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Proposal of the European Ombudsman for a solution in case 445/2016/JAS on the refusal of the European Commission to grant public access to its file on a medical product

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  • Case: 445/2016/JAS
    Opened on 07 Jul 2016 - Recommendation on 24 Nov 2017

Made in accordance with Article 3(5) of the Statute of the European Ombudsman[1]

The background to the complaint

1. The complainant is the director of a now insolvent German company that produced an asthma inhaler invented by the complainant. Since 2011, the complainant has been involved in a legal dispute with the European Commission before the EU courts over the Commission’s inaction following Germany’s prohibition to market the inhaler. After the Court of Justice had set aside[2] an earlier judgment by the General Court[3], the General Court ruled, in September 2016, that the Commission’s inaction had not caused the damages claimed by the complainant[4].

2. In July 2015, the complainant turned to the Commission with a request for public access to documents[5]. He requested access to two documents containing draft Commission opinions on Germany’s marketing prohibition. The Commission refused to grant public access but later submitted the documents to the Court in the context of the court proceedings.

3. In November 2015, the complainant requested public access to the Commission’s “complete file” on the subject. The Commission identified 86 documents as falling within the scope of the complainant’s request, limiting itself to documents drawn up between November 2006 and August 2007[6]. It provided access to 36 documents already submitted to, or by, the complainant, but refused access to the remaining 50 documents, arguing that this was justified by the need to protect the court proceedings[7].

4. The complainant then asked the Commission to review its decision to refuse access to the 50 documents (a so-called confirmatory application). The complainant did not question the Commission’s limitation to documents produced between November 2006 and August 2007.

5. The Commission maintained its view that the 50 documents could not be disclosed. The complainant then turned to the Ombudsman in March 2016.

The inquiry

6. The Ombudsman opened an inquiry into the complaint that the Commission had wrongly denied public access to certain documents on a medical device.

7. In the course of the inquiry, the Ombudsman has so far received the reply of the Commission on the complaint and the comments of the complainant in response to the Commission’s reply. The Ombudsman’s inquiry team has also carried out an inspection of the Commission’s file and met with the Commission’s services. The Ombudsman’s solution proposal takes into account the arguments and views put forward by the parties.

Complaint that the Commission wrongly denied public access to certain documents on a medical device

Arguments presented to the Ombudsman

8. Before the General Court issued its judgment in September 2016, the Commission argued that it could not disclose the documents because of the need to protect court proceedings[8]. It stated that disclosure would expose the subject matter of the pending court case to a “parallel public discussion”, rendering the proper administration of justice by the Court more difficult. Disclosure would also infringe the principle of equality of arms. The Commission argued further that disclosure of the documents would deprive the Court of its power to adopt measures of organisation of procedure and measures of inquiry, pre-empting a possible decision to ask the Commission to produce the documents in the context of the proceedings. This would interfere with the sound administration of justice and would run counter to the purpose of preserving the “serenity of judicial proceedings”.

9. The Commission argued that, in view of the characteristics of the documents, namely that they were closely connected to the issues being examined in the case before the Court, and the reasonably foreseeable possibility of the documents becoming a part of the judicial file in that case, it could not grant public access.

10. Finally, the Commission stated that if the complainant were to make a motion to the General Court for the production of the documents and the General Court would consider the documents not relevant for it to decide on the case, he could consider submitting a new request for access to documents. The Commission would then examine such a request in light of the new circumstances.

11. The complainant argued that independent courts are free in their decision-making and uninfluenced by parallel public debates on the substance of a court case. He alleged that by refusing to grant public access, the Commission was trying to hide wrongdoings.

12. During the course of the inquiry, the complainant informed the Ombudsman’s inquiry team that he had identified a document (a letter) that the Commission had failed to list among the documents falling within the scope of his access request.

13. At the meeting between the Ombudsman’s inquiry team and the Commission, the Commission’s services explained that the documents identified as falling within the scope of the complainant’s request dated 10 years back. The Commission had had to examine the electronic archives from that period. The letter identified by the complainant had indeed been overlooked, as it was not stored in the correct electronic file, but in another file concerning the court case involving the complainant. Most likely, this document had been mistakenly moved, instead of copied, to the file related to the court case. The Commission further explained that a new search, as suggested by the Ombudsman’s inquiry team in its request for a meeting, had revealed four additional documents that fell within the scope of the complainant’s request. Out of those four documents, only one of them—an internal note of the Legal Service—was not already in the complainant’s possession.

14. The Ombudsman’s inquiry team also asked the Commission to explain whether it could agree to disclose the documents, taking into account the recently changed circumstances. Following the Commission’s reply to the Ombudsman, the General Court had ruled that the Commission’s failure to act had not caused the damage claimed by the complainant. The General Court had also dismissed the complainant’s motion to request the Commission to produce all documents in its administrative file. The Court considered the documents not relevant to its decision on the case.

15. However, the Commission’s services explained to the Ombudsman that the deadline for the appeal against the judgment of the General Court in the case involving the complainant[9] had been suspended, as the General Court had to decide on the complainant’s request for legal assistance. The judgment was thus not final and the case was still ongoing.

16. Finally, the Commission’s services explained that following a re-examination of the documents covered by the complainant’s request, it had concluded that an additional 16 documents were already in the complainant’s possession. 35 documents remain undisclosed, including the Legal Service note identified following the new search. The Commission considered this document also to be covered by the exception aiming at protecting court proceedings.

The Ombudsman’s preliminary assessment leading to the solution proposal

Failure to identify all documents covered by the complainant’s request

17. As became clear at the meeting between the Ombudsman’s inquiry team and the Commission’s services, the Commission had indeed failed to identify a number of documents that fall within the scope of the complainant’s request for public access to documents. This issue is intrinsically linked to the handling of the complainant’s public access request. Therefore, despite not being part of the original complaint, this issue warrants examination in the context of the present inquiry.

18. The Ombudsman expresses her concern about this oversight. The Ombudsman notes that if an institution fails to identify a document covered by a request for public access, citizens are either denied their legal entitlement to access a document, or prevented from challenging the refusal of access before the courts or the Ombudsman. Both scenarios are detrimental to citizens’ fundamental right of access to documents, as the existence of the documents is not acknowledged.

19. When it became clear that the Commission had failed to identify at least one document, the Commission agreed to make a new search. This led to additional documents being identified as falling within the scope of the complainant’s request for access. While the overall concern remains, the Ombudsman notes that the Commission did make efforts to remedy the situation in the present case. As it happened, the impact of the Commission’s oversight in this case was limited, as the complainant was in fact already in the possession of most of the overlooked documents.

Refusal to grant public access

20. The Ombudsman does not consider it useful to pursue the inquiry concerning those documents that are already in the complainant’s possession through different means, such as through access to the Court file. The arguments below thus relate to the remaining 35 undisclosed documents, the 34 documents covered by the Commission’s original decision to refuse access and the now identified note of the Legal Service. These 35 documents are not part of the Court file.

21. When refusing to grant access to these 35 documents, the Commission relied on the exception stating that access shall be refused to a document where disclosure would undermine the protection of court proceedings.

22. However, the Ombudsman is not convinced that the documents requested fall within the scope of this exception.

23. According to established case-law, this exception “must be interpreted as meaning that the protection of the public interest precludes the disclosure of the content of documents drawn up by [the institution] solely for the purposes of specific court proceedings", such as the "pleadings or other documents lodged, internal documents concerning the investigation of the case before the court, [and] correspondence concerning the case between the Directorate-General concerned and the Legal Service or a lawyers' office[10] (emphasis added).

24. In its final decision refusing access to the documents, the Commission referred to this case-law, concerning a request for access to the Commission's pleadings in court cases[11]. However, pleadings are clearly drawn up solely for the purpose of a court case and they are thus of a very different nature than the documents to which the complainant requested access in the present case. The documents requested by the complainant were drawn up between November 2006 and August 2007, that is, several years before the complainant brought the relevant action for damages before the Court on 15 September 2011. They concern administrative matters related to the complainant’s medical device. Therefore, the case-law referred to by the Commission cannot, on its own, be relied on to support the refusal to give access to the documents at issue in the present case.

25. The General Court recently acknowledged that the need to ensure equality of arms between an EU institution and the other party to a court case justifies the non-disclosure “not only of documents drawn up solely for the purposes of specific court proceedings, such as pleadings, but also of documents whose disclosure is liable, in the context of specific proceedings, to compromise that equality[12]. However, in order for the exception to access to apply, it is necessary that “those documents should reveal the position of the institution concerned on contentious issues raised during the court proceedings relied upon[13] This means that the documents must have a “relevant link” with the dispute pending before the courts. However, the Commission has never argued that the documents reveal its position on any “contentious issues” raised during the court proceedings.

26. Finally, the Commission argued that it was reasonably foreseeable that the documents would become a part of the judicial file.

27. As explained in paragraph 1, the General Court has in the meantime issued its judgment in the case, the proceedings of which the Commission intended to protect by refusing to disclose the documents. In particular, the General Court also dismissed the complainant’s motion to request the Commission to produce all documents in its administrative file, as it considered the documents not relevant in order for it to decide on the case[14]. This was already the third judgment on this case, yet none of the three courts has deemed the requested documents relevant for its proceedings. Even if this judgment were to be appealed, it is not reasonably foreseeable at all that the documents would ever be considered relevant for the proceedings.

28. Thus, the Ombudsman considers that the 35 non-disclosed documents were neither drawn up "solely for the purposes of court proceedings", nor was there a “relevant link” to a pending judicial dispute. Even if there had been such a link, there is none now.

29. In fact, as has been stated by the Court, “the exception based on the protection of [court proceedings] cannot enable the Commission to escape from its obligation to disclose documents which were drawn up in connection with a purely administrative matter. That principle must be respected even if the disclosure of such documents in proceedings before the Community judicature might be prejudicial to the Commission[15] (emphasis added).

30. On the basis of the above, the Ombudsman concludes that the documents requested by the complainant do not fall within the scope of the exception to public access aiming at protecting court proceedings.

31. While this was the case already at the time when the Commission took the decision on the complainant’s confirmatory application, this conclusion applies even more now that the General Court has explicitly rejected the production of the documents for the court case.

32. The Ombudsman notes that it is a key principle in relation to the citizens’ right of access to documents that the exceptions to public access are 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[16].

33. Not only did the Commission rely—incorrectly, in the eyes of the Ombudsman—on the exception to access aiming at protecting court proceedings, but it refused access to the entirety of the documents, without explaining why it considered all the content to be covered by that exception.

34. Some of the documents to which access was refused solely or partly contain mere summaries of facts, in some cases in relation to meetings with the complainant. Overall, much of the information contained in the documents must be considered as entirely irrelevant to the court proceedings.

35. In light of the above, the Ombudsman considers that the exception to public access for the purpose of protecting court proceedings cannot be applied to the documents concerned and that the complaint can be resolved by the Commission giving access to these documents. She therefore makes a corresponding proposal for a solution below, in accordance with Article 3(5) of the Statute of the European Ombudsman.

36. The Ombudsman would like to emphasise that, in order for her inquiries to serve a useful and citizen-friendly purpose, developments following the original decision refusing public access to documents should also be taken into account when trying to find a solution to a complaint. 

The proposal for a solution

In order to resolve the issue in a citizen-friendly manner, the Ombudsman proposes that the Commission disclose the remaining 35 documents. Should the Commission consider that some redactions are nevertheless needed to protect personal data[17], it should redact this information and grant access to the remainder of the documents.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 11/04/2017

 

[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] Judgment of the Court of Justice of 22 April 2015, Klein v Commission, C-120/14 P, EU:C:2015:252.

[3] Judgment of the General Court of 21 January 2014, Klein v Commission, T-309/10, EU:T:2014:19.

[4] Judgment of the General Court of 28 September 2016, Klein v Commission, T-309/10 RENV, EU:T:2016:570.

[5] 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.

[6] The previously requested draft opinions were drafted in June 2007 and the final opinion was published in July 2007.

[7] Article 4(2), second indent, of Regulation 1049/2001.

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

[9] Judgment in Klein v Commission, cited above, EU:T:2016:570.

[10] Judgment of the Court of First Instance of 12 September 2007, API v Commission, T-36/04, EU:T:2007:258, paragraph 60-61; Judgment of the Court of First Instance of 6 July 2006, Franchet and Byk v Commission, Joint Cases T-391/03 and T-70/04, EU:T:2006:190, paragraph 88-90; Judgment of the Court of First Instance of 7 December 1999, Interporc v Commission, T-92/98, EU:T:1999:308, paragraph 40-41.

[11] Judgment of the Court of 21 September 2010, Sweden and Others v API and Commission, C-514/07 P, EU:C:2010:541, paragraph 75.

[12] Judgment of the General Court of 15 September 2016, Philip Morris v Commission, T-796/14, EU:T:2016:483, paragraph 88.

[13] Judgment in Philip Morris v Commission, cited above, EU:T:2016:483, paragraph 88.

[14] Judgment in Klein v Commission, T-309/10 RENV, cited above, EU:T:2016:570, paragraph 58.

[15] Judgment in Interporc v Commission, cited above, EU:T:1999:308, paragraph 42; Judgment in Franchet and Byk v Commission, cited above, EU:T:2006:190, paragraph 91.

[16] Judgment of the Court of 16 July 2015, ClientEarth v Commission, C-612/13 P, EU:C:2015:486, paragraph 57; Judgment of the Court of 21 July 2011, Sweden v MyTravel and Commission, C-506/08 P, EU:C:2011:496, paragraph 75; Judgment of the Court of 18 December 2007, Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66; Judgment of the Court of 1 July 2008, Sweden and Turco v Council, Joined Cases C-39/05 P and C-52/05 P, EU:C:2008:374, paragraph 36; and Judgment in Franchet and Byk v Commission, cited above, EU:T:2006:190, paragraph 84.

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