussed during the meeting. Since it was not intended for the wider public, its language was very direct and 'laconic'. In fact, it was the language that made it difficult for the complainant to understand the content of the document, and not the deletions made in it. The Commission granted access to approximately four fifths of the contents of the minutes. It only blanked out comments concerning ongoing negotiations, since its services considered that the disclosure of the deleted parts would put elements of the Commission's negotiating strategy in the public domain. In its view, this could limit its margin of manoeuvre in bilateral and multilateral negotiations with Korea, India, and ASEAN, as well as in the framework of the WTO. This would undermine the protection of the public interest regarding the international relations of the Community. Consequently, the Commission was obliged, in accordance with Article 4(1)(a), third indent, of the Regulation, to refuse access to the concerned parts of the document.

11. As regards the alleged discrimination and the Commission's privileged relationship with business organisations, Members of the College and their services continuously meet with a wide range of stakeholders, including business representatives, social partners, NGOs and citizens. The Commission (DG TRADE) has developed a regular dialogue with civil society organisations in the trade policy field, with the aim of ensuring that all perspectives to the Union's trade policy can be heard. However, the dialogue is open exclusively to non-profit organisations and it takes place in regular meetings on trade issues with the Commissioner responsible for trade, senior Commission officials and trade negotiators. These meetings with the stakeholders are part of the political activities of the Members of the College, which are not and cannot be subject to administrative review within the framework of the Regulation.

12. In its observations, the complainant disagreed with the Commission's opinion and pointed out that the opinion contained misunderstandings and failed to address important issues in the case. First, as regards the use of direct and laconic language, the complainant had no difficulties in 'understanding' the e-mail as such. It pointed out that it has closely followed trade policy issues for over a decade, and is therefore familiar with trade jargon. Second, the Commission simply ignored the issue that it had shared information with the representatives of BusinessEurope, to which it did not grant access to the complainant. Specifically, it gave no indication as to why the above-mentioned exception to disclosure applied in the case of the complainant and not in the case of BusinessEurope, both of which are members of the public. The Commission also failed to address the more general issue of discrimination between stakeholders like the complainant and business lobbyists.

13. Following the complainant's observations, the Ombudsman inspected the full document here in question. The relevant findings regarding this document are set out further below.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

14. When the Ombudsman examines refusals to grant access to documents under the Regulation, he first looks at whether the reasons for non-disclosure are 'valid' and 'adequate'. 'Valid' means that the exception invoked for non-disclosure is one of those contained in the Regulation, and is applicable to the specific document or information in question. 'Adequate' means that the institution has invoked the exception in a manner that is in line with the rules and principles laid down in the case-law of the courts.

15. In the present case, the Commission relied on the exception intended to protect 'international relations' – Article 4(1)(a), third indent, of the Regulation – in order not to disclose certain parts of the e-mail here concerned.

16. Having inspected the full version of the e-mail, the Ombudsman noted that, apart from two deletions (see below), the remaining deleted parts indeed appeared clearly to constitute the kind of information and statements that may be covered by the exception intended to protect 'international relations'.

17. With regard to the adequacy of the invocation of that exception, the Ombudsman pointed out, first, that the exceptions provided for in Article 4(1)(a) of the Regulation are framed in mandatory terms. The institutions are thus obliged to refuse access to documents falling under any one of those exceptions, once the relevant circumstances are shown to exist[4]. The Ombudsman further noted that, according to the relevant case-law, the Commission enjoys wide discretion when it invokes the exception here in question[5]. This means that the scope of his review is limited to verifying whether the procedural rules and the duty to state reasons have been complied with, the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers[6]. Finally, with regard specifically to the duty to state reasons, the Ombudsman recalled that, although it is for the institution concerned to demonstrate, in each individual case, that the documents to which access is sought do indeed fall within the exceptions listed in the Regulation, it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and, thereby, depriving the exception of its very purpose[7].

18. In its reply dated 22 May 2008, the Commission explained that:

"The undisclosed parts in points 1 and 2 of the document relate to the negotiating strategy of the European Community, represented by the Commission in the WTO negotiations as well as with regard to Korea and India and ASEAN. The undisclosed part under point 3 (Energy and environment) of the document contains the position of the Commission services concerning the stance to take in commercial negotiations with regard to these questions. Disclosure of these parts would put elements that may form part of the Commission's negotiating strategy in the public domain and therefore prejudice these multilateral and bilateral negotiations."

19. The Ombudsman considered that, in light of the standard of review cited above – and particularly taking into account that the Commission's decision related to "ongoing" negotiations – the Commission's decision of non-disclosure might be considered adequate for the purpose of the Regulation.

20. With regard to the two deleted parts of the e-mail which, in the Ombudsman's view, did not obviously constitute the kind of information and statements that might be covered by the exception intended to protect 'international relations', the Ombudsman noted the following.

21. The first part (the second deletion on page 1 of the e-mail) appeared to concern personal data rather than international relations. The Ombudsman did not consider that the deletion of this information would in any way be surprising or problematic as such. It was nevertheless appropriate to allow the Commission to address this deletion in its reply to the Ombudsman's proposal for a friendly solution.

22. The second deletion in question (the final part on page 3 of the e-mail) called for more detailed analysis.

23. The present case concerned a request for public access to 'documents' under the Regulation. It did not concern a request for access to 'information'. The Commission itself – like other institutions – had regularly emphasised, and quite strongly so, that the Regulation only concerns, and lays down a right of, public access to 'documents'.

24. It logically followed that the institutions themselves are bound by this specificity – or limitation – in the Regulation, which, among others, means that they cannot decide that a certain part of an existing document constitutes a 'sub-document' or another document because it contains a different kind or type of information. It appeared that this is the kind of novel approach that the Commission attempted to apply in the present case when it deleted the last part of the e-mail to which it gave partial access: "[deleted - text not relevant to the request]".

25. However, within the terms of the Regulation, the complainant's confirmatory application could only be understood to imply a request for full access to the e-mail here concerned. The Commission was, therefore, under an obligation to give valid and adequate grounds for refusing access to that above-mentioned text, or grant public access to it.

26. As further pointed out above, following his inspection of the full version of the e-mail, the Ombudsman could not conclude that the deleted text here concerned obviously fell within the exception invoked by the Commission for the remainder of the deletions. He therefore considered it appropriate to invite the Commission, in his proposal for a friendly solution, to reconsider its handling of this part of the case and provide a new substantive decision on the possibility of granting public access.

27. Two further issues that needed attention were (a) the complainant's grievance about allegedly privileged public access to information, and (b) the Commission's statement that certain meetings (or, presumably, the documents relating thereto) do not fall within the scope of the Regulation.

28. With regard to the first issue, it was appropriate to include it in the proposal for a friendly solution for the following reasons. First, it raised the question of unequal treatment in relation to public access to documents and information. Second, it raised the question of when exactly information is made 'public' under the terms of the Regulation. Both questions were potentially relevant to the legality of the Commission's concrete decision on a specific application for public access to documents, and both issues had not been adequately addressed by the Commission in this case.

29. With regard to both questions, the Ombudsman recalled that the Regulation does not simply regulate, for practical purposes, the issue of access to documents. It regulates a right which was introduced with a view to enhancing the democratic quality of the Union. If the Union institutions are generally seen arbitrarily to grant selected members of the public privileged access to documents and information, it is likely that the Regulation will not adequately fulfil that purpose.

30. The term 'arbitrarily' was important here. The Ombudsman, who himself heads an administration, is obviously aware of the various kinds of communication that an institution must entertain with outside interlocutors or stakeholders. However, when the openness relevant to that communication is either arbitrary, or perceived to be arbitrary, lacking a proper rule-basis, or simply taking place without clearly applicable principles, the public can reasonably question whether such a situation is compatible with principles of good administration.

31. In light of the foregoing, the Ombudsman considered it appropriate to ask the Commission, in his proposal for a friendly solution, to clarify its relevant practices and rules, if any, regarding the issue of alleged privileged access to information and/or documents.

32. With regard to the Commission's statement that certain meetings (or, presumably, the documents relating thereto) do not fall within the scope of the Regulation, the Ombudsman noted that this statement, if taken at face value, appeared to contain a somewhat novel and far-reaching interpretation of the Regulation, the legal basis for which was not entirely clear. Therefore, rather than attempting to further guess what the Commission intended to say, the Ombudsman invited the Commission to reconsider its statement in this regard.

33. Accordingly, the Ombudsman made the proposal that the Commission could (i) with regard to the second deletion on page 1 of the e-mail here concerned, reconsider the reasoning set out in its decision on the complainant's confirmatory application; (ii) with regard to the part of the e-mail here concerned that was deleted and described (in the partially disclosed version) as "[deleted - text not relevant to the request]", reconsider its handling of the complainant's application and disclose the text or give valid and adequate reasons for non-disclosure; (iii) with regard to the issue of allegedly privileged access to documents and/or information, consider providing information on its relevant practices and rules, if any, and explain how those practices and/or rules relate to the rules on public access to documents; and (iv) with regard to the Commission's statement that certain meetings (or, presumably, the documents relating thereto) do not fall within the scope of the Regulation, reconsider its statement, and, if it decided to maintain it, clarify it in detail and with appropriate references to the applicable legislation and case-law, if any.

Arguments presented to the Ombudsman after his friendly solution proposal

34. In its opinion on the Ombudsman's friendly solution proposal, the Commission responded as follows.

35. With regard to point (i) concerning the second deletion on page 1 of the e-mail concerned, the Commission agreed with the Ombudsman that this deletion related to personal data and not to international relations, as stated in the Commission's reply to the confirmatory application. Therefore, the Commission's reply should have stated this, and access should have been refused on the basis of Article 4(1)(b) of the Regulation, since the disclosure of the deleted part would undermine the privacy of the individual concerned.

36. With regard to point (ii) concerning the part "[deleted - text not relevant to the request]", the Commission emphasised again that the e-mail in question did not contain 'normal' minutes of a meeting. It was, rather, an internal summary addressed to colleagues in the Commission. Therefore, it was not an official record of the meeting, which had been approved by the participants. Given that the complainant's request concerned the "minutes of the meeting", the Commission was of the opinion that it was entitled to consider that the complainant's request covered only those parts of the e-mail which reflected the discussions during the meeting. Nevertheless, the Commission, while maintaining its view that this part of the e-mail was not relevant to the complainant's request, decided that it could be disclosed to the complainant. A copy of the e-mail including the previously deleted part was enclosed with the Commission's reply.

37. With regard to point (iii) concerning the alleged privileged access, the Commission stated that it does not apply any rules or practices granting specific groups privileged access to documents and/or information, except in particular cases concerning parties involved in specific administrative procedures, personal data subjects, and other similar situations. On the contrary, the Commission's Code of Good Administrative Behaviour stipulates that the principle of non-discrimination and equal treatment must be observed. The purpose of the procedure which is applied in the case of requests for access to documents, and set out in the Regulation, is to examine the requested documents in order to establish if any of the exceptions set out in Article 4 applies. Once the Commission establishes that a document falls under an exception and there is no overriding public interest in disclosure, it is bound to refuse access. In accordance with the relevant case law, all requests for access to documents are treated in the same way, and an applicant's specific interest or background cannot be taken into account in its decision to grant access. In the present case, the complainant had not submitted any facts to show that the Commission's decision to grant partial access to the requested document was based on the assumption that the applicant had a specific background or interest, thus discriminating against the complainant.

38. With regard to point (iv) concerning the scope of the Regulation, the Commission regretted if its earlier response had created confusion in this regard, and therefore wished to clarify the matter. It stated that decisions of the Members of the College as to which stakeholders to meet on which issues cannot be reviewed in the framework of the Regulation. However, any documents relating to such contacts would naturally fall within the scope of the Regulation.

39. In its observations on the Commission's opinion on the friendly solution proposal, the complainant made the following submissions.

40. As regard points (i) and (ii), the complainant agreed with the Ombudsman's interpretation that its confirmatory application could only be understood to imply a request for full access to the e-mail concerned. It acknowledged and appreciated that the Commission had now released parts of the e-mail which were previously blanked out. However, the complainant remarked on the delay which had occurred in obtaining access to these parts of the e-mail: it had taken over two years and a complaint to the Ombudsman in order to finally be given access.

41. As regards point (iii), the complainant pointed out that the Commission failed to deal with this issue in its reply and that it merely stated that it does not have any rules or practices granting privileged access to specific groups. The complainant stated that it had not expected the Commission to have any such rules or practices. Nevertheless, the Commission seems to have granted such privileged access when it shared information on the WTO and FTA negotiations with BusinessEurope, but did not share the same information with the complainant. The Commission did not explain why it believes that sharing information with BusinessEurope does not pose a risk to international relations, whereas it appears to believe that disclosing the same information to the complainant would pose such a risk. The complainant submitted that this was a discriminatory and unjustified practice of the Commission.

42. The complainant did not comment on the Commission's submissions concerning point (iv) of the Ombudsman's friendly solution.

The Ombudsman's assessment after his friendly solution proposal

43. The Ombudsman welcomes the fact that the Commission accepted his proposal to reconsider its reasoning for refusing access to the second deletion on page 1 of the e-mail. The Ombudsman accepts the Commission's statement that the reasoning should have referred to Article 4(1)(b) of the Regulation, concerning the protection of the privacy of the individual concerned, rather than Article 4(1)(a) of the Regulation, concerning the protection of internal relations.

44. The Ombudsman also welcomes the fact that the Commission accepted his proposal to disclose the text in the e-mail described as "[deleted - text not relevant to the request]". The Ombudsman notes that the Commission attached a copy of the e-mail including the previously deleted, above-mentioned part, thereby granting access to it. However, certain issues need to be addressed in this context.

45. The Commission argued, in both of its opinions, that the document to which the complainant requested access was in fact an internal e-mail, which contained a summary of the discussions of the meeting, as well as other information which it did not consider to fall within the scope of the complainant's request. Consequently, it did not disclose that part of the e-mail. The Ombudsman recalls, as already pointed out above, that the complainant's request concerned access to a document, namely, 'the Minutes of the meeting between Commissioner Mandelson and the representatives of the organisation BusinessEurope', and not access to information. In the Ombudsman's view, if the Commission identified the internal e-mail in question as the document to which the complainant requested access, it should have dealt with the request as relating to the document in its entirety, without pondering on whether certain information contained therein 'falls within the complainant's request'.

46. The above consideration was already pointed out in the Ombudsman's proposal for a friendly solution. In its opinion on that proposal, the Commission, while actually giving access to the part of the e-mail in question, maintained its position that it was entitled to differentiate between the various parts of the document. The Ombudsman does not agree with the position taken by the Commission and will, therefore, make a relevant further remark below.

47. Furthermore, in its opinion on the Ombudsman's proposal for a friendly solution, the Commission went on to state, in the context of its decision "to limit" the complainant's request for access, that it did so because it was "an efficient way of maximising the information made available, particularly in the case of broad requests in which no specific documents are identified by the applicant".

48. In this regard, the Ombudsman points out that the complainant's request did not concern a 'broad request', but a very specific document, namely, the minutes of a precisely defined meeting. The Ombudsman recalls that Article 6(2)[8] of the Regulation explicitly provides that, if a request is not sufficiently clear, the Institution can request an applicant to clarify the scope of the request, and it can even assist the applicant to do so by providing it with information. The aim of this provision is, first, to allow the applicant clearly to identify the document to which access is sought, and second, to allow the Institution to identify precisely which document(s) is, or are, being requested, which, in turn, limits the latter's administrative and legal work when deciding whether to give access to the document requested. It is therefore clear that, if an Institution cannot precisely identify the document(s) requested (as the Commission appears to claim was the case in this instance), on the basis of Article 6(2) of the Regulation, it should seek to obtain clarification regarding the scope of the request, instead of making assumptions about what exactly the applicant is applying for access. The Ombudsman therefore considers that it would have been good administrative practice if the Commission had requested the complainant to clarify the scope of its request. In particular, the Ombudsman considers that, based on the hypothesis that the Commission's own internal rules do not oblige it to draw up minutes of meetings it holds with members of the public, and that, therefore, no such minutes, in the habitual sense, exist, it could have explained this fact to the complainant. In addition, it could have informed the complainant that it had, nevertheless, identified a document (in this case, an internal e-mail), which, amongst other things, contains information that is likely to be what the complainant refers to as the 'minutes of the meeting'.

49. The Ombudsman also notes that, originally, the Commission did not disclose part of the e-mail because it considered that it did not fall within the scope of the complainant's request. The part in question reads as follows:

"4. After the meeting

Russia: after meeting [Mr H.] asked PM availability to join BE/FR business event on 20/21 Feb. PM said he would look into this, agenda to be checked (see w HH). (RF paper by BE attached). Global Europe conference: BE interested in setting up conference to take stock of progress made on Global Europe agenda with PM participation and COM co-sponsoring. Note on this will follow. BE sent after the meeting [Mr S.]'s briefing for the meeting (attached). Useful points for KFFs and PBs meetings with BE on 30 and 31/1/08.

[Ms M.]

Attachments:
IRC-not250108-EASMandelsonfinal amended version.doc
RUS-agen200208-RSVPvisit.doc" (sic)

50. Two issues need to be addressed in relation to the above-quoted parts of the e-mail.

51. The first issue concerns the fact that the e-mail contained two attachments. By deleting the above text, the Commission prevented the complainant from learning about the existence of the attachments, and hence from eventually requesting their public disclosure. It must have been obvious to the Commission, at the time the request was made, that the complainant would, in all likelihood, have wanted access to those documents. In light of the fact that the complainant has not pursued this point, and in light of the positive outcome of the proposal for a friendly solution, the Ombudsman does not consider it necessary to inquire further into this matter. He considers it appropriate, however, to include a suggestion in respect thereof in the further remark below.

52. The second issue concerns the fact that the Commission has now disclosed the previously withheld part of the e-mail, but without indicating that it would have refused access to it at the time of the complainant's application for access. The Ombudsman therefore understands the Commission to consider that this part of the e-mail was publicly accessible from the outset.

53. With regard to point (iii) of his proposal for a friendly solution, which concerns the broader issue of whether the Commission grants certain entities privileged access to documents or information, the Ombudsman notes the following.

54. On 15 February 2011, the complainant published a statement on its website[9], announcing that it had launched a legal action before the General Court of the European Union against the Commission for withholding documents relating to the EU’s free trade talks with India. The complainant accused the Commission of discriminating in favour of corporate lobby groups, and of infringing the EU’s transparency rules.

55. The Ombudsman recalls that, in accordance with Article 2(7) of the Ombudsman's Statute[10], he has to terminate, without further action, the consideration of a complaint when its subject matter has been brought before a court. In the present case, this provision does not apply, since the subject matter of the proceedings initiated by the complainant before the General Court differs from that of the present inquiry. However, on the basis of the information published on the complainant's website, the complainant's main argument in the case before the General Court is that the Commission is "discriminating in favour of corporate lobby groups … What is at stake is whether the Commission can continue its practice of granting big business privileged access to its trade policy-making process by sharing information that is withheld from the public." It thus appears that the General Court, in the context of the proceedings initiated by the complainant, will have to deal with the very same argument that was covered by point (iii) of the Ombudsman's friendly solution proposal. The above-mentioned court case was launched after the complainant had submitted its observations on the Commission's reply to the friendly solution proposal. It thus appears that the complainant now wishes to obtain the General Court's views on the relevant argument. In these circumstances, the Ombudsman finds that there is no need for him to consider this aspect of the case any further.

56. In the proceedings before the General Court, the complainant is naturally free to refer to information provided by the Commission in the course of the present inquiry, such as (i) the Commission's statements that it does not have any rules or practices for granting specific groups privileged access to documents and/or information, except in particular cases involving parties to specific administrative procedures, personal data subjects, and other similar situations, and (ii) its statement, in that context, that its Code of Good Administrative Behaviour sets out the principle of non-discrimination and equal treatment.

57. Finally, with regard to point (iv), the Ombudsman welcomes the Commission's clarifications that, although decisions taken by the Members of the College concerning the stakeholders they consider they should meet cannot be reviewed in the framework of the Regulation, any documents relating to such contacts fall within the scope of an access to documents request. In light of these clarifications, the Ombudsman considers that this aspect of the case requires no further inquiries.

58. On the basis of the above, the Ombudsman considers that the outcome of his friendly solution proposal with regard to points (i), (ii) and (iv) has been successful. As regards point (iii) of his proposal for a friendly solution, for the reasons set out in paragraph 48 above, the Ombudsman must terminate his consideration of this aspect of the case.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

In light of the Commission's statements in its opinion on the Ombudsman's proposal for a friendly solution, and in light of the complainant's reactions to those statements, the Ombudsman considers that the outcome of his friendly solution proposal is satisfactory, with the exception of the Commission's reply to the allegation that it grants certain persons privileged access to documents. However, since this allegation figures prominently in a case which the complainant has in the meantime lodged with the General Court, the Ombudsman takes the view that there is no further need for him to consider this aspect of the case.

The complainant and the Commission will be informed of this decision.

Further remark

In the case at hand, the complainant made a request for public access to a 'document', and not a request for access to 'information'. The Commission dealt with this request in accordance with Regulation 1049/2001 regarding public access to documents. However, as pointed out above, it follows from the Regulation that the Institutions cannot decide that, because a certain part of an existing document contains a different kind or type of information, it constitutes a 'sub-document', or a separate document. Therefore, the Ombudsman would like to encourage the Commission to follow, in future similar cases, an approach which is consistent with the above consideration.

In addition, the Ombudsman points out that references to the attachments to a given document also form part of the latter and should therefore not be excluded when the Institutions analyse a request for access to such a document. The Ombudsman would therefore like to invite the Commission to follow a practice whereby, irrespective of whether an attachment forms part of the document that refers to the attachment, references to attachments are always dealt with as forming part of the main document to which access has been requested.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 7 June 2011

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[1] Corporate Europe Observatory: http://www.corporateeurope.org/

[2] 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.

[3] Article 4(1)(a), third indent, of the Regulation provides as follows:

"1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

(a) the public interest as regards:

[…]

- international relations…"

[4] See Case T-110/03 Sison v Council [2005] ECR II-1429, paragraph 51.

[5] See Case T-110/03 Sison v Council, ibid., paragraph 46.

[6] See Case T-110/03 Sison v Council, ibid., paragraph 47 (concerning the General Court's scope of review).

[7] See Case T-110/03 Sison v Council, ibid., paragraph 60.

[8] "If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents."

[9] http://www.corporateeurope.org/global-europe/content/2011/02/commission-sued-privileged-access

[10] Article 2(7) of the Statute of the Ombudsman provides: "When the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any inquiries he has carried out up to that point shall be filed without further action."