Background to the complaint

1. In 2015, the complainant submitted an infringement complaint on Italy’s compliance with EU rules on safety and health in the workplace[1]. The Commission opened an EU Pilot procedure[2]  in order to request further information from the Italian authorities.[3] In May 2018, the complainant requested public access to the documents[4] related to the procedure. In particular, he requested access to all correspondence between the Commission and Italy. The Commission refused to grant access to the requested documents, as the procedure was ongoing and as disclosing the documents could impact upon possible future infringement proceedings[5].

2. On 14 August 2018, the Commission informed the complainant it had closed the EU Pilot procedure and its investigation of his infringement complaint. On the same date, the complainant filed a new request for access to the same documents. On 7 September 2018, the Commission refused to grant access to the documents in question. In doing so, it referred to an exception set out in the EU’s rules on public access to documents (Regulation 1049/2001) by which access to documents can be refused for protecting “the purpose of inspections, investigations and audits”[6] .

3. On 8 September 2018, the complainant asked the Commission to review its decision (by making a so‐called ‘confirmatory application’). The Commission replied on 22 November 2018, confirming its previous decision. The Commission argued that, although the procedure was closed, it is currently analysing two infringement complaints and three petitions[7] concerning issues covered by the procedure. In this context, it might be necessary to reopen the dialogue with Italy. Consequently, the Commission considered that there was a real risk that disclosing the documents would adversely affect its investigation. It further argued that the documents fall under a ‘general presumption of non-disclosure’[8] and, as such, it would not disclose even parts of the documents, with some content withheld. It also argued that the complainant did not demonstrate that there is any overriding public interest that would be served by disclosing the documents.

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

The inquiry

5. In the context of the Ombudsman’s inquiry, her inquiry team met with Commission representatives and inspected the requested documents, as well as the new complaints and petitions received by the Commission. The Ombudsman received comments from the complainant on the report of the inspection.

Arguments presented to the Ombudsman

6. The Commission noted that it bases decisions to close an EU Pilot procedure on the information available to it at a certain point in time. The decision to close an EU Pilot does not prevent the Commission from reopening dialogue with the Member State concerned later on, if it becomes aware of new relevant information.

7. The Commission explained that the EU Pilot procedure raised questions as to how Italy implements some of the provisions of the directive[9]. The Commission is currently analysing new complaints and petitions that concern some of the matters dealt with in the EU Pilot procedure, in particular the documentation of occupational accidents suffered by workers. Based on its analysis of these complaints and petitions, the Commission may decide to reopen the EU Pilot procedure. It told the Ombudsman that, based on its preliminary assessment, it is indeed likely to do so. The Commission noted that it will assess future requests for access to documents of the EU Pilot procedure in question in light of the new circumstances at the time of the request (e.g. in case the investigations are closed, it may disclose the requested documents).

8. The Commission noted that, as demonstrated by EU case law, EU Pilot procedures constitute ‘investigations’. As such, in accordance with Regulation 1049/2001 on the confidentiality of investigations[10], any dialogue with Member State authorities that might lead to an infringement procedure is considered to be confidential[11]. EU case law has also recognised that, during an EU Pilot, the Commission may rely on a general presumption of non-disclosure of the documents concerning the procedure where disclosing the documents is likely to jeopardise the outcome of the procedure. This is, in part, because the matters investigated in infringement proceedings could be the subject of future court proceedings[12]. Notwithstanding this general presumption, the Commission had assessed each of the documents individually.

9. The Commission argued that disclosing the documents requested by the complainant could undermine the “atmosphere of mutual trust” should it reopen dialogue with Italy. It stated that an atmosphere of mutual trust is essential in such dialogue, as the Member State might consider modifying its national legislation.

10. The Commission confirmed that the new complaints and petitions deal with only some of the issues covered by the EU Pilot procedure. It argued, however, that all the aspects investigated in the context the EU Pilot procedure are interrelated, because they comprise a comprehensive system for health and safety in the workplace. Moreover, all national provisions giving effect to the directive in question are part of the same national law[13].

11. The complainant contended that the Commission cannot rely on the exception under Regulation 1049/2001 concerning the confidentiality of investigations because it had closed both his complaint and the EU Pilot procedure. He argued that the Commission should have granted access to the documents when he first requested them. The complainant stated that he was requesting access to the documents concerning his own complaint to verify how the Commission conducted its investigation.

12. The complainant argued that it is unlikely that the Commission will open infringement proceedings against Italy.

13. He was also concerned that the Commission exceeded the deadline for replying to his confirmatory application by one month and the deadline for replying to the Ombudsman by two months.

The Ombudsman's assessment

14. The Ombudsman welcomes the fact that the Commission carried out an individual assessment of each document despite saying that a general presumption of non-disclosure applies. This approach is consistent with her view that EU institutions should apply such general presumptions only in limited cases so as not to encroach excessively upon the right of public access to documents.

15. During the inspection meeting, the Commission representatives stated that it is reasonably likely that the Commission will reopen the Pilot procedure. In these circumstances, disclosing the requested documents could jeopardise the Commission’s negotiations with the Italian authorities, and thus the outcome of the investigation. The Ombudsman agrees that the subject matter of the ongoing complaints and petitions being analysed by the Commission is closely linked to that in the complainant’s case. Therefore, she finds the Commission’s reasons for not disclosing the documents to be reasonable.

16. Furthermore, there is no overriding public interest in disclosing the requested documents. This is because there is clearly a significant public interest in detecting and correcting possible non-compliance with EU law and, in order to do so, it is necessary for the Commission to be able to conduct dialogue with national authorities in confidentiality. The complainant has not identified an overriding public interest in this case and neither has the Ombudsman.

17. The Ombudsman notes the complainant’s legitimate concerns about the delays in this case. While it is regrettable that the Commission missed the applicable deadlines for sending its responses to the complainant and the Ombudsman, these delays do not call into question the validity of the Commission’s arguments.

18. That being said, since the Commission is still looking into some of the matters raised in the complainant’s original infringement complaint, and the Ombudsman encourages the Commission to keep the complainant (and those responsible for the new infringement complaints) informed about any developments in its investigation. It should also review its position on granting public access to the requested documents once it has finished its consideration of all the related issues and any follow-up action has been completed.

Conclusion

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

There was no maladministration by the Commission in refusing access to the documents concerning EU Pilot procedure 8847/16/EMPL.

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

 

Emily O'Reilly

European Ombudsman

Strasbourg, 23/07/2019

 

 

 

[1] Directive 89/931/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A31989L0391. The complaint concerned, in particular, article 8(2), article 9(1), Article 10(3) and Article 11(2) of the directive.

[2] EU Pilot procedures are informal dialogues between the Commission and the relevant Member State about issues related to potential non-compliance with EU law. EU Pilots aim to resolve compliance problems without the Commission having to open formal infringement proceedings. More information: http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/eu_pilot/index_en.htm.

[3] EU Pilot procedure 8847/16/EMPL.

[4] In accordance with Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32001R1049.

[5] At the time, the complainant turned to the European Ombudsman, who found the Commission had been correct to withhold access. See decision on case 1352/2018/LM: https://www.ombudsman.europa.eu/en/decision/en/103881. 

[6] Article 4(2), third indent, of Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32001R1049.   

[7] Complaints CHAP(2018)512, CHAP(2018)526, submitted in February 2018, and petitions 2018/0128, 2018/0129 and 2018/0130, submitted in July 2018.

[8] EU case law has established that a general presumption of non-disclosure applies to different categories of EU public documents. Where such a presumption applies, EU institutions are justified in refusing access to all relevant documents.

[9] Notably, how Italy implements the provisions of Directive 89/391/EEC on the designation of workers required to be responsible for first aid, firefighting and evacuation (Article 8[2]) and on an employer’s obligation to keep a list of work-related accidents (Article 9[1,c]).

[10] Article 4(2), third indent.

[11] Judgment of 11 December 2001, Petrie and Others v European Commission, T-191/99, (http://curia.europa.eu/juris/document/document.jsf?text=&docid=46940&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2375522), paragraph 68.

[12] Judgment of 25 September 2014, Darius Nicolai and Mihaela Spirlea v European Commission, T-306/12 (http://curia.europa.eu/juris/liste.jsf?num=T-306/12&language=EN), paragraph 57, confirmed by the Judgment of 11 May 2017, Kingdom of Sweden v European Commission, C-562/14 P: http://curia.europa.eu/juris/liste.jsf?num=C-562/14.

[13] Decree No. 151 of 14 September 2015.