Date: Wednesday, 17 July 2024

Location: EEAS Headquarters, Brussels

Present

European External Action Service

Deputy Head of Division, SG.2 - Parliamentary Affairs

Deputy Head of Division, PCM.4 - European Peace Facility

Two Policy Officers, PCM.4 - European Peace Facility

Two Legal Advisors, Access to documents, SG.LD - Legal Department

Policy Officer, SG.2 - Parliamentary Affairs

Trainee, SG.LD - Legal Department

European Ombudsman

Mr Nicholas Hernanz, Inquiries Officer

Ms Michaela Gehring, Inquiries Officer

Ms Paulien Van de Velde-Van Rumst, Inquiries Officer

Ms Zoé Lejeune, Inquiries Trainee

Background and purpose of the meeting

The case concerns two joint requests for public access to two documents related to an audit of the annual accounts of the European Peace Facility (document 1) and the methodology for reimbursement of equipment donated by Member States to Ukraine (document 2), respectively. The European External Action Service (EEAS) refused to give full access to the documents (while it gave partial access to document 2) based on the need to protect the public interest as regards defence and military matters and the EU’s international relations with Ukraine, as well as to protect its ongoing decision-making process.[1] The complainant challenged this.

The EEAS requested that the inspection of the documents would take place in the form of a meeting due to the sensitivity of the documents and to be able to provide further information on the reasons as to why it had refused full public access to the documents at issue and to enable the Ombudsman inquiry team to understand the broader context of the case.

Documents inspected

The inquiry team first received and inspected full copies of the two documents at issue in this case:

1. Conceptual framework for financing support to the Ukrainian Armed Forces (UAF) (WK 3022/2022 REV 9) (document 1);

2. Audit Report of the annual accounts of the European Peace Facility - Assistance Measures - Financial Year 2022, of September 2023 (document 2).

The EEAS representatives asked that the documents be treated confidentially.

Following the inspection, the Ombudsman inquiry team and the EEAS representatives continued with a meeting.

Introduction and procedural information

The attendees introduced themselves and the Ombudsman inquiry team thanked the EEAS representatives for meeting with them. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the EEAS as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the EEAS’s prior consent.^[2]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the EEAS to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

1) The European Peace Facility and the sensitivity of the requested documents

The EEAS representatives provided background information on the European Peace Facility (EPF), emphasising the sensitive nature of the documents requested by the complainant. They explained that the EPF is an off-budget instrument that enhances the EU’s ability to act as a global security provider. It was established in March 2021 to fill a critical gap in the EU's toolbox for preserving peace, preventing conflict and strengthening international security. The EPF enables Member States to provide support and assistance to currently over twenty partners around the world, including - for the first time - lethal equipment. The EPF is also the basis for incentivising EU Member States’ military support to Ukraine since its invasion by Russia.

The EEAS's decision to refuse access to document 1 and grant partial access to document 2 must be understood in light of the particularly sensitive context of the ongoing war in Ukraine. The EEAS representatives referred to concrete examples on the sensitivity of this topic in the current international context.

The EEAS representatives further noted that Member States themselves are concerned about disclosure of any details of their level of support to Ukraine. They considered that even limited information would allow adverse actors to draw conclusions about Ukraine’s needs and the military capabilities of the Member States, and thus as regards possible weaknesses. They also argued that the information in the documents could be used to spread disinformation, potentially able to undermine the relevant EU’s decision-making process or to attempt influencing public opinion on the support for Ukraine.

The EEAS representatives clarified that it had not consulted Ukraine on the complainant’s requests for public access to documents, as the documents originate from the EU.

2) The documents concerned by the complaint

Document 1: The conceptual framework for financing support to the UAF

The EEAS representatives stated that the document contains the EEAS’s proposal for the conceptual framework for financing support to the UAF. The conceptual framework defines the type and quantity of support that can be financed, considering the priorities recommended by the European Union Military Staff to meet the needs of the Ukrainian Armed Forces.[3] Under the EPF, the EEAS makes policy proposals to be discussed with the Member States. The EEAS representatives noted that the conceptual framework will continue to be modified in light of the evolution of the EU’s support to Ukraine.

The EEAS representatives set out the reasons for refusing to grant public access to the conceptual framework in full. They first emphasised that the EEAS’s decision was adopted upon consultation with the European Commission’s service for Foreign Policy Instruments (FPI), which acts as the EPF administrator for assistance measures. FPI’s assessment is consistent with its previous decisions concerning similar requests for public access to the documents concerned. The representatives further explained that the conceptual framework summarises the role of each actor and contains information that would allow third parties to understand the pace and likelihood of specific equipment to be provided to Ukraine. In addition, it describes the maximum amount that can be reimbursed per time period and the pace of the reimbursement. In the EEAS’s view, this information could be used to plan military offences at critical times or to launch disinformation campaigns. Disclosure would also reveal details of the support provided to Ukraine by individual Member States.

According to the EEAS, the fact that the conceptual framework was established in 2022 does not make the information less sensitive. This is because the document contains the methodology for financing support to Ukraine which continues to be applied and could also be replicated and applied in the future. As emphasised by the EEAS, disclosing the granularity of the methodology entails the indication of patterns of behaviour, that, when cross-referenced with other information, make the EU and its Member States vulnerable to adverse actors.

Finally, the EEAS representatives acknowledged that the conceptual framework contains limited information that is already publicly available, such as information included in the relevant Council decisions.[4] The EEAS examined the possibility of granting partial access to the document, but had concluded that there would have been no added value because the vast majority of the substantive parts of the document were covered by the invoked exceptions, depriving the remaining part of any useful effect.  

The EEAS representatives provided additional information, which the EEAS declared confidential. The details are thus set out in a confidential annex to this report.

Document 2: The Audit Report of the annual accounts of the EPF

The EEAS representatives explained that document 2 is an audit report concerning the assistance measures under the EPF for the year 2022, drafted by the EPF College of Auditors. The Auditors are appointed by the EPF Committee from a pool of candidates proposed by the EU Member States. The College of Auditors is in charge of the external audit of revenue and expenditure as well as of the annual accounts of operations and assistance measures.

The EEAS representatives stated that, in line with the EPF implementing rules agreed by Member States, and the confidential character of the deliberations of the EPF Committee, the audit report shall, in principle, not be disclosed. However, in the interests of transparency and in accordance with Regulation 1049/2001, the EEAS had decided to grant partial access to the audit report.

Asked about the applicability of international auditing standards, according to which audit results are usually made public, the EEAS representatives underlined that international auditing standards are recommendations and guidance applicable to general auditing activities and they also foresee possibilities for an exception to transparency. Given the sensitive nature of the EPF activities, the full disclosure of these reports is not possible in the light of a balancing of interests. The auditors agreed to this because they know that their recommendations will be taken into account and discussed with the Member States. In addition, the fact that the recommendations are discussed internally improves the quality of these sensitive discussions.

The EEAS representatives further stated that the EPF is an off-budget instrument and that the applicable rules on audit and transparency monitoring are different from those applying to EU budgetary instruments. In particular, the EPF Implementing Rules provide that the default applicability of the Financial Regulation shall not be construed as giving the European Parliament control and information rights on Member States’ contributions to the EPF, or on operating expenditure related thereto, nor access to documents relating to such national contributions or expenditure. This does not mean, however, that there is no auditing of off-budget instruments. In the case of the EPF, internal and external control mechanisms are in place, as mandated by the EPF Council Decision, performed by the internal auditors and the EPF College of Auditors respectively. In addition, controls are made by the Member States, including parliamentary scrutiny, as appropriate.

As regards those parts of the audit report that had been redacted, the EEAS representatives said that these were considered to be particularly sensitive. They provided several examples as well as detailed confidential information on the consequences that disclosure might have. The explanations provided encompass the reasons why access had been refused to both the audit recommendations and the relevant EU institutions’ comments on them in light of the need to protect the public interest as regards defence and military matters and the EU’s international relations.

The EEAS representatives added that the implementation of the recommendations in the report, in liaison with the Member States, is still ongoing. The EEAS had therefore concluded that disclosure could seriously undermine the ongoing decision-making process, as it would reveal sensitive information about the content of the ongoing discussions and negotiations, and about the functioning of the audit process. 

The EEAS representatives noted the complainant’s argument that some Member States had already made available to the public details on their respective support to Ukraine. They argued that it is up to each Member State to decide what information it is willing to disclose to the public about the support it provides. However, this does not mean that the EEAS can disclose similar information on behalf of the EU or that information provided at the national level are complete. Rather, it has been agreed with all Member States what level of information they generally deem to be sensitive. The EEAS must respect the different requirements and conditions put forward by the Member States in order to respect their prerogatives in the area of defence and international relations. It is to be noted that the exposure of each Member State to adverse actors and their defence needs are different.

Conclusion of the meeting

The inquiry team thanked the EEAS representatives for their time and for the explanations provided, and the meeting ended.

 

Brussels, 17 July 2024

Nicholas Hernanz                                                                                                         Michaela Gehring

Inquiries Officer                                                                                                            Inquiries Officer

 

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

[2] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[3] See Article 4(2) of Council Decision 2022/338 on an assistance measure under the European Peace Facility for the supply to the Ukrainian Armed Forces of military equipment, and platforms, designed to deliver lethal force: http://data.europa.eu/eli/dec/2022/338/oj.

[4] Council Decision 2022/338 (see footnote 3 above) and Council Decision 2022/339 on an assistance measure under the European Peace Facility to support the Ukrainian Armed Forces: https://eur-lex.europa.eu/eli/dec/2022/339/oj.