The background

1. Bluefin tuna is an endangered species. In 2010, the complainant, Greenpeace, sent the European Commission information about an allegedly irregular shipment of live bluefin tuna from Tunisia to a tuna farm in Malta[1], which prompted the Commission to investigate the matter. A month later, the complainant requested public access to the documents[2] relating to the Commission's investigation. The Commission refused to grant such access[3], arguing that public access to the documents would undermine the protection of the purpose of investigations. The complainant first brought this refusal to the Ombudsman's attention in complaint 803/2012/TN.

2. In 2012, the complainant again submitted a request to the Commission for access to documents concerning the matter, this time for documents which had been drawn up or received after the first request was made. The Commission rejected this request as well[4]. This led the complainant to submit another complaint (369/2013/TN) to the Ombudsman.

3. At the time of the complainant's first access request, the Commission had asked Malta to open an administrative inquiry based on Article 102(2) of the Fisheries Control Regulation[5]. The Commission can do so if it considers that irregularities have occurred in the implementation of the rules governing the common fisheries policy or that the existing control provisions and methods in particular Member States are not effective. At the time of the second access request, Malta was in the process of implementing an action plan drawn up by the Commission under Article 102(4) of the Fisheries Control Regulation. The Commission draws up such an action plan if the administrative inquiry by the Member State does not lead to a removal of the irregularities or if the Commission identifies shortcomings in the control system of the Member State in question.

4. The Ombudsman opened inquiries into both complaints, in which the complainant alleged that the Commission had wrongly applied Regulation 1049/2001, the Aarhus Regulation[6] and the Aarhus Convention[7] when handling and refusing the requests for access to documents containing environmental information.

Alleged wrongful refusal to grant public access

The Ombudsman's recommendation[8]

5. On the basis of her inquiries into the two complaints, in June 2015 the Ombudsman made the following recommendation to the Commission:

The Commission should grant access to the requested documents, in particular the action plan, or provide valid reasons for not doing so.

In making this recommendation, the Ombudsman took into account the arguments and opinions put forward by the parties. In her analysis of the arguments presented, the Ombudsman dealt in particular with the question of the relationship between EU public access rules and the Aarhus Convention.

6. The Ombudsman considered that the procedure under Article 102 of the Fisheries Control Regulation (hereafter "the fisheries control procedure"), when considered in the light of Article 4(4)(c) of the Aarhus Convention[9], fell outside the scope of the exception to public access being relied upon by the Commission, that is, the third indent of Article 4(2) of Regulation 1049/2001 which aims at protecting the purpose of inspections, investigations and audits. The Ombudsman considered that there were not any valid grounds to refuse access to the relevant documents.

7. The Ombudsman came to the same conclusion - that is, that the exception to access aiming at protecting the purpose of inspections, investigations and audits could not be relied upon to refuse access - even if the fisheries control procedure were considered to constitute an "investigation" falling within the scope of the relevant Article[10]. The Ombudsman considered that the Commission had not provided a convincing explanation as to how disclosure of the relevant documents would, at the point when the complainant requested access, have endangered the completion of the fisheries control procedure. The Ombudsman's conclusion in this regard was based, among other things, on the fact that under Article 102 of the Fisheries Control Regulation, the Member State concerned is obliged to conduct an administrative inquiry, inform the Commission of the results and, if applicable, implement whatever action plan is drawn up. The Member State's cooperation in this regard is thus not contingent on its willingness to cooperate.[11] The Ombudsman's view was, in fact, that one may reasonably suppose that public disclosure of documents related to the procedure could actually favour or facilitate compliance with EU law and fisheries policy through the robust involvement of public opinion and civil society.

8. The Commission responded to the Ombudsman's recommendation on 19 November 2015. It had very recently decided to disclose some of the documents to the complainant but continued to refuse access to the rest. The Commission maintained its position regarding the correctness of its original decision that the documents concerned were covered by the exception to public access aiming at protecting the purpose of inspections, investigations and audits[12]. The Commission also stated that the Court of Justice had recently ruled that Article 4(1) and (4) of the Aarhus Convention are not sufficiently precise and unconditional to have direct effect^[13].

9. While maintaining the view that the fisheries control procedure is very similar in nature to an infringement proceeding, the Commission stated that it did not base its reasoning for refusing access on the case-law regarding access to documents related to infringement proceedings. The Commission merely applied the relevant exception to access aiming at protecting the purpose of inspections, investigations and audits[14] - given that, as agreed by the Ombudsman, the fisheries control procedure was ongoing at the time of the two requests for access to documents. The Commission referred to the ClientEarth case[15], in which the Court of Justice ruled that there are five categories of cases in which a general presumption applies that disclosure of documents in an administrative file in principle undermines the protection of the purpose of a relevant investigation. The Commission argued that the list of categories is "an open list" which does not exclude that such a general presumption may apply to the fisheries control procedure. Nevertheless, the Commission said that it did carry out a specific examination of the documents concerned and it provided a detailed reasoning on how disclosure would undermine the fisheries control procedure.

10. In particular, the Commission argued that although the fisheries control procedure and infringement proceedings are legally distinct, they are very similar not only with regard to their purpose, but also in the manner in which this purpose is achieved. In both cases, the purpose of the investigation is to ensure compliance with EU law through a procedure consisting of clearly defined steps. Both procedures involve exchanges of information between the Commission and the Member State concerned, which need to take place in a climate of mutual trust. These exchanges concern not only facts, but also aspects related to the compliance assessment, such as the extent of requirements under EU law, the most suitable actions and the timeframe to remedy the infringement, all of which are often disputed. The Commission therefore did not agree with the Ombudsman's conclusion that the fisheries control procedure, compared to infringement proceedings, leaves much less room for discretion and political negotiations, during which a climate of confidence could be instrumental in reaching a solution. To the contrary, since the "irregularities" discussed often concern the fisheries control system as a whole and the options for remedial action are many, there is even more room for manoeuvre. This, according to the Commission, makes it important to keep the Member State committed and willing to cooperate throughout the whole process. Some of the irregularities identified were indeed systemic in nature and called for remedial actions that were less prescriptive, so as to allow certain flexibility to the Member State to adapt the solutions found to its internal organisational constraints. In such cases, much depends on the compliance assessment made by the Commission. Therefore, the evaluation carried out by the Commission is not merely a straightforward verification. Rather, it includes an indispensable margin of appraisal in assessing whether Malta had indeed taken all the necessary measures and to what extent these measures were satisfactorily implemented. Even after the adoption of the Commission decision establishing the action plan, the actions included therein or the timeframe for their completion could have required further amendment. A premature public release of the action plan would have had a negative impact on the ongoing investigations. This was because, according to the Commission, it would not have been free, without undue external pressure, to assess the most appropriate means of enforcing the Fisheries Control Regulation., The most appropriate means could include the option of opening an infringement proceeding.

11. The Commission also argued that, on the basis of Article 113 of the Fisheries Control Regulation, the Member State is entitled to expect a high level of confidentiality as regards transferred data for as long as the Commission is seeking to finalise the fisheries control procedure successfully. Premature disclosure of the requested documents could have had a negative impact on the investigation.

12. In the Commission's view, the fact that the provisions of the Fisheries Control Regulation are binding on the Member States does not signify that their willingness to cooperate may be considered as a given. With that in mind, Title XI in the Fisheries Control Regulation lays down detailed sanctions. Furthermore, a failure to comply with the provisions of the Fisheries Control Regulation may give rise to an infringement proceeding under Article 258 TFEU. The fact that the provisions of the Fisheries Control Regulation are binding on the Member State is thus not a relevant basis on which to justify the non-application of the exception to access aiming at protecting the purpose of inspections, investigations and audits[16]. The Commission also argued that the present case is different from the situation in the Schlyter case[17], in which the procedure in question did not concern an administrative procedure, but a national legislative action, and related to the exercise of prior, rather than subsequent, checks.

13. On the basis of the above, the Commission maintained that its decisions to refuse access to the documents concerned were correct at the point in time when they were taken. However, since 2012, there had been new developments and the Commission took the view that the action plan has been effectively implemented. More specifically, in March 2013, the Commission had communicated to Malta that overall the level of implementation of the action plan was satisfactory, despite certain cumulative delays. The Commission also informed Malta of its intention to continue to monitor, in the framework of its periodical verification missions, the efficiency of the fisheries control system and the long-term persistence of the compliance achievements stemming from the implementation of the action plan. So far, the findings during the Commission’s verification missions have not been of any concern and they do not, in any event, indicate recurring systemic irregularities in the Maltese control system. The Commission therefore concluded that the reasons for not granting access were no longer valid. The Commission therefore granted access to its own documents in the file and stated that it was consulting the Maltese authorities regarding the release of the documents originating from them.

14. In its observations, the complainant maintained that the fisheries control procedure did not fall within the concept of "investigation" for the purpose of the exception to public access aiming at protecting the purpose of inspections, investigations and audits^[18]. In the complainant's view, the Commission was simply reflecting its approach that, where it believed an administrative procedure would be better conducted in secrecy then it is legitimate to treat it as an investigation.

15. Even if the fisheries control procedure were to be considered as an "investigation", and thus potentially covered by the exception to public access^[19], the complainant supports the Ombudsman's position that the exception to access would nevertheless not apply in the present case. The complainant is concerned that the Commission routinely puts forward the view that secrecy and confidentiality, instead of openness and transparency, can facilitate the achievement of the objectives of EU law. Similarly, in the view of the complainant, the Commission considers public scrutiny of any controversial issue to constitute "undue pressure", without explaining how such pressure would be "undue". In an open and democratic society, public pressure is not just "due", it is also necessary. It is what keeps the system connected to its citizens, contributing to its legitimisation in the eye of the public. Compliance with EU law obligations cannot be contingent on the Member State's willingness to cooperate, and such willingness cannot depend on the level of transparency that applies to such obligations.

16. As regards the Commission's decision to disclose its own documents due to new developments, the complainant pointed out that, on 7 March 2012, that is one month prior to the first complaint to the Ombudsman and also prior to the second request for access, the Commission communicated to Malta that "[o]verall, the level of implementation of the action plan is satisfactory despite certain delays". However, it is unclear at what point in time this overall satisfaction changed into a well-founded opinion that Malta was fulfilling its obligations under the Fisheries Control Regulation. Whenever that point was reached, the "investigation" would no longer have been necessary and the requested documents should then have been disclosed to the complainant. The complainant is concerned that the Commission may have delayed the release of the documents, given that, from the list of relevant documents provided by the Commission, it appears that there was no additional activity after March 2013.

17. The complainant also stated that the Commission had informed it that Malta opposed the release of the documents originating from it, invoking a number of exceptions to access in Regulation 1049/2001. The Commission therefore granted partial access only to these documents.

The Ombudsman's assessment after the recommendation

18. The Ombudsman welcomes the fact that that the Commission has now granted the complainant access to those of its own documents covered by the access requests. However, the Ombudsman notes that some of the documents now disclosed had been requested five years earlier. The late disclosure of these documents has to be seen as very unsatisfactory. Three questions now need to be considered.

19. The first question is whether the Commission was entitled to refuse access to the documents at the time of the requests. It is still unclear to what extent the Commission has sought to rely on the case-law allowing for a general presumption that, in principle, the disclosure of the documents in certain administrative files would undermine the protection of the purpose of an investigation. The Commission's position appears to be that there is an "open list" of categories of cases in which such a general presumption may be applied. However, this position is not in line with the case-law, which establishes that the exceptions to the right of access must be interpreted narrowly. The Ombudsman notes that, while the Commission appears to have invoked the "general presumption" approach, it says that it did not rely solely on this approach. According to the Commission, when refusing access to the documents in question, it carried out an individual assessment of the documents concerned in the context of the exception to access aiming at protecting the purpose of inspections, investigations and audits^[20].

20. The Ombudsman maintains that the Commission has failed to provide valid reasons for not disclosing the requested documents when they were first requested. While the documents requested are very varied in nature[21], the Commission merely put forward the very general argument that a premature public release of the action plan would expose it to undue external pressure. Such a general argument is not sufficient to justify the refusal to provide access to the documents in question. The Ombudsman expects that, in future similar cases, the Commission will provide a more detailed explanation of the undue external pressure it anticipates would arise. Furthermore, in order for the exception to apply, the Commission would need to explain why it was reasonably foreseeable that such pressure would actually undermine the protection of the purpose of the fisheries control procedure. Where it cannot be shown that external pressure is likely to have this detrimental impact, such documents should be released (unless some other exception clearly applies).

21. The second question is whether the Commission, even within the terms of its own approach (with which the Ombudsman does not agree), should have released its own documents at an earlier stage, in the context of the ongoing Ombudsman inquiry. The Commission decided to release its own documents in November 2015 because the "investigation", that is, the fisheries control procedure, had been finalised. Thus, in the Commission's view, no harm could then be caused to its "investigation" by granting access. But the Ombudsman accepts as valid the complainant's argument that the "investigation" appears to have been finalised before the Commission replied to the Ombudsman's recommendation. It is surely relevant that in March 2012 the Commission’s position was that, overall, Malta’s level of implementation of the action plan was satisfactory despite certain delays. Although the Commission continued to monitor Malta’s compliance with the action plan in the context of its periodical verification missions, the fact that it did not find anything of major concern clearly indicates that the Commission would not have needed another three and a half years to conclude that the “investigation” had been finalised. It thus appears very likely to the Ombudsman that the exception, on which the Commission was relying for the decision to refuse access, ceased to have application (even within the Commission’s own terms) at some point considerably earlier than November 2015. The Commission should have released these documents once the engagement with Malta had been substantively concluded.

22. The Commission has now released its own documents and, in doing so, has complied in part with the Ombudsman’s recommendation. The practice of the Ombudsman for many years has been that, in such circumstances, it is not appropriate to make a finding of maladministration. The Ombudsman proposes to follow this practice in this case and will not make a finding of maladministration arising from the Commission’s failure to release its own documents at an earlier stage. The Ombudsman however points out that the statutory three month deadline, given to an institution to respond to a recommendation, must not be used as an excuse for further delay. This is particularly so in cases, such as this one, where it is clear that the documents could have been released before the deadline. In this case, the institution had also requested and been granted an extension to the deadline. All of this can be very unsatisfactory for the complainant who, by definition, has already been refused access on grounds which the Ombudsman finds unacceptable. The making of a recommendation presupposes that there has been maladministration and the purpose of the recommendation has to be to correct the maladministration to whatever extent is possible. For the future, and particularly in cases involving public access to documents, a recommendation by the Ombudsman is likely to carry with it an explicit finding of maladministration.

23. The third question is whether the Commission is correct in continuing to refuse access to the documents emanating from Malta. Article 113 of the Fisheries Control Regulation does not provide that a Member State can expect a higher level of assurance of confidentiality for documents originating with it than is provided for under Regulation 1049/2001. Given that Regulation 1049/2001 is part of "the applicable rules on confidentiality" referred to in Article 113(4) of the Fisheries Control Regulation, a Member State can have no reasonable expectation of a level of protection for its documents going beyond what is provided for in Regulation 1049/2001.

24. Public access to the documents originating from Malta has still not been provided. The Ombudsman notes that, although Malta did not consent to such access, Regulation 1049/2001 does not confer on a Member State a general and unconditional right to veto access to documents originating from it. The procedure provided for under Article 4(5) of Regulation 1049/2001 provides, rather, an opportunity for a Member State to participate in the decision-making process of the EU institution. Before refusing access to a document originating from a Member State, the institution concerned must examine whether that State has based its objections on the substantive exceptions in Article 4(1) to (3) of Regulation 1049/2001 and whether it has given proper reasons for its position. Although not obliged to perform an exhaustive assessment of the Member State's justifications, the institution must make sure that those reasons exist and have some substance. The EU institution however remains responsible for the lawfulness of the decision it takes.^[22]

25. The Ombudsman considers that the Commission has not met its obligation to take responsibility for the lawfulness of the decision to refuse access to the documents originating from Malta. The Ombudsman considers that the reasons given for the refusal of access to these documents, both initially and as of now, are not sufficiently clear. Of greatest concern is the fact that the Commission appears to have accepted, without question, Malta’s reference to Article 4(3), second subparagraph, of Regulation 1049/2001. Except there is an overriding public interest, this provides for the refusal of access to "documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned". The Ombudsman finds it difficult to see how any of the documents originating from Malta could possibly fall into this category. This exception is intended to protect documents created within the EU institution and not documents obtained from outside the institution. Furthermore, the documents potentially to be protected must contain “opinions for internal use”. Even if a document potentially falls within the category which may be so protected, the exception will apply only where there is an explanation as to how disclosure could specifically and effectively undermine the interest to be protected. Furthermore, the risk of that undermining occurring must be reasonably foreseeable and not purely hypothetical.[23] The Commission has not verified that any of these preconditions apply. Accordingly, the Ombudsman finds that the Commission's acceptance of the validity of this exception amounted, in the particular circumstances of this case, to maladministration.

26. While the Ombudsman is not satisfied with the manner in which the Commission refused access to the documents originating from Malta, it is not appropriate to pursue this issue further in the context of the present inquiry. The complainant has informed the Ombudsman that Malta's objection to the granting of access is the subject of review by the Commission following a renewed request for public access to the documents concerned. The Ombudsman believes that it is correct to allow this review to take its course. In the event that the Commission does not take the opportunity to deal properly with the matter in the context of the review, the complainant may choose to come back to the Ombudsman.

Conclusions

On the basis of the inquiry into these complaints, the Ombudsman closes it with the following conclusions:

The Ombudsman finds maladministration on the part of the Commission arising from its continued refusal of access to those documents originating in Malta; this maladministration arises in particular from its uncritical acceptance of the exception to the right of access invoked by the Maltese authorities. However, given the circumstances, no further inquiries are justified in the context of the present inquiry into the issue of the refusal to grant access to the documents originating from Malta.

The Commission has accepted the Ombudsman’s recommendation in part only, that is, to the extent that it has now released the documents it has itself created. The Ombudsman remains of the view that the Commission’s original grounds for refusing access to these documents were incorrect.

Furthermore, the Ombudsman is very disappointed that the Commission did not release its own documents immediately at the earliest point when the grounds on which it relied ceased (even within the Commission’s own approach) to be applicable. The Ombudsman finds the delay in releasing these documents to have been unacceptable.

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

Emily O'Reilly

Strasbourg, 28/07/2016

 

[1] Tuna cannot be bred in captivity. Thus, tuna farming involves capturing wild tuna, caging them and then towing the submerged cages to tuna farms, where the tuna are fattened and then slaughtered.

[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] On the basis of the third indent of Article 4(2) of Regulation 1049/2001, which lays down that access to a document shall be refused where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.

[4] Again on the basis of the third indent of Article 4(2) of Regulation 1049/2001.

[5] Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, OJ 2009 L 343, p. 1.

[6] Regulation (EC) No 1367/2006 of the European Parliament and 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.

[7] The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 1998, available at: http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf

[8] The Ombudsman's full analysis leading to her recommendation can be found here: http://www.ombudsman.europa.eu/cases/draftrecommendation.faces/en/60391/html.bookmark

[9] Article 4(4((c) of the Aarhus Convention states, among other things, that a request for environmental information may be refused if the disclosure would adversely affect the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.

[10] Third indent of Article 4(2) of Regulation 1049/2001.

[11] In this regard, the Ombudsman made reference to Judgment of the General Court of 16 April 2015 , Schlyter v Commission, T-402/12, ECLI:EU:T:2015:209, paragraphs 69 and 71.

[12] Third indent of Article 4(2) of Regulation 1049/2001.

[13] Judgment of the Court of 16 July 2015, ClientEarth v Commission, C-612/13 P, ECLI:EU:C:2015:486.

[14] Third indent of Article 4(2) of Regulation 1049/2001.

[15] Judgment of the Court of 16 July 2015, ClientEarth v Commission, C-612/13 P, ECLI:EU:C:2015:486.

[16] Third indent of Article 4(2) of Regulation 1049/2001.

[17] Judgment in Schlyter v Commission, cited above, ECLI:EU:T:2015:209.

[18] Third indent of Article 4(2) of Regulation 1049/2001.

[19] Third indent of Article 4(2) of Regulation 1049/2001.

[20] Third indent of Article 4(2) of Regulation 1049/2001.

[21] Footnotes 35 in the Ombudsman's recommendation: Among the documents identified by the Commission as falling within the scope of the request were: a letter of 15 April 2010 from the Commission addressed to the Maltese authorities following Greenpeace's reports; the reply from the Maltese authorities, dated 28 April 2010, including annexes such as bluefin tuna catch documents, observer reports from Tunisia and Malta, inspection reports for vessels Aretuza and Leovita; letter dated 14 June 2010 from the Commission to the Maltese authorities pointing out inconsistencies in the provided documents; e-mail from the Maltese authorities requesting an extension of the deadline for replying to the Commission's letter; reply of 21 June 2010 from the Maltese authorities, including annexes such as authorisation from Tunisia, Malta inspection report on bluefin tuna transfer from vessels Mohsen and Alexandre to vessels Leovito and Aretuza, ICCAT transfer declarations between catching vessels and tugs to farm in Tunisia, caging declarations for caging in Malta, Malta inspection reports for Aretuza and Leovito, observers' reports from the bluefin tuna harvest on 7 and 8 April 2010, observations from the operator; e-mail exchange on 10 June 2010 between the Commission and the ICCAT Secretariat on the authorisation status of the vessel Mohsen and Alexandre.

Footnote 37 in the Ombudsman's recommendation: Among the documents identified by the Commission as falling within the scope of the request were: the Commission's decision requesting Malta to open an administrative inquiry; the final report on the administrative inquiry from the Maltese authorities; the Commission's evaluation of the final report, communicated to Malta; the Commission Decision establishing an action plan; correspondence between Malta and the Commission concerning identified irregularities in the control of bluefin tuna activities in Malta.

[22] Judgment of the Court of 21 June 2012, IFAW Internationaler Tierschutz-Fonds gGmbH v European Commission, C-135/11 P, ECLI:EU:C:2012:376, paragraphs 58, 61-62.

[23] Judgment of the Court 21 July 2011, Sweden v European Commission and MyTravel, C-506/08 P, ECLI:EU:C:2011:496, paragraph 76.