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Proposal for a solution in case 1933/2014/JF on the refusal to give full public access to a report on a meeting between the European Commissioner for Trade and an oil and gas multinational

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  • Case: 1933/2014/JF
    Opened on 17 Dec 2014 - Decision on 27 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 non-governmental organisation Friends of the Earth Europe. In November 2013, the complainant asked the European Commission for public access to documents concerning contacts between its Directorate-General Trade ('DG Trade'), including the then Commissioner and members of his cabinet, and external stakeholders about "the link between the Transatlantic Trade and Investment Partnership (TTIP) and unconventional fuels (in particular shale gas and high-volume hydraulic fracturing or 'fracking'), since 1st January 2013"[2].

2. The Commission gave the complainant partial access to a number of documents but refused to give any access to "an email report on a meeting between [the] Trade Commissioner... and ExxonMobil on 17 October 2013" (‘the e-mail report'), arguing that certain exceptions to access, provided for in the EU rules on public access to documents, applied.  In the Commission’s view, disclosing the e-mail report would reveal and potentially undermine ExxonMobil’s commercial strategy and interests[3]. According to the Commission, the e-mail report also contained information on the Commission’s internal decision-making process regarding the ‘Fuel Quality Directive’, the disclosure of which would compromise that process[4]. The Commission did not consider there to be any overriding public interest in the disclosure.

3. The complainant asked the Commission to review its decision not to give access to the e-mail report (by making a so-called “confirmatory application” under the applicable EU rules). The complainant argued that issues relating to the Fuel Quality Directive fall within the concept of “environmental information” set out in the Aarhus Convention[5] and that specific rules, namely the Aarhus Regulation, provide for a greater public access to that information[6]. According to these rules, "[t]he grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions in the environment..."[7] The complainant therefore argued that there was an overriding public interest in disclosing information on the decision-making process concerning the regulation and use of unconventional fuels (like shale gas), such as in the context of EU-US trade negotiations on the Transatlantic Trade and Investment Partnership (‘TTIP’)[8]. The complainant took the view that the Commission had not explained how the disclosure of the e-mail report would harm ExxonMobil's commercial interests[9]. Nor had the Commission explained how disclosing the e-mail report would undermine the Commission’s decision-making process. In fact, the Commission’s reply implied that it had shared information with ExxonMobil that it refused to disclose to the general public. This, the complainant argued, was contrary to the European Code of Good Administrative Behaviour[10].

4. In its reply, the Commission rejected the complainant's argument that it had given ExxonMobil information that was not available to the public. The Commission maintained its refusal to give access to the e-mail report, arguing that its position was fully in line with the relevant EU rules on access to environmental information[11]. It again referred to the need to protect ExxonMobil’s commercial interests and the Commission’s decision-making process, as well as the need to protect the public interest as regards international relations, which is another ground for refusing access under the rules[12]. According to the Commission, not even partial access could be given. The Commission’s detailed arguments for not disclosing the e-mail report are set out below under the Ombudsman’s initial analysis.

5. Dissatisfied with the Commission’s reply, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into the complainant’s concern that the Commission had failed to properly justify its decision to refuse public access to the e-mail report.

The complainant wanted the Commission to review its decision, particularly in the context of the Aarhus Regulation, and to:

(i) disclose the e-mail report in its entirety; or

(ii) provide properly justified partial access; or

(iii) properly justify its refusal.

7. In the course of the inquiry, the Ombudsman inspected the e-mail report. She also received two replies from the Commission on the complaint, with two partially disclosed versions of the e-mail report. The complainant made comments to the Ombudsman on the Commission’s replies and on the two partially disclosed versions of the e-mail report which were released during the course of her inquiry. The Ombudsman’s solution proposal takes into account the information obtained during the inspection, as well as the arguments put forward by the parties in their respective replies and comments.

The Ombudsman’s initial assessment

8. The Ombudsman’s inspection of the e-mail report made clear that it contains information that is indeed related to (i) international relations, namely those between the EU and the US; (ii) commercial interests of a legal entity, namely those of ExxonMobil; and (iii) the Commission's decision-making processes, in the context of the Fuel Quality Directive and the negotiations on TTIP.

9. The question was whether public disclosure of the withheld parts of the e-mail report would specifically and actually undermine the protection of the public interest as regards international relations, the company’s commercial interests, and the Commission’s decision-making processes.

On the protection of the public interest as regards international relations

10. On the basis of the inspection, the Ombudsman concluded that the Commission was right in that the e-mail report contains possible strategies for the (then) on-going negotiations with the US on TTIP. The Ombudsman also found the Commission to be correct in concluding that a public disclosure of the full e-mail report could have negatively affected the EU's position in those negotiations and undermined its relations with the US, thus weakening the EU's position in the context of TTIP.

11. However, the Ombudsman found that only a few passages in the e-mail report appeared to be covered by this exception to the rules on public access.

On the protection of commercial interests

12. On the basis of the inspection, the Ombudsman concluded that the Commission was right in that the e-mail report contains information relating to ExxonMobil's business strategy, including potential investments, costs, price fluctuations and profit margins. The Ombudsman also found the Commission was correct in concluding that full disclosure could undermine ExxonMobil's commercial interests.

13. However, the Ombudsman was not convinced that all the statements by ExxonMobil to which the e-mail report referred fell within this category. In addition, the Commission did not seem to have consulted ExxonMobil to confirm whether the information contained in the e-mail report was indeed commercially sensitive.

On the protection of the Commission's decision-making process

14. The fact that the e-mail report referred to statements that the then Commissioner for Trade had made to ExxonMobil, that is, statements made to a third party outside the Commission, made it difficult for the Ombudsman to understand why public access to the relevant passages in the e-mail report could be refused on the basis of the exception relating to the Commission's own decision-making process.

On the overriding public interest in disclosure resulting from the relevant rules on access to environmental information

15. In light of the above, the Ombudsman reached the conclusion that the Commission's decision to refuse even partial public access to the e-mail report was not convincing. The Ombudsman thus did not find it necessary to deal with the complainant’s argument that access should be given based on the EU rules on access to environmental information, as the information in question appeared to be releasable in any event.

Further inquiries

16. On the basis of the above, the Ombudsman asked the Commission to provide a reply addressing the concern that the Commission had failed to properly justify its decision to refuse partial access to the e-mail report and the complainants’ wish that the Commission should, at least partially, disclose the e-mail report.

17. The Ombudsman pointed out to the Commission that it seemed to be possible to give partial access to the e-mail report. The Ombudsman directed the Commission to those passages in the e-mail report that she considered not to be covered by any exception to public access[13].

18. The Commission replied that it did not consider the Ombudsman to have put forward any reasons for her view that some passages of the e-mail report could be disclosed. It therefore maintained its arguments on the basis of which it had refused to give access to the e-mail report. The Commission had nevertheless reviewed its decision to make sure that it had not made a manifest error of assessment.

19. The Commission argued that EU case-law and previous decisions by the Ombudsman acknowledge that the Commission has a wide margin of discretion in deciding to refuse to give access to documents in order to protect the public interest concerning international relations. Considering the inherently delicate nature of international relations, the Commission maintained that it has a right to exercise caution when assessing possible risks related to the release of documents[14]. In the Commission’s view, the Ombudsman had not shown that it had made a manifest error of assessment that would justify partial disclosure of the e-mail report. The Commission therefore maintained that it was correct to refuse to give access at the time.

20. The Commission then noted that it has now dealt with a new request for public access to the e-mail report from another applicant. After having examined whether its earlier refusal to give access remained justified[15], the Commission had decided to disclose parts of the e-mail report. It explained that some of the issues raised during the meeting reported in the e-mail had, in the meantime, become public as a result of the Commission’s commitment, in the context of the Ombudsman’s own-initiative inquiry OI/10/2014/RA, to consider publishing documents drawn up in the course of the TTIP negotiations. The TTIP negotiations had, it stated, progressed and substantial elements of the EU position on energy and raw materials had been made public. In addition, the economic situation of the energy market in the US had evolved and the oil and gas industry has clarified its position on the TTIP negotiations. Finally, some of the specific business-related information that ExxonMobil disclosed to the Commission appeared to be no longer commercially sensitive, due to the passage of time. The Commission therefore gave access to parts of the e-mail report (the ‘first public version of the e-mail report’).

21. The Ombudsman forwarded the Commission’s reply, including the first public version of the e-mail report, to the complainant for comment. In reply, the complainant noted that considerable parts of the e-mail report remained undisclosed[16].

22. The Commission subsequently informed the Ombudsman that it had dealt with yet another request for public access to the e-mail report from another applicant and that the version which had been disclosed to that applicant “comes quite close to the request from the European Ombudsman” (the ‘second public version of the e-mail report’). The Commission sent a copy of the second public version of the e-mail report to the Ombudsman.

23. The Ombudsman forwarded the second public version of the e-mail report to the complainant, for comment. The complainant noted that, at the same time as the Commission disclosed additional information in the second public version of the e-mail report, it had redacted one sentence that it had already disclosed in the first public version[17].

The Ombudsman's assessment leading to the solution proposal

24. The Ombudsman certainly welcomes the fact that the Commission has now partially disclosed the e-mail report. However, the Ombudsman still has a number of concerns.

25. Following the inspection of the e-mail report, the Ombudsman indicated to the Commission that she considers only a few passages in the text to be covered by one or more of the following exceptions: the need to protect the public interest as regards international relations; the need to protect the commercial interests of a legal person; the need to protect the Commission’s decision-making process. The Commission, however, is still refusing to disclose some text passages that the Ombudsman considers should be disclosed.

26. First, the Commission has not explained why disclosing all of paragraph 1 of the e-mail report would undermine the EU’s negotiations with the US on TTIP or damage ExxonMobil’s commercial interests. That paragraph does not concern the TTIP negotiations or ExxonMobil. Moreover, the information in question has already appeared in the press and is arguably already in the public domain.

27. Second, while the Ombudsman welcomes the Commission’s decision to disclose a significant part of paragraph 3 of the e-mail report[18], she is of the view that the remaining part of paragraph 3, which remains redacted on grounds of protection of the public interest as regards international relations and protection of the Commission’s decision-making process, should also now be disclosed. No convincing argument has been put forward as to why disclosure of these remaining passages would specifically and actually undermine any interest protected by the law on public access to documents. Giving access to the remaining part of paragraph 3 would be in line with the Commission’s commitment to give wider access to TTIP documents.

28. Finally, in paragraph 2 of the second public version of the e-mail report, the Commission has redacted a text passage that it had already disclosed to the complainant in the first public version. This is, no doubt, a clerical error.

29. As regards the remainder of paragraph 2, the Ombudsman acknowledges that there are good reasons for applying the exceptions.

30. The Ombudsman acknowledges the Commission’s efforts to give partial access to the e-mail report in question. However, on the basis of the above, the Ombudsman is of the view that the Commission has not fully justified the continued non-disclosure of certain parts of the e-mail report. She therefore makes the following proposal for a solution, in accordance with Article 3(5) of the Ombudsman’s Statute:

The proposal for a solution

The Ombudsman proposes that the Commission gives access to the full e-mail report, except for the text passages that the Ombudsman acknowledges to be covered by an exception to public access and which have not yet been disclosed to the complainant.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 03/05/2017

 

 

[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] Under the EU rules on public access to EU institutions' documents (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 - the ‘Regulation 1049/2001).

[3] Article 4(2) of Regulation 1049/2001 provides that “[t]he institutions shall refuse access to a document where disclosure would undermine the protection of: - commercial interests of a natural or legal person, including intellectual property... unless there is an overriding public interest in disclosure."

[4] Article 4(3) of Regulation 1049/2001 provides that “[a]ccess to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not yet been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure." Information about the Fuel Quality Directive is available here: http://ec.europa.eu/environment/air/transport/fuel.htm

[5] 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 (the ‘Aarhus Convention’), to which the European Community is a party. Article 2(3) of the Aarhus Convention provides that ""Environmental information" means any information in written, visual, aural, electronic or any material form on: (a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making; (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above..."

[6]  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 2006 L 264, p. 13 (the ‘Aarhus Regulation’).

[7] Recital 15 of the Aarhus Regulation.

[8] Information on the state of play of TTIP is available here: http://ec.europa.eu/trade/policy/in-focus/ttip/

[9] The complainant referred to the Ombudsman's decision in case 676/2008/RT, paragraphs 27 to 33.

[10] Articles 5 and 11 of the European Code of Good Administrative Behaviour: "1. In dealing with requests from the public and in taking decisions, the official shall ensure that the principle of equality is respected. Members of the public who are in the same situation shall be treated in a similar manner. 2. If any difference in treatment is made, the official shall ensure that it is justified by the objective relevant features of the particular case. (...) The official shall act impartially, fairly and reasonably."

[11] Article 6(1) of the Aarhus Regulation: "As regards Article 4(2), first and third intends, of Regulation 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Community law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment."

[12] Article 4(1)(a) of Regulation 1049/2001 provides that “[t]he institutions shall refuse access to a document where disclosure would undermine the protection of [...] the public interest as regards [...] international relations."

[13] “[T]he list of participants; the full first paragraph; the second paragraph: sentences 1-6, 9, 12-17; and the third paragraph: sentences 1, 3-11. In other words, it would appear possible, at first sight, to disclose the entire document, with the exception of sentences 7, 8, 10, 11 of the second paragraph; and 2 of the third paragraph.

[14] The Commission referred to (i) the Ombudsman’s decision in case 1010/2008/DK, paragraph 47; (ii) the Ombudsman’s decision in case 167/2013/RT, paragraph 23; and (iii) the Ombudsman’s draft recommendation in case 1398/2013/ANA, paragraph 66.

[15] See Case C-362/08, Internationaler Hilfsfonds v Commission, EU:C:2010:40, paragraph 57.

[16] The Ombudsman notes that the complainant has made a number of additional observations on issues that do not fall within the scope of her inquiry, in particular one concerning disclosure to a third party of a document that would have fallen within the scope of its initial request and which had not been yet disclosed to the complainant. If the complainant wishes to pursue these issues further, it should first address them directly to the Commission, before considering making a new complaint to the Ombudsman.

[17] The complainant also made additional observations on issues that do not fall within the scope of the present inquiry. See, in this respect, footnote 16 above.

[18] The Commission had first considered the whole paragraph 3 as “out of the scope of the request” and kept it redacted in the first public version of the e-mail report. The second public version of the e-mail report discloses a great part of paragraph 3, including even a text passage that the Ombudsman had agreed was covered by an exception to public access.