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Decision in case 1245/2015/NF on the European Commission’s refusal to give full access to documents concerning the labelling of Croatian wine

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This complaint was treated as confidential. This document has therefore been anonymised.

  • Case: 1245/2015/NF
    Opened on 08 Oct 2015 - Recommendation on 15 Feb 2017 - Decision on 24 Nov 2017
  • Institution(s) concerned: European Commission

The case concerned the European Commission’s handling of a request for public access to documents. The complainant is a Slovenian agricultural cooperative that produces “Teran” wine - a red wine of the Kras region in Western Slovenia that benefits from an ‘protected designation of origin’ under EU law. The complainant asked for access to any documents concerning Croatia’s request to use of the name “Teran” for wines produced in Croatia.

The Commission refused full disclosure of certain documents. The Ombudsman was not convinced by the Commission’s reasons for not giving full access and she therefore recommended that the Commission fully disclose the documents.

The Commission did not follow the Ombudsman’s recommendation, on the basis that its original decision was correct and in any event the documents had been made public by the Croatian authorities.

The Ombudsman regrets that the Commission did not follow her recommendation. She confirms that the Commission’s continued refusal to give full access to the documents constitutes maladministration.

Background to the complaint

1. The complaint was made by a Slovenian agricultural cooperative that produces a red wine called Teran. It concerned a refusal by the European Commission to make public[1] documents regarding a restriction on the use of the Teran name in Croatia.

2. Teran wine produced in Slovenia benefits from a ‘protected designation of origin (PDO)’[2] under EU law. This designation ensures that the wine is of a certain quality, inherently linked with the region. The PDO also protects producers from imitation or misuse of the product name by producers outside of the protected region. At the same time, consumers can easily recognise traditional quality products through the EU PDO logo and can rely on their authenticity.

3. In the context of joining the EU, Croatia requested that the Commission allow Croatian producers to continue using the Teran name for their wine, since wine from Teran grapes is also traditionally produced on Croatian territory.[3]

4. In 2015, the complainant asked the Commission for public access to any documents in which Croatia had requested the Commission to allow Croatian wine producers to continue to use the Teran name. The Commission identified one document and refused access to it. In response to the complainant’s request for review of its decision to refuse access, the Commission identified five documents falling within the scope of the access request. The Commission then gave full access to one document (‘document (1)’) but only partial[4] access to the other four documents (‘documents (1a), (1b), (1c) and (2)’).[5]

5. Concerned that the Commission had failed to handle the request for access to the documents properly, the complainant then turned to the Ombudsman. The complainant wanted the Commission to give full access to the documents.

6. Having received the Commission’s reply on the complaint and the complainant’s comments on the position expressed by the Commission, the Ombudsman inspected the Commission’s file. The Ombudsman was not convinced by the Commission’s arguments for not giving full access to the documents. She therefore made a recommendation[6] to the Commission that it should give full access to the relevant documents, with the exception of personal data (see below). The present decision takes into account the Commission’s opinion on the Ombudsman’s recommendation, as well as the complainant’s comments.

The Commission’s refusal to give full access to the letters sent by the Croatian authorities in relation to the use of the name Teran for wine produced in Croatia

The Ombudsman's recommendation 

7. The Commission argued that non-disclosure of certain parts of the four documents would be warranted to protect personal data[7] and commercial interests[8] of wine producers and the Commission’s then ongoing decision-making process[9] on whether to grant the exception for the use of the name Teran requested by Croatia. The Commission did not consider there to be any overriding public interest in disclosure.

8. The Ombudsman took the view that the Commission had correctly relied on the exception for the protection of personal data. However, the Ombudsman found that the Commission was otherwise wrong to refuse full access to the four documents.

9. Regarding the protection of commercial interests, the Ombudsman considered that the documents did not contain any information that would be covered by this exception. The Commission had also failed to identify concretely which commercial interests would, in its view, be undermined by disclosure of the documents.

10. Concerning the protection of the ongoing decision-making process, the Ombudsman took the view that the Commission had not shown that there was a real risk that the disclosure of the documents would result in external pressure of such a character and of such an intensity as to seriously undermine the Commission’s decision-making process. Rather, disclosure of the documents would have allowed the stakeholders to engage with the Commission and thus to improve its decision-making.

11. Finally, the Ombudsman considered that the Commission was acting under delegated powers in considering whether or not to grant the exception for the use of the name Teran requested by Croatia. As a consequence, the documents should benefit from the highest possible level of transparency[10].

12. The Ombudsman therefore found that the Commission’s refusal to give full access to the documents, with the exception of the personal data, constituted maladministration. The Ombudsman made the following recommendation to the Commission:

The Commission should (i) grant access to document (1b), with the exception of the personal data, and should (ii) fully disclose documents (1a), (1c) and (2).

13. In reply to the Ombudsman’s recommendation, the Commission referred to its previous arguments for not giving full access to the documents. The Commission considered that its decision on the access request was, at the point in time it was taken, fully in line with the EU rules on public access to documents and well as the relevant case-law.

14. The Commission did not consider it necessary to follow up on the Ombudsman’s recommendation, given that the Croatian Ministry of Agriculture had published the documents in question on its website[11] on 5 April 2017. The Commission thus considered that the documents were already publicly available.

The Ombudsman's assessment after the recommendation

15. The Ombudsman regrets that the Commission did not follow her recommendation to give public access to the documents in question. The Commission has not addressed the arguments set out in her recommendation.

16. The Ombudsman notes the Commission’s argument that no action was needed on its part because a Member State authority had already made the documents publicly available. However, publication by a non-EU authority does not negate the Commission’s obligations

17. Transparency is an essential aspect of good governance. The principle of transparency finds specific expression in the fundamental right of access to documents[12]. This fundamental right is governed by specific EU rules which are binding on the Commission[13].

18. The Ombudsman maintains her view that the Commission should have given full public access to the documents, with the exception of personal data. Publication by a third party does not alleviate the Commission of its transparency obligations. In any event the Ombudsman notes that the documents in question are in fact no longer available on the Croatian government’s website.

19. The Ombudsman therefore notes with concern that the Commission has rejected her recommendation in this regard. She also notes, however, that the complainant in this case has obtained access to the requested documents as a result of their (temporary) publication by a Member State. Nevertheless, the Ombudsman would expect the Commission to release the documents in the future, were it to receive another request for public access to these documents.

Conclusion

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

The Commission’s continued refusal to grant access to document (1b), with the exception of the personal data, and to grant full access to documents (1a), (1c) and (2) constitutes maladministration.

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

 

Emily O'Reilly

European Ombudsman

Strasbourg, 24/11/2017

 

 

[1] Regulation 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.

[2] See the relevant entry in the Commission’s e-bacchus database: http://ec.europa.eu/agriculture/markets/wine/e-bacchus/index.cfm?event=pdfEccgi&language=EN&eccgiId=8347

[3] The Commission has meanwhile adopted a Delegated Regulation that specifies the conditions under which the name Teran may appear on the labelling of Croatian wine. See Commission Delegated Regulation 2017/1353 of 19 May 2017 amending Regulation (EC) No 607/2009 as regards the wine grape varieties and their synonyms that may appear on wine labels, OJ 2017 L 190, p. 5.

[4] The Commission argued that full access to documents (1a), (1b), (1c) and (2) would undermine the protection of privacy and integrity of the individual; the protection of commercial interests; and the protection of an ongoing decision-making process. See Articles 4(1)(b), 4(2) first indent, and 4(3) of Regulation 1049/2001.

[5] For further information on the background to the complaint, the parties’ arguments and the Ombudsman’s inquiry, please refer to the full text of the Ombudsman’s recommendation available at: https://www.ombudsman.europa.eu/en/cases/recommendation.faces/en/76080/html.bookmark

[6] The Ombudsman’s recommendation is available at: https://www.ombudsman.europa.eu/en/cases/recommendation.faces/en/76080/html.bookmark

[7] Article 4(1)(b) of Regulation 1049/2001.

[8] Article 4(2) first indent of Regulation 1049/2001.

[9] Article 4(3) of Regulation 1049/2001.

[10] Recital 6 of Regulation 1049/2001.

[11] The Commission gave the following link: http://www.mps.hr/default.aspx?id=19019

[12] Article 42 of the Charter of Fundamental Rights of the European Union. 

[13] Regulation 1049/2001.