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Decision in case 108/2018/FOR on the European Commission’s refusal to grant public access to documents related to an infringement procedure against Spain

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  • Case: 108/2018/FOR
    Opened on 09 Feb 2018 - Decision on 12 Apr 2018
  • Institution(s) concerned: European Commission

The case concerned the European Commission’s failure to give access to documents concerning an ongoing infringement procedure against Spain related to the EU’s Water Framework and Habitats Directives.

The complainant argued that there was an ‘overriding public interest’ in the disclosure of the documents.

The Ombudsman found that the Commission’s decision was in line with the applicable rules on access to documents. She thus concluded that there was no maladministration on the part of the Commission and closed the case.

Background to the complaint

1. On 7 September 2017, the complainant, a Spanish association, asked the European Commission for access to the file of an ongoing infringement procedure against Spain (hereinafter, ‘the requested documents’). The infringement procedure in question concerned Spain’s compliance with Directive 92/43/CEE[1] (the ‘Habitats Directive’) and Directive 2000/60/EC[2] (the ‘Water Framework Directive’), notably regarding the overuse of aquifers that supply water to the National Park of Doñana[3].

2. On 3 October 2017, the Commission replied to the complainant and refused to grant access to the documents in question. In doing so, it made reference to an exception set out in the EU’s rules on public access to documents (Regulation 1049/2001) by which access to documents can be refused for “the protection of the purpose of inspections, investigations and audits”[4].

3. On 6 October 2017, the complainant asked the Commission to review its decision (by making a so-called ‘confirmatory application’, as set out under Regulation 1049/2001).

4. The Commission replied on 19 December 2017 confirming its previous decision.

5. Dissatisfied with this response, the complainant turned to the Ombudsman.

The Ombudsman’s inquiry

6. The Ombudsman opened an inquiry into the complainant’s concern that the Commission was wrong in refusing access to the infringement file.

7. The Ombudsman analysed the complainant’s arguments, the Commission’s initial decision and its reply to the confirmatory application. The Ombudsman also inspected the Commission’s file.  

Arguments made by the complainant and the institution

8. The complainant pointed to the EU’s rules on access to information in environmental matters (the Aarhus Regulation), notably the provision that  “an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment[5]. The complainant argued that nitrate pollution in the marshlands of the Doñana Park, resulting from the use of pesticides and intensive farming activities, constitutes an ‘emission into the environment’, as envisaged under the Regulation. As a result, it argued that the Commission should grant access to the requested documents since there is an overriding public interest in their disclosure.

9. The Commission based its decision to refuse access on established EU case-law regarding access to documents in ongoing infringement proceedings[6]. It argued that disclosing the documents during the administrative phase of the infringement procedure would undermine “the climate of mutual trust” between the Commission and the Member State under investigation.

10. In addition, the Commission stressed that the presumption of public interest in disclosure laid down in the Aarhus Regulation does not apply in this case, as the requested documents concern an investigation into a possible infringement of EU law and do not contain information about “emissions into the environment”.

The European Ombudsman's assessment

11. EU case-law has established that, for an infringement procedure to be effective, it is necessary to ensure that the procedure is carried out in “a climate of mutual trust” between the Commission and the Member State in question. Public disclosure of documents relating to the infringement procedure might, the Court stated, undermine this climate of mutual trust. As such, the Commission can rely on this general presumption to refuse access to documents related to an ongoing infringement procedure.

12. As the infringement proceeding against Spain is ongoing, the Ombudsman accepts that this general presumption of confidentiality applies to the requested documents. However, if the person or entity requesting access to the documents can demonstrate that there is an overriding public interest in disclosure, this general presumption can be overturned.

13.  The complainant argues that, according to Article 6 of the Aarhus Regulation an overriding public interest exists for information related to “emissions into the environment”, and that public access should therefore be granted to such information.

14. The Ombudsman’s inquiry team found that the infringement file concerns information about the alleged overuse of aquifers in the National Park of Doñana. It does not therefore contain “information related to emissions into the environment” in the sense of Article 6(1) of the Aarhus Regulation.

15. In any event, the Ombudsman notes that Article 6(1) of the Aarhus Regulation also states that the obligation to disclose information relating to emissions does not apply toinvestigations, in particular those concerning possible infringements of Community law”.

16. The Ombudsman therefore accepts that the presumption of an overriding public interest in disclosure did not apply in this case.

17. In light of the above, the Ombudsman considers that the Commission’s decision not to give access to the requested documents is in line with the applicable rules on access to documents.


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

There was no maladministration by the European Commission in refusing access to the requested documents.

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


Emily O'Reilly

European Ombudsman

Strasbourg, 12/04/2018


[1] Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992, p. 7–50.

[2] Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, 22.12.2000, p. 1–73.

[3] The National Park of Doñana occupies the right bank of the Guadalquivir River at its estuary on the Atlantic Ocean. It is notable for the great diversity of its biotopes. See http://whc.unesco.org/en/list/685

[4] Article 4(2), third indent, of Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p.43.

[5] 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 L 264, 25.9.2006, p. 13–19.

[6] Judgment of the Court of 14 November 2013 in Joined Cases C-514/11 P and C-605/11 P, LPN and Republic of Finland v European Commission, ECLI:EU:C:2013:738, paras 65, 66 and 68 and judgment of the Court of 16 July 2015 in case C-612/13 P, ClientEarth v European Commission, ECLI:EU:C:2015:486, para 79.