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

Background to the complaint

1. In recent years, the European Union, via the European Commission, has funded projects to help the Greek authorities to manage the migration crisis.

2. In this context, in October 2018, the complainant, an academic carrying out research into the migration crisis, asked the Commission to give him public access^[2] to “any communication” concerning the Greek asylum system that was exchanged between it and a management consultancy between October 2016 and January 2017. The consultancy was the contractor in one of the EU-funded projects related to the migration crisis in Greece.

3. The Commission identified seven documents, namely five ‘update reports’ and one ‘summary report’ concerning phase 1 of the project at issue, and a ‘proposal’ for the implementation of phase 2 of the project. The Commission granted the complainant partial access to the update reports and the summary report, but refused to grant any access to the phase 2 proposal. It justified its decision by relying on the need to protect public security, international relations, personal data, and the commercial interests of the management consultancy concerned.^[3]

4. In January 2019, the complainant asked the Commission to review its decision by making a so-called ‘confirmatory application’.

5. Following that review, in June 2019 the Commission granted the complainant partial access to the proposal and wider partial access to the summary report.

6. The complainant considered that, apart from the redaction of personal data, the redactions were excessive. He therefore turned to the Ombudsman in July 2019.

The inquiry

7. The Ombudsman opened an inquiry into the complaint that the Commission had wrongly refused public access to the redacted parts of the requested documents (with the exception of the personal data).

8. In the course of the inquiry, the Ombudsman’s inquiry team obtained copies of the requested documents as well as the comments sent to the Commission by the Greek authorities and the management consultancy about the disclosure of the documents. The Ombudsman’s inquiry team also met with representatives of the Commission with a view to obtaining a clear understanding of the documents at issue.

Arguments presented to the Ombudsman

9. The complainant considered that the redactions made by the Commission were excessive.

10. Specifically, regarding public security, the complainant argued that the Commission failed to explain how disclosure of the redacted information could still pose a risk to security, given that the situation in Greece has changed considerably since 2016.

11. The complainant also questioned whether disclosure would jeopardise the EU’s and/or Greece’s international relations.

12. Regarding the commercial interests of the management consultancy concerned, the complainant took the view that a company benefitting from EU funding should expect a certain degree of transparency, especially with respect to the deliverables that it promised to achieve.

13. The complainant also argued that there is an overriding public interest in the “EU’s response to the situation in Greece (...) and in understanding the specific steps taken by the Commission and Greek authorities, as well as the role played by private entities (...), in responding to the increase in the arrivals of asylum-seekers in Greece as part of the EU’s migration policy.”

14. The Commission stated that the requested documents contain details on the interactions between those involved in managing the migration crisis, including third countries. These interactions concerned, for example, judicial and police related matters, including highly sensitive information on border cooperation, ‘reception conditions’ in Greece and Turkey, and the relocation and resettlement of migrants. In addition, the documents contain information on challenges faced when receiving migrants and asylum seekers. Knowledge of these challenges could be exploited, for example, by smuggling networks. Finally, the documents reflect, in detail, the progress that was made in the project in question. Disclosure of this information, the Commission concluded, would undermine public security, as well as international relations with third countries, including the countries of origin of migrants, and other international partners, thereby jeopardising the implementation of the EU-Turkey Statement.

15. Regarding the commercial interests at stake, the Commission said that the documents contain commercially sensitive information, for example on the contractor’s team composition and financial situation. They also illustrate the contractor’s unique approach to problem solving. Disclosure of this information, it said, could be exploited by the contractor’s competitors. This would put the contractor at a disadvantage and harm its ability to conducts its business.

16. The Commission did not identify an overriding public interest. It argued that it is not sufficient to rely generally on the principle of transparency in order to establish that there is an overriding public interest in disclosure.

The Ombudsman's assessment

17. Having examined the requested documents and the comments provided by the third parties concerned, the Ombudsman reviewed the application of the exceptions to all seven documents.

18. Concerning the protection of the public interest as regards public security and international relations, the Court has recognised that the EU institutions enjoy wide discretion when determining whether these interests could be undermined by the disclosure of certain information.^[4]

19. In this case, the Ombudsman agrees that the explanations provided to the complainant by the Commission regarding the likelihood that disclosure would undermine public security and international relations were as detailed as they could be. Requiring the Commission to provide more detailed reasons as regards why disclosure would undermine public security and international relations would have involved revealing sensitive information in the documents. This would have rendered the very purpose of the exemptions for the protection of public security and/or international relations void.

20. On the basis of the inspection and the explanations provided by the Commission, the Ombudsman concludes that the disclosure of certain information in the documents would undermine public security and international relations.

21. As regards the complainant’s argument that the situation in Greece is no longer critical, and therefore that the information has ceased to be sensitive, the Ombudsman notes that there is still a significant influx of migrants^[5] and the situation on the Greek islands is still precarious^[6]. In this context, the Ombudsman concludes that disclosure of certain information in the documents would still undermine public security and international relations.

22. The Ombudsman also notes that the need to protect public security and international relations cannot be set aside by any overriding public interest.

23. The Ombudsman therefore concludes that the Commission was justified in denying public access to the parts of the documents to which it applied those two exceptions.

24. The Ombudsman does note that some minor redactions may have been excessive. She bases this conclusion on the fact that some of the information that was redacted to protect public security and/or international relations is also contained in slides that were disclosed. For example, some of the information in the redacted slide 13 of the update report of 19 October 2016 was disclosed in slide 11 of the same document. Overall, however, this concerns very little information and its disclosure would not effectively increase the level of transparency (since the information in question has already been disclosed elsewhere in the same document). Therefore no action by the Commission is needed on this point.

25. Regarding information that was redacted for the sole purpose of protecting the commercial interests of the contractor, from whom the documents originate, the Ombudsman agrees that some of this information is indeed sensitive, namely the price breakdowns and team composition.

26. In contrast, the Ombudsman does not consider that information related to the substance of the funded project, especially the work packages and deliverables of the project, is covered by this exemption. Rather, the Ombudsman takes the view that, unless there is a justification based on the need to protect public security and/or international relations, this information should be fully disclosed. The Ombudsman bases her conclusion on the principle that the public has a right to be informed about the content of projects that are financed by public money. Disclosure of such information does not undermine the commercial interests. The Ombudsman therefore makes a proposal for a solution below.

27. In this context, the Ombudsman notes that phase 2 of the project was carried out in line with the proposal set out in the seventh document referred to in paragraph 3 above. The above assessment should therefore be applied equally in disclosing that document.

The proposal for a solution

Based on the above findings, the Ombudsman proposes that the Commission should grant further partial access to the requested documents in line with the approach described above, in particular in paragraphs 26 and 27.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 28/11/2019

 

[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.

[2] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[3] In accordance with Article 4(1)(a), first and third indent, 4(1)b and 4(2), first indent of Regulation 1049/2001.

[4] See, for example, judgment of the General Court of 11 July 2018, ClientEarth v Commission, T-644/16, paragraphs 23 -25: http://curia.europa.eu/juris/document/document.jsf?text=&docid=203913&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=46943.

[5] See https://data2.unhcr.org/en/situations/mediterranean/location/5179.

[6] See, for example, https://www.coe.int/en/web/commissioner/-/greece-must-urgently-transfer-asylum-seekers-from-the-aegean-islands-and-improve-living-conditions-in-reception-facilities.