Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The background to the complaint

1. The complaint concerns the Commission's refusal to grant public access to background documents related to the Commission Communication on Community law enforcement (the 'Communication')[2].

2. The request for public access was made in November 2007 by the European Citizen Action Service ('ECAS'), a Brussels-based NGO. While the Commission granted access to some of the documents covered by the request, it refused access to others. ECAS submitted a confirmatory application on 30 April 2008. It limited its request for access to those documents containing: (i) the statistics on the basis of which the average time for handling complaints was calculated; (ii) a description of the role of the Member States; and (iii) the proposal for prioritisation of complaints.

3. In its response dated 1 August 2008, the Commission granted access to excerpts of the document containing statistics. However, the Commission refused to grant access to 21 documents, namely, those concerning the role of the Member States and the proposal for prioritisation of complaints. The refusal was based on the exception in Article 4(3), second paragraph, of 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 ('Regulation 1049/2001')[3], aimed at protecting the institutions' decision-making process. As regards one document (document 21), the Commission also invoked the exception in Article 4(2), second indent, of Regulation 1049/2001, aimed at protecting court proceedings and legal advice.

4. In its response to ECAS's confirmatory application, the Commission stated that documents 1 to 20 were working papers and informal documents drafted at the early stages of the Communication's preparation. The Commission refused access to these documents, or to any parts thereof, arguing that they did not necessarily reflect the institution's position but merely the Commission's services' perception of the points discussed. According to the Commission, the documents in question were prepared for internal information, consultation and to facilitate an exchange of opinions. They were drafted for internal use as part of deliberations and preliminary consultations within the Commission. They were not drafted with the intention of being communicated to the public.

5. The Commission argued that disclosure of the documents would put in the public domain assessments and opinions relevant to the Commission's actions and policy in the sensitive field of Union law enforcement, as well as views and preliminary opinions on issues submitted to the College of Commissioners. Doing so would, the Commission argued, be highly detrimental to its decision-making process.

6. In the Commission's view, when dealing with such sensitive issues, it is extremely important that its services feel free to exchange ideas and comments openly, without being concerned about possible and unpredictable external reactions to those individual contributions. This process allows the services to provide the Commissioners with all the relevant information they need to take a well-balanced decision. In the present case, such internal discussions have proved valuable in formulating the decision adopted by the College. If the Commission's services had known that their opinions and comments on these important topics were to be released afterwards, a significantly different attitude would have been adopted in the exchange of views, thereby limiting the scope and depth of the preparatory work. This would have weakened the decision-making process.

7. The Commission also pointed out that, since the preparations included both oral and written, as well as recorded and unrecorded, material, making public those comments and opinions that happened to be recorded would not present a full and clear picture of the preparatory process. This could lead to misunderstandings with regard to the position of both the Commission as a whole and its individual services. Therefore, according to the Commission, disclosure of the documents concerned, or relevant parts thereof, would seriously harm the secure and trustworthy environment the Commission's services need to allow for a free exchange of views on questions of major importance such as the subject matter at hand.

8. The Commission stated that the comments and opinions of the different Directorates-General, put forward in document 21, were submitted in reply to the inter-service consultation launched by the Secretariat-General. Even if this consultation is more formal than the preceding informal exchanges, the opinions therein reflect diverging assessments of the situation regarding the handling of infringement proceedings, as well as of the proposals submitted by the Secretariat-General in the draft Communication.

9. According to the Commission, putting these assessments and opinions in the public domain would undermine collegiality in Commission decision-making on a matter which is at the heart of the powers which have been devolved on it by the Treaties. Furthermore, the comments made by the Directorates-General were, at the time of the request for access, being considered during the process of drafting the rules and guidelines for the practical implementation of the principles laid down in the Communication.

10. On the basis of the above, the Commission considered that disclosure of the comments and opinions given in reply to the inter-service consultation would be detrimental to its decision-making process.

11. The Commission further argued that disclosure of the opinion of its Legal Service, which constituted an attachment to document 21, would undermine the protection of legal advice, since the issue concerned was of a sensitive nature and the opinion had implications for the practical implementation of the Communication.

12. In respect of the question whether partial access could be granted, the Commission argued that disclosure of any part of the documents concerned would reveal internal discussions on sensitive issues. The Commission, therefore, considered the documents to be covered in full by the invoked exceptions to access.

13. The Commission also considered that, particularly as the Communication is publicly available, the public interest in disclosure of the documents concerned did not outweigh the need to protect the Commission's decision-making process and its ability to rely on independent legal advice in the field of Union law enforcement.

The subject matter of the inquiry

14. In its complaint to the European Ombudsman, ECAS alleged that the Commission wrongly dealt with its request for access to documents.

15. In support of its allegation, ECAS argued that the Commission failed to:

1. provide pertinent arguments in support of its decision to refuse access under Regulation 1049/2001;

2. make an individual assessment of each document covered by the request for access;

3. balance the public interest against the interest of the institution;

4. explain why its list of refused documents did not contain a note from DG Justice, Freedom and Security; and

5. respond to the confirmatory application within the prescribed deadline.

16. ECAS claimed that the Commission should provide access to the relevant documents.

The inquiry

17. The Ombudsman asked the Commission to submit an opinion on the complaint by 30 April 2009. Having asked for three extensions to that deadline, the Commission submitted its opinion on 30 July 2009. The opinion was forwarded to ECAS, which submitted its opinion on 17 November 2009.

18. During the course of his analysis of the case, the Ombudsman's Office carried out two inspections of the Commission's file: on 13 July 2010; and on 14 November 2012. The inspection reports were forwarded to ECAS, which was invited to make observations. ECAS did not submit any observations on them.

The Ombudsman's analysis and conclusions

A. Allegation of incorrect handling of access request and related claim

Arguments presented to the Ombudsman

On the argument that the Commission failed to provide pertinent arguments in support of its decision to refuse access

19. ECAS argued that, according to established case-law of the Court of Justice of the European Union (CJEU), in order to refuse access to a document, the institution must demonstrate that the document in question falls within the exceptions provided for in Regulation 1049/2001[4]. The mere fact that a document concerns an interest protected by an exception cannot justify the application of that exception. The risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical[5]. According to ECAS, the Commission's argument, in respect of a number of documents to which it refused access, that these documents were drafted for internal use only, is not a justification for refusing access under Regulation 1049/2001. The same applies for the Commission's argument that the documents do not state the formal position of the Commission, as well as the argument that the preparation of the Communication included both oral and written material. ECAS points out that all deliberations are bound to include some form of unrecorded material and the Commission's argument would thus imply that no documents could be disclosed.

20. ECAS further argued that the Commission's statement that the documents contain information on its 'strategy' or 'policy' is insufficient for them to fall within one of the exceptions in Regulation 1049/2001.

21. In ECAS's view, the Commission has not sufficiently demonstrated why disclosure of document 21, that is, the advice of the Legal Service, would undermine the independence of that service or in what way such advice would be of a particularly sensitive nature. There is no general need for confidentiality in respect of advice from the Legal Service in relation to legislative matters[6]. The CJEU has pointed out that, just because a particular document contains legal advice, this is not a sufficient justification to benefit from the exception in Article 4(2), second indent. The institution refusing access has to show that disclosure would undermine the protection of that advice and that there is no overriding public interest justifying disclosure[7]. The Commission would have to show that the independence of the Legal Service may be jeopardised in case of disclosure and that such a risk is reasonably foreseeable and not purely hypothetical[8].

22. ECAS stated that the exception to access set out in Article 4(2), second indent, aims to protect (future) court proceedings. The documents covered by the exception in question are those drawn up solely for the purpose of specific court proceedings. That is, pleadings and other documents lodged with the court, internal documents concerning the investigation of the case, and correspondence concerning the case between the Directorate-General charged with the matter and the Legal Service or lawyers' office[9].

23. In its opinion, the Commission argued that the statements referred to by ECAS as 'non pertinent' had been made in section 3.1 and section 3.2 of the Commission's response to the confirmatory application. The purpose of these was to identify the documents concerned and to explain the context of the decision-making process. The Commission stated that it is important to bear in mind that the decision-making process, with regard to the Communication, relied, to a significant extent, on unrecorded material. The Commission thus considered that restricting public access to the documented parts of the internal deliberations would not provide a full and correct understanding of the matters discussed.

24. The Commission further argued that, an analysis of the documents drafted for the specific purpose of the inter-service consultation showed that disclosure was bound to produce an incorrect understanding of the decision-making process leading up to the adoption of the Communication.

25. The Commission stated that some of the requested documents contained material on its strategy in the field of EU law enforcement. It stated that, according to the case-law, it enjoys a wide margin of discretion in this field[10]. Therefore, putting into the public domain very detailed information on the internal discussions regarding this policy is bound to restrict its flexibility and undermine its decision-making process in individual infringement cases.

26. In respect of the application of an exception to access aimed at protecting legal advice, the Commission referred to the case-law stating that the institution may refuse to disclose "a specific legal opinion ... being of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question.[11]" The Commission argued that this is the case with regard to the document concerned, which deals with a sensitive issue of policy in the field of EU law enforcement and which has implications beyond the particular decision-making process.

27. In its observations on the Commission's opinion, ECAS pointed out, in respect of the Commission's argument that the documents concerned were prepared for internal use and that, if those documents had not been prepared for such use, they would have been made public automatically. Therefore it makes sense to have a right to public access only for documents that are prepared for internal use.

28. ECAS argued that the fact that the documents in question would not result in a full and correct understanding of the matters discussed does not, as such, constitute a ground for refusal to grant access. ECAS further considered that proper administration would have been for the Commission to make notes or take minutes of oral communications and meetings. This is because it is unacceptable not to record the considerations on the basis of which the Commission set out how it intends to exercise its powers in particular areas.

29. In respect of the Commission's argument that some of the documents concerned reflect its strategy and policy, ECAS considered that the Commission had not sufficiently demonstrated how this would undermine its decision-making process. In addition, given that only 'some' of the documents contained such information, access should be granted to those that do not.

30. ECAS considered that, on the basis of how the Commission formulated its opinion to the Ombudsman, the note from the Legal Service appears to deal with a policy issue, not a legal question. It would, therefore, fall outside the scope of Article 4(2), second indent, of Regulation 1049/2001. However, even if the note did contain legal advice, ECAS considered that the Commission had failed to explain why the opinion is of a particularly sensitive nature or has a particularly wide scope[12]. ECAS could not see how an opinion on enforcement of Union law would be of a particularly sensitive nature or would have a particularly wide scope.

On the argument that the Commission failed to make an individual assessment of each document concerned

31. ECAS argued that a concrete assessment has to be carried out in respect of each document covered by the request[13]. It stated that the CJEU has also emphasised that an assessment of documents by reference to categories, rather than on the basis of the actual and precise information contained in those documents is, in principle, insufficient. The examination that an institution has to undertake must enable it to assess specifically whether an exception invoked applies to all the information contained in those documents[14]. In the present case, the Commission denied access to a whole class of documents, thus imprecisely outlining the way in which access to each document would be detrimental to the future decision-making process of the Commission.

32. The Commission acknowledged that Regulation 1049/2001 requires, in principle, the institution to undertake an individual examination of the requested documents. The Commission argued that the detailed description of the documents made in section 3.1 of its response to the confirmatory application showed that it had made such an individual examination in the present case.

33. According to the Commission, the duty to examine the requested documents individually should not be confused with the duty to provide individual reasoning in respect of the refused documents. According to the case-law, it is possible for the Commission to base its decisions on general presumptions which apply to certain categories of documents. This is provided it establishes, in each case, whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose[15]. The Commission argued that, given that the documents concerned are of the same nature, that is, they contain opinions for internal use on the same subject matter, it was entitled to provide its reasoning with regard to groups of documents. It was thus not obliged to give reasons for refusing access to each individual document.

34. ECAS pointed out, first, that the Commission argued that the detailed description of documents in section 3.1 of its response to the confirmatory application showed that it had made an individual examination of the documents concerned. However, the Commission then argued that the purpose of section 3.1 was to identify the documents concerned and to explain the circumstances in which these documents had been produced. According to ECAS, the latter argument implies that, in fact, no individual examination took place. In addition, the fact that the Commission omitted to mention the note from DG Justice, Freedom and Security indicates a lack of diligence and raises doubts as to the purported individual examination of the documents.

35. Second, ECAS further stated that, according to the case-law, it is incumbent on the institution to establish, in each case, whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose[16]. ECAS argued that the Commission did not indicate anywhere why it considers that the general considerations which it believes are applicable to a particular type of document, apply to each and every one of the documents in the present case.

On the argument that the Commission failed to balance the public interest against the interest of the institution

36. ECAS argued that it is incumbent on the institution to ascertain whether there is any overriding public interest justifying disclosure[17]. The Commission did not carry out such a balancing test. The public interest in disclosure of documents relating to the Communication, particularly on the prioritisation system of complaints and the role of the Member States, is very strong and thus outweighs the interests that the Commission states that it is trying to protect by refusing to provide access. The public at large needs to know in which circumstances it is necessary for private individuals to institute judicial proceedings on their own behalf since the Commission is unlikely to handle a complaint as a matter of priority.

37. In respect of document 21, ECAS argued, in particular, that the Commission merely referred to the practical implementation of the Communication without in any way addressing the possible overriding interest that exists in the general public knowing about the legal considerations that informed the Commission's enforcement initiatives.

38. The Commission acknowledged that citizens, civil society, administrations, the European Parliament and national parliaments are all interested in the application of EU law. It argued, however, that the interest of the public in this particular policy field should not be equated with an overriding public interest in disclosure of the requested documents. The Commission found no reason to believe that public access to the documents concerned would enhance the rights of citizens in the field of EU law enforcement. Citizen complaints are an important source of information and the Commission always strives to provide answers and solutions to problems without delay, including the correction of infringements. However, complaints to the Commission should not be regarded as a way of obtaining individual redress. As the Communication points out: "Only a national tribunal can apply remedies like injunctions to the administrations, cancellation of national decisions, damages etc." The Commission, therefore, considered that it correctly concluded that the public interest in disclosure does not outweigh the need to protect its decision-making process and its ability to rely on complete and independent legal advice.

39. The Commission also put forward that, given that the legal advice in question relates to its administrative activities, the public interest in disclosure does not carry the same weight as for legislative activities.

40. In its observations, ECAS pointed out that, just before the sentence quoted by the Commission (see paragraph 38 above), the Communication states that "complainants could in some cases enforce their rights directly at national level in a more efficient way." According to ECAS, this clearly indicates that individual enforcement is not always more effective. In practice, the Commission will be in a much better position to force a Member State to implement EU law, compared to what an individual with limited experience can obtain before national courts which lack expertise in this field.

On the argument that the Commission failed to explain why its list of refused documents does not contain a note from DG Justice, Freedom and Security

41. The Commission confirmed that the background file in respect of the Communication contains a note on the draft Communication produced by DG Justice, Freedom and Security and dated 18 April 2007. Preparatory notes on ECAS's confirmatory application show that this document was examined and that the Commission concluded that access could not be granted. In common with documents 7 to 13 in the list of documents to which access was refused, the note in question contains opinions and comments of the Director-General on the draft Communication. Furthermore, it was produced for internal use only, as part of the informal written consultation of the Commission's services with most experience in the field of application of EU law. The Commission regrets that, due to an administrative error, this document was not mentioned in the list of documents to which access was refused.

On the argument that the Commission failed to respond to the confirmatory application within the prescribed deadline

42. The Commission pointed out, that by letter dated 19 June 2008, it had acknowledged that it was not able to finalise the assessment of the documents concerned within the time limits set out in Regulation 1049/2001 and had apologised for that fact.

The Ombudsman's assessment

On the argument that the Commission failed to provide pertinent arguments in support of its decision to refuse access

43. In refusing access to all the requested documents, the Commission relied primarily on Article 4(3), second paragraph, of Regulation 1049/2001, which provides that:

"Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

44. According to the case-law, a three-stage examination has to be made in order to determine if an exception to access under Regulation 1049/2001 applies[18].

45. First, it has to be determined whether the requested documents fall within the category covered by the invoked exception to access in Article 4. Second, it has to be determined whether disclosure of the documents concerned would undermine (in respect of legal advice) or seriously undermine (in respect of the decision-making process) the protected interest. That is, a harm test has to be carried out. Finally, if it is established that disclosure would cause harm to the protected interest, the institution must determine, by carrying out a balancing exercise, whether an overriding public interest in disclosure, nevertheless, exists.

46. In respect of the Commission's application of Article 4(3), second paragraph, the Ombudsman notes that the document concerned contains "opinions for internal use as part of deliberations and preliminary consultations within the institution concerned".

47. Moving on to the harm test, the Ombudsman first notes that, according to established CJEU case-law, the exceptions to public access to documents must be interpreted and applied strictly, so as not to frustrate the application of the general principle that the public should be given the widest possible access to documents held by the institutions[19].

48. In addition, the harm test means that the mere fact that a document relates to an interest protected by an exception is not, in itself, sufficient to justify the application of that exception[20]. The application of an exception to access can be justified only if the institution shows that the risk of the protected interest being (seriously) undermined[21] is reasonably foreseeable and not purely hypothetical[22]. The examination carried out by the institution to determine that a protected interest would be (seriously) undermined by public disclosure of a requested document must be apparent from the reasoning set out in the decision limiting public access[23].

49. The Ombudsman notes that the Commission's decision to refuse access under Article 4(3), second paragraph, was based on the arguments that the documents contained information that: (i) was not intended for the public; (ii) did not necessarily reflect the institution's position; (iii) was divergent; and (iv) related to Commission policy in a sensitive field. The Commission further argued that the preparations leading to the Communication also contained unrecorded material and that access to the documents in question would, therefore, not give a full and clear picture of the preparatory process, but could lead to misunderstandings.

50. The Ombudsman considers that the fact that the Communication was also based on unrecorded material, and that the existing documents therefore did not fully explain the Commission's decision-making process, is not a relevant factor as regards the application of Article 4(3), second paragraph.

51. The Ombudsman notes that the refusal to grant access was not based on Article 4(2), third indent, of Regulation 1049/2001, which may be applied to protect a specific ongoing infringement procedure[24], but rather to Article 4(3), second paragraph.

52. He also notes that the Commission's refusal to grant access was also not based on Article 4(3), first paragraph, which aims to protect a decision-making process while that process is ongoing, through the avoidance, for instance, of undue external pressure on that process. At the time the present request for access to documents was made, the Commission's policy and priorities in respect of infringements of EU law had already been published in the Communication. This means that the relevant decision-making process in relation to the adoption of that policy was over. The Ombudsman considers that, at such point in time, when the relevant policy has been established, an institution's decision-making process can only be seriously undermined if, due to the particularly sensitive nature of the documents concerned (see paragraph 58 below), public disclosure would, for instance, make authors of internal opinions reticent about expressing their frank and comprehensive views in similar future processes.

53. In addition, as the Ombudsman has pointed out in previous decisions, if those documents that were drafted with the intention of being communicated to the public had to be released, there would be no need for Regulation 1049/2001[25]. The Commission's argument that the documents contained information that was not intended for the public is, therefore, not a valid argument for refusing public access.

54. While Regulation 1049/2001 seeks to enable citizens to participate more closely in decision making, thus making the institutions more effective and more accountable to citizens, it is not a condition for granting public access that such access will necessarily give a full and accurate understanding, on the part of citizens, of the institution's decision-making process. When obtaining public access to documents on the basis of Regulation 1049/2001, the documents are not presented to the public with any indication that they would provide a complete and accurate account of the institution's decision-making process, because they were not drafted for that purpose. A full understanding of a document, to which access is granted, would often depend on a detailed knowledge of the particular context in which it was drafted and used, as well as on a specific knowledge of the services to which it was addressed. The fact that all members of the public might not hold such knowledge does not normally mean that to disclose such a document would seriously undermine the institution's decision-making process.

55. In respect of the Commission's argument that the documents contained views that do not necessarily reflect its position as an institution (argument ii)) and views that are divergent (argument iii)), the Ombudsman points out that documents containing opinions for internal use as part of deliberations and preliminary consultations never "necessarily reflect" an institution's opinion. That is due to the very nature of deliberations and preliminary consultations and is not, as such, a valid reason for the exception in Article 4(3), second paragraph, to apply. It should be borne in mind that the purpose of Regulation 1049/2001 is to allow citizens to become more aware of how the EU public administration, which works on behalf of citizens, functions. As such, the Regulation's very aim is to allow access to various and divergent points of view. These include those points of view that do not reflect the institution's final position, but which enabled it to adopt that position. The Ombudsman underlines that revealing the various and divergent points of view is the very aim of the rules on public access to documents. It would be naive, even highly misleading, to try to make the public believe that, because the Commission acts as a college, there are no divergent views put forward during the process leading up to the final decision it takes. The principle of collegiality means that everyone agrees on a common approach. It does not mean that significant discussions did not take place to arrive at that common approach. The Ombudsman cannot see how it could undermine the collegiality of the final decision to reveal that different viewpoints were discussed in order to reach that decision.

56. The Commission also argues (argument iv)) that a disclosure of the various and divergent points of view, expressed by the Commission's services in such a sensitive field, could cause a whole range of unpredictable external reactions. Indeed, a substantially different attitude would have been taken, by the Commission's services, to the nature of the exchange of views, had they known that their views would be made public. In this respect, the Ombudsman notes that the Commission states that this would have "weakened" the decision-making process, which is clearly not the same as seriously undermining it, which is the prerequisite for refusing access.

57. In respect of the argument that the information in the documents related to the Commission policy in a sensitive field, where it enjoys a wide margin of discretion, the Ombudsman, first, agrees that the powers of enforcement established under Article 258 TFEU are important and their exercise, in particular cases, can be a sensitive issue. The reason for this is that, if pursued by the Commission, every infringement case leads the Commission to criticise a Member State for non-compliance with EU law and, at the same time, to encourage that Member State to take the necessary measures to comply with EU law. It can, therefore, be argued that the Commission should, in principle, be able to complete such important and sensitive negotiations without undue pressure from third parties. However, the present documents do not relate to any specific infringement case against any Member State. The Ombudsman cannot, therefore, agree that the documents in question are particularly sensitive. His inspection of their content reinforces that view. He also cannot see how the Commission's discretion to take up specific infringement procedures, clearly established by case-law[26], could in any way be restricted by public disclosure of documents containing internal discussions on what the general policy in relation to infringement procedures should be (especially after that policy has been established). The fact that the public may have more information about how the Commission opts to make use of its wide margin of discretion, does not mean that the Commission's freedom to make use of its wide margin of discretion would be curtailed.

58. The Commission also states that its services would exercise self-restraint if they knew that their views would become public. The Ombudsman has already set out a number of specific situations in which access may be denied on the basis of the exception in Article 4(3), second paragraph. The Ombudsman found that a risk to the decision-making process could occur if documents containing views that are self-critical, speculative or controversial are disclosed[27]. Officials could, he agrees, be reticent about expressing such views if there was an expectation that these views would be made public. However, the Commission has not argued, in the present case, that the views expressed were particularly self-critical, speculative or controversial. Rather, the Commission has simply, and in an extremely vague manner, referred to the fact that the documents contain the views of its services. It should be underlined that this broad statement could never be deemed to apply, as a general rule, since it would imply that the Commission could never make public any views of its services, irrespective of their actual content. Given the nature of the issue concerned, the Ombudsman is not surprised to note, from the inspection of the documents, that the views put forward are generally based on common sense, constituting practical advice based on the experience of the Commission's services in dealing with EU law infringement issues. The Ombudsman does not find the views expressed to be particularly self-critical, speculative or controversial.

59. It should also be noted that, if the officials and services of the institution are not confident to express self-critical, speculative or controversial views, out of fear that they will be made public, then the institution has to take greater care to provide information to those officials and services about the protection which is accorded to such views by Regulation 1049/2001.

60. On the basis of the above, the Ombudsman does not consider that the Commission provided sufficiently substantiated and convincing arguments to warrant the application of Article 4(3), second paragraph, of Regulation 1049/2001. In other words, arguments to show that disclosure of the documents concerned would seriously undermine its decision-making process.

61. In respect of the note from the Legal Service, the Commission also relied on the exception to access set out in Article 4(2), second intent. Article 4(2) provides, so far as relevant, that:

"The institution shall refuse access to a document where disclosure would undermine the protection of... court proceedings and legal advice ... unless there is an overriding public interest in disclosure."

62. It first has to be determined whether the document falls within the category covered by the invoked exception. In this regard, the Ombudsman finds that only parts of the document in question can be considered as dealing with legal issues, whereas other parts relate rather to policy or technical questions.

63. In respect of the non-legal issues in the note from the Legal Service, those parts of the document could possibly fall under the exception to public access in Article 4(3), second paragraph, as analysed above. The Ombudsman recalls that the purpose of that exception is to allow for frank views to be expressed without reticence. However, the Ombudsman does not, when carrying out the harm test in respect of the note from the Legal Service, see anything surprising, self-critical, speculative or controversial in the expressed views, which would make such reticence reasonably foreseeable, except possibly in respect of the first sentence of the last paragraph of the note.

64. As regards the legal aspects of the Legal Service note, the Ombudsman notes the Commission's argument that the issue concerned is of a sensitive nature and that the legal opinion has implications for the practical implementation of the Communication. In respect of those parts of the document, the Ombudsman acknowledges that the content of the note may relate to the implementation of the Communication. However, the Ombudsman does not find, on an examination of the content of the document, that these parts of the document are particularly sensitive. The Ombudsman, therefore, does not consider that the Commission has provided sufficiently substantiated and convincing arguments to warrant the application of Article 4(2), second indent, of Regulation 1049/2001. In other words, arguments to show that disclosure of the document concerned would undermine the protection of legal advice.

65. In light of the above, the Ombudsman finds that the Commission has committed an act of maladministration in handling the application for access to documents. He, therefore, makes a corresponding draft recommendation, in accordance with Article 3(6) of the Statute of the European Ombudsman.

On the argument that the Commission failed to make an individual assessment of each document covered

66. The Ombudsman considers that the way in which the documents concerned are described in the Commission's response to the confirmatory application shows that the Commission carried out an individual assessment of the documents to determine their content.

67. Thus, as concluded above, while the Ombudsman is not convinced by the reasoning provided by the Commission when it tries to establish that the content of the individually-assessed documents justifies the application of an exception to public access, the Ombudsman finds no maladministration by the Commission in relation to the need to carry out an individual assessment of the documents concerned.

On the argument that the Commission failed to balance the public interest against the interest of the institution

68. As noted in paragraph 45 above, if it has been established that disclosure would cause harm to a protected interest, the final stage of the examination of whether an exception to public access applies is that the institution must determine, by carrying out a balancing exercise, whether an overriding public interest in disclosure, nevertheless, exists.

69. In the present case, the Ombudsman is not convinced that releasing the documents concerned to the public would cause harm. It would, therefore, be unnecessary for the Ombudsman to take a position on the balancing exercise, or lack thereof, carried out by the Commission. There are, therefore, no grounds to pursue this aspect of the complaint at the present stage of the inquiry.

On the argument that the Commission failed to explain why its list of refused documents does not contain a note from DG Justice, Freedom and Security

70. Given that the Commission has provided an explanation as to why the list of refused documents did not contain the note in question, the Ombudsman finds no further grounds to pursue this aspect of the complaint.

71. The Ombudsman notes, however, that, at the inspection of the Commission's file, his services found that document 21 contained two additional annexes not listed in the Commission's response to ECAS's confirmatory application. These were a response from DG Taxation and Customs Union and a response from DG Energy and Transport, both dated 4 July 2007. Accordingly, these documents were not covered by the Commission's analysis of the request for public access. This issue will be addressed in the Ombudsman's draft recommendation.

On the argument that the Commission failed to respond to the confirmatory application within the prescribed deadline

72. The Ombudsman notes that the Commission should make every effort to respond to requests for access in due time. He notes that, while processing the request for access, the Commission had already acknowledged that there was a delay and apologised for it. The Ombudsman sees no useful purpose in pursuing this matter in the present case, and thus finds that no further inquiries are justified in respect of this aspect of the complaint.

B. The draft recommendation

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendation to the Commission:

The Commission should give access to the documents in question (including (a) the note from DG Justice, Freedom and Security, dated 18 April 2007, and (b) the responses to the inter-service consultation provided by DG Taxation and Customs Union and DG Energy and Transport, both dated 4 July 2007, which were not listed in the response to the confirmatory application) or provide valid reasons for not doing so.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the European Ombudsman's Statute, the Commission shall send a detailed opinion by 30 November 2013. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 27 August 2013

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] Communication from the Commission - A Europe of Results - Applying Community Law, COM(2007) 502 final of 5 September 2007.

[3] OJ 2001 L 145, p. 43.

[4] Case T-110/03, Sison v Council [2005] ECR II-1429, paragraph 60.

[5] Case T-391/03, Franchet and Byk v Commission [2006] ECR II-2023, paragraph 115.

[6] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraph 59.

[7] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraphs 40 and 44.

[8] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraphs 62 ff.

[9] Case T-36/04, API v Commission [2007] ECR II-3201, paragraph 60; Case T-391/03, Franchet and Byk v Commission [2006] ECR II-2023, paragraph 90.

[10] Joined Cases C-20/01 and C-28/01, Commission v Germany [2003] ECR I-3609, paragraph 30.

[11] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraph 69.

[12] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraph 69.

[13] Case T-36/04, API v Commission [2007] ECR II-3201, paragraph 55.

[14] Case T-2/03, VKI v Commission [2005] ECR II-1121, paragraph 75; and Case T-237/02, TGI v Commission [2006] ECR II-5131, paragraph 86; and Case T-36/04, API v Commission [2007] ECR II-3201, paragraph 56.

[15] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraph 50.

[16] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraph 50.

[17] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraph 44.

[18] Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723.

[19] Case C-64/05 P, Sweden v Commission [2007] ECR I-11389, paragraph 66; Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraph 36; and Case T-391/03, Franchet and Byk v Commission [2006] ECR II-2023, paragraph 84.

[20] Case T-20/99, Denkavit Nederland v Commission [2000] ECR II-3011, paragraph 45.

[21] As noted in paragraph 45, whereas the exception to access set out in Article 4(2) applies if public access would undermine the protected interest, the exception to access set out in Article 4(3) applies only if the decision-making process would be seriously undermined by public access.

[22] See for example Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council [2008] ECR I-4723, paragraph 43.

[23] Case T-2/03, VKI v Commission [2005] ECR II-1121, paragraph 69, and Case T-391/03, Franchet and Byk v Commission [2006] ECR II-2023, paragraph 115.

[24] Article 4(2) provides, so far as relevant, that "[t]he institution shall refuse access to a document where disclosure would undermine the protection of ... the purpose of ... investigations ... unless there is an overriding public interest in disclosure."

[25] Case 2293/2008/(BB)(FOR)TN, paragraph 52, available at: www.ombudsman.europa.eu/cases/decision.faces/en/12439/html.bookmark

[26] See for example Joined Cases C-20/01 and C-28/01, Commission v Germany [2003] ECR I-3609, paragraph 30.

[27] See the Ombudsman's decision in Case 355/2007/(TN)FOR, paragraph 49.