Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The background to the complaint

1. The case mainly concerns the Commission's general tendency to hesitate to grant public access to documents that concern ongoing investigations about possible infringements of EU law by Member States. EU citizens living in Denmark had the impression that, within its policy field, the Commission's Directorate-General for the Environment ('DG Environment') adopted a more open practice around the years 2006-2007. When DG Environment subsequently reverted to the Commission's above-mentioned tendency, these citizens asked for justifications and suggested that the more open practice should continue to be followed. Since they were not satisfied with the Commission's replies, they turned to the European Ombudsman.

2. The more detailed background to the case is, in summary, as follows.

3. In a letter preceding the opening of the present case, the complainant encouraged the Ombudsman to conduct an own-initiative inquiry into this matter. He wrote as follows:

"It was with great interest that I read your decision closing the OI/[2/]2009/MHZ[[2]], concerning the European Commission.

My interest in the matter is due to the fact that I have previously requested - and obtained - public access to two opening letters from the Commission. The two opening letters were sent to Denmark in May 2006, carrying the registration numbers 2006/2144, relating to the Habitats Directive, and 2006/2134, relating to the Birds Directive. The Danish authorities granted public access to these opening letters after the Commission's DG Environment informed it as follows:

'DG Environment has changed practice concerning public access, and will in the future grant public access to all documents relating to ongoing infringement procedures which concern public access and will in the future grant public access to all documents which relate to ongoing infringement procedures that concern inconsistencies between national and EU legislation. In fact, dissemination in cases like the present ones can facilitate the application and the useful effect of the directives in question. This circumstance will be considered to constitute an overriding public interest which justifies disclosure.

I can therefore inform you that we do not oppose public access with regard to the opening letters to Denmark, concerning the application of Directives 79/409/EEA and Directive 92/43/EEA'.

In light of the above, the Danish authorities granted public access to the documents in December 2006. The reasons for disclosure by the Danish Ministry for Environment, are, together with the opening letters, available on the following address:

http://www.blst.dk/NATUREN/Natura2000plan/sidebar/Seneste_nyt/aabningsskrivelser.htm

Denmark subsequently received a supplementary opening letter as well as a reasoned opinion in case 2006/2134. The Danish authorities refused to grant me public access to these documents. Despite the change in practice referred to above, the Danish Ministry for Environment has continued to ask the Commission whether it can grant public access. The Commission now refuses to grant public access, referring to Regulation 1049/2001 and the Petri[e]-judgment, a refusal which the Danish government relies on.

It is interesting that you do not, in your own initiative inquiry, mention the openness practice adopted by the Commission in autumn 2006, as formulated in its above-quoted letter to the Danish government in November 2006.

I would therefore suggest that the European Ombudsman seeks to obtain clarification for the change of direction between November 2006 and 2009.

It is puzzling that the Commission has not informed the European Ombudsman that it implemented an openness policy in this field in 2006, a policy which has now been changed. It is a change in policy which the Commission apparently prefers to see passed over in silence, given that it did not inform the European Ombudsman of it in connection with the own initiative inquiry closed in 2009."

4. The Ombudsman informed the complainant that, rather than opening an own-initiative inquiry, he considered it more appropriate to examine possible complaints on the issue.

5. On 5 September 2010, the complainant submitted the present complaint.

6. The complainant informed the Ombudsman that, in 2009, he submitted an application for public access to a supplementary opening letter which the Commission had sent to Denmark.

7. The Commission replied negatively, informing the complainant that disclosure of the opening letter to a Member State is incompatible with the latter's right to confidentiality in infringement cases. It referred to the 2001 judgment of the Court of First Instance in the Petrie case[3]. On 3 May 2009, the complainant submitted a confirmatory application to the Commission's Secretariat-General. He drew the Commission's attention to the fact that a previous opening letter from the Commission concerning the infringement case in question had been published in 2006 on the website of the Danish Ministry for the Environment. He also asked the Commission whether there was any request from the Danish authorities not to disclose the opening letter that he had asked for in 2009. The complainant never received a reply to his confirmatory application.

The subject matter of the inquiry

8. On 5 October 2010, the Ombudsman opened an inquiry into the following allegations and claims.

Allegations

1. The Commission failed to reply to the complainant's confirmatory application of 3 May 2009.

2. The Commission failed to explain to the complainant why, following a new practice in 2006, it again introduced a restrictive practice with regard to public access to opening letters to Member States in infringement cases.

3. The Commission failed to inform the complainant whether the Danish authorities had requested it to refuse public access to opening letters and their annexes.

Claims

1. The Commission should respond to the requests contained in the above allegations.

2. The Commission should reconsider introducing the practice that it adopted in 2006, allowing for greater public access to opening letters addressed to Member States.

The inquiry

9. On 9 March 2011, the Commission submitted its opinion on the complaint. The Ombudsman forwarded the opinion to the complainant, who submitted his observations on it on 19 April 2011.

10. Before the Commission sent its above-mentioned opinion on 9 March 2011, the complainant sent a copy of the reply that he eventually received in response to his confirmatory application. The Commission's reply is summarised in the preliminary remarks below.

The Ombudsman's assessment

Preliminary remarks

This case is similar with another case before the Ombudsman

11. The Ombudsman notes that his present draft recommendations concern a main issue that is very similar to that raised in another case, that is, case 2207/2010/PB. The complainant and the Commission are aware of this fact. The Ombudsman's assessments in both cases are coordinated and the draft recommendations concerning both cases are being adopted on the same day.

12. In the case at hand, the common issues are reflected in the second allegation, which can usefully be examined through the following three headings: 'The existence of a new practice as from 2006'; 'The reasons for revoking the new practice'; 'The systemic issues raised regarding non-disclosure of infringement documents'.

13. Before assessing those issues, the Ombudsman will separately examine the first and third allegations.

The Commission's reply to the complainant's confirmatory application

14. As noted in paragraph 10 above, following the opening of the inquiry but before the Commission submitted its opinion, the complainant informed the Ombudsman that the Commission had replied to his confirmatory application. The reply, and a subsequent related statement in the Commission's opinion, are summarised here below.

15. In its detailed reply to the complainant, the Commission refused to provide access to the document concerned.

16. It first apologised for the late registration and handling of the complainant's confirmatory application. It stated that a thorough check of the relevant e-mail accounts had been carried out, and observed that the fact that the complainant's e-mail containing the confirmatory application did not appear amongst the incoming e-mails seemed to be due to a technical problem in the Commission's system.

17. The Commission then highlighted the context and object of the confirmatory application. It explained that it had sent a letter of formal notice to Denmark on 2 February 2009, in connection with the relevant infringement procedure (2006/2134). That procedure concerned the alleged inconsistency of Danish legislation with the EU's Birds Directive 79/409 (as amended). The infringement procedure was ongoing. The complainant was also a complainant with regard to the substantive issue just referred to (infringement complaint number 2007/4437), and was informed about the status of the Commission's investigation on 7 July 2010.

18. Under the title 'The Aarhus Convention', the Commission went on to state that, in his confirmatory application, the complainant had asked for the application to be handled in accordance with Directive 2003/4/EC concerning public access to environmental information. The Commission pointed out that this Directive, which implements part of the provisions of the Aarhus Convention, is addressed to the Member States, and that it therefore did not apply to the complainant's confirmatory application.

19. The Commission then referred to other legislation, Regulation 1367/2006[4], which makes some of the Aarhus Convention's provisions binding on the EU institutions. The Commission noted that Regulation 1367/2006 expressly states that the definition of "document" in Regulation 1049/2001[5] comprises environmental information as defined in Regulation 1367/2006. Article 3 provides that Regulation 1049/2001 applies to any application for access to environmental information that is in the possession of the EU institutions. In light of the foregoing, the Commission concluded that the document to which the complainant in the present case requested public access contains environmental information, and that, therefore, both Regulation 1367/2006 and Regulation 1049/2001 are applicable.

20. The Commission also addressed the specific issue of whether public access could be granted in the present case. The Commission's negative conclusion was based on the following considerations.

21. The Treaty infringement procedure referred to in Article 258 TFEU implies two phases, that is, the administrative phase and the judicial phase. The purposes of the administrative phase are, first, to give the Member State in question the opportunity to bring the Treaty breach to an end, second, to grant the Member State the right to be heard, and third, to define the scope of the dispute in case the matter is submitted to the Court of Justice.

22. Letters of formal notice constitute the first step in the administrative procedure. In such letters, the Commission asks the Member State to put forward its comments on the concrete allegations, and to do so within a specified deadline. The supplementary letter referred to above indicates the possible breaches that the Commission became aware of through additional infringement complaints from citizens, as well as through its examination of the legislation and further information that Denmark provided.

23. The Commission's intention in issuing a supplementary letter of formal notice was to grant Denmark the right to be heard, before it decided whether to proceed to the next step.

24. The Commission then informed the complainant that, since the infringement case was ongoing, it could not grant public access to the supplementary letter of formal notice. It based its decision on the third indent of Article 4(2) of Regulation 1049/2001, which provides that "[t]he institutions shall refuse access to a document where disclosure would undermine the protection of: [...] - the purpose of inspections, investigations and audits".

25. The Commission explained that, in order to fulfil its task as the guardian of the Treaties, and to find a solution to breaches without having to bring judicial proceedings, it was necessary to maintain a climate of mutual trust between itself and Denmark throughout the various stages of the procedure, up to the point where the case had been finalised.

26. Had the document in question been disclosed at the time when the complainant asked for it and, therefore, at a point in the procedure when the case had not yet been finalised, this would have had a negative impact on the deliberations that took place between the Danish authorities and the Commission. This, in turn, would have reduced the chances of reaching an amicable solution, preferably without having to bring the matter before the Court of Justice. The document's disclosure would, therefore, have clearly undermined the purpose of the investigation of infringement procedure 2006/2134.

27. This interpretation has been confirmed by the Court of First Instance [now the General Court], in the Petrie case[6]:

"As the Court pointed out in paragraph 63 of its judgment in WWF..., the Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure. This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State in question regarding the latter's voluntary compliance with the Treaty requirements may continue during the court proceedings and up to the delivery of the judgment of the Court of Justice. The preservation of that objective, namely an amicable resolution of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgment, justifies refusal of access to the letters of formal notice and reasoned opinions drawn up in connection with the Article 226 EC proceedings on the ground of protection of the public interest relating to inspections, investigations and court proceedings, which comes within the first category of exceptions in Decision 94/90."

28. The Commission further pointed out that, when the Court of Justice interpreted the above-mentioned provision of Regulation 1049/2001 in a more recent judgment[7], it emphasised the bilateral nature of the administrative procedure between the Commission and a Member State. The Court of Justice held that "the interested parties, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file. Account must be taken of that fact for the purposes of interpreting the exception laid down by Article 4(2), third indent, of Regulation No 1049/2001. If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question."

29. Like the procedure for the review of state aid, infringement procedures based on Article 258 TFEU are a bilateral matter, in which the Commission's position is addressed exclusively to the Member State in question. The Court's interpretation cited above is therefore directly applicable to those infringement procedures.

30. The Commission then addressed the issue of partial access, noting that such access could not be granted. This was because the document in question was fully covered by the exception the Commission had invoked.

31. The Commission next addressed the issue of the "overriding public interest", noting that, according to Regulation 1049/2001, the exception that it invoked is not applicable if there is a so-called "overriding public interest" in disclosure. The Commission pointed out that such an interest must, first, be "public", and, second, outweigh the harm that disclosure will cause.

32. The Commission noted that, in accordance with Article 6 of Regulation 1367/2006 "[a]s regards Article 4(2), first and third indents, of Regulation (EC) No 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 (EC) No 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."

33. The Commission pointed out that the document requested by the complainant did not contain any information about emissions. Moreover, it noted that, even if the document did contain such information, the overriding public interest in disclosure referred to in the article cited above would not apply because the document forms part of an investigation concerning possible infringements of EU law.

34. The Commission finally explained to the complainant that the fact that its investigation was based on an infringement complaint he had submitted did not, in legal terms, grant him the status of a 'party' to the proceedings. The complainant did not, therefore, enjoy any more extensive rights of access to the investigation documents than other citizens did.

35. In his e-mail forwarding the Commission's decision summarised in the preceding paragraphs, the complainant emphasised that the Commission failed to take into account the more open practice referred to above.

36. In its subsequent opinion on the complaint to the Ombudsman, the Commission informed the complainant and the Ombudsman that, "[s]ince the infringement proceedings have been closed in the meantime, the Commission has reconsidered this decision and is now disclosing the requested document."

A. Allegation of failure to reply to the complainant's confirmatory application of 3 May 2009

Arguments presented to the Ombudsman

37. In its opinion, the Commission stated that it had no explanation for the fact that the complainant's application did not reach the electronic mailbox dedicated to applications for access to documents. The Secretariat-General of the Commission was unaware of his application. The complainant did not call the Commission's attention to the fact that he did not receive any feedback with regard to his application and waited quite some time before making a complaint to the Ombudsman. The Commission expressed its concern at this exceptional and unexplained event. In these particular circumstances, the Commission considered that this should not be treated as maladministration. The application was immediately registered and examined as soon as the Commission became aware of its existence.

38. In his observations on this part of the Commission's opinion, the complainant made the following comments.

39. He stated that, following his initial e-mail to the Commission's Secretary-General, he received two return e-mails. He understood these return e-mails as a clear indication that the Commission had, in fact, received his e-mail. The complainant enclosed copies of these return e-mails. The first contained the following information[8]:

"Your message

To: SG ACCES DOCUMENTS; [name of official] (ENV)

Subject: Ønske om aktindsigt i en supplerende Abningsskrivelse til
Danmark vedrørende 79/409 EF, Fugledirektivet [request for public access in letter of formal notice to Denmark concerning 79/409/EC, Birds Directive]
Sent: Sun, 3 May 2009 08:11:16 +0200

was deleted without being read on Sun, 3 May 2009 19:42:17 +0200

Final-Recipient: RFC822; [official's e-mail address]

Disposition: automatic-action/MDN-sent-automatically; deleted
X-MSExch-Correlation-Key: DNaAepq040iQ2ChA+6XFmg==
Original-Message-ID: <4 9FD3584.60704083vip¦cvbercitv.dk>

No virus found in this incoming message.
Checked by AVG - www.avg.com

Version: 8.0.238 / Virus Database: 270.12.15/2093 - Release Date: 05/02/09
14 :23:00".

40. The second return e-mail contained the following information:

Subject: Read: Ønske om aktindsigt i en supplerende âbningsskrivelse til Danmark vedrarende 79/409 E0F, Fugledirektivet [request for public access in letter of formal notice to Denmark concerning 79/409/EC, Birds Directive]

From: <[official's name]

Date: Mon, 4 May 2009 07:05:17 +0200

To: <[complainant's name]>

Your message

To: SG ACCES DOCUMENTS ; [official's name](ENV)

Subject: Ønske om aktindsigt i en supplerende Abningsskrivelse til
Danmark vedrArende 7 9/4 0 9 EAF/ Fugledirektivet [request for public access in letter of formal notice to Denmark concerning 79/409/EC, Birds Directive]

Sent: Sun, 3 May 2009 08:11:16 +0200

was read on Mon, 4 May 2009 07:05:17 +0200

Final-Recipient: RFC822; [official's e-mail address]

Disposition: automatic-action/MDN-sent-automatically; displayed
X-MSExch-Correlation-Key: cAeilpOLj UKeHyRbYrx07A==
Original-Message-ID: <49FD3584 . 607 04 08(3vip. cybercity. dk>

No virus found in this incoming message.
Checked by AVG -

Version: 8.0.238 / Virus Database: 270.12.15/2093 - Release Date: 05/02/09
14:23:00

41. The complainant indicated that, in light of these return e-mails, and because he thought that the Secretary-General's case-handling could take a considerable time, he initially did not complain about the slow handling of his confirmatory application.

The Ombudsman's assessment

42. The Ombudsman notes that the Commission maintains a dedicated functional electronic mailbox designed to facilitate the efficient handling of applications for public access (sg-acc-doc@ec.europa.eu). It appears that, in this case, the complainant sent his confirmatory application dated 3 May 2009 to that mailbox. In its opinion on the present complaint, the Commission expressed its puzzlement at the fact that the confirmatory application remained unidentified. It took the view that, since no-one knew about the confirmatory application, the fact that it was not handled should not be considered to constitute an instance of maladministration.

43. The Ombudsman shares the Commission's bewilderment. In his observations, the complainant enclosed copies of two return e-mails from the Commission, both apparently sent in reply to his confirmatory application. Whereas the first return e-mail stated that the complainant's e-mail had been "deleted without being read", the second one indicated that the e-mail "was read on Mon, 4 May 2009...". In these circumstances, the complainant could reasonably presume that the Commission was handling his application.

44. The Ombudsman considers that the information relating to this part of the case need not give rise to a formal finding of maladministration. The Ombudsman underlines that his institution's relationship with the other institutions is governed by mutual trust and confidence. He therefore has no reason to believe that, when the Commission examined the present complaint and drafted its opinion, it was aware of the two return e-mails that the complainant enclosed in his above-mentioned correspondence.

45. Moreover, the Ombudsman notes that the failure to handle the complainant's confirmatory application is a secondary issue in the present case, which mainly concerns the issue examined in relation to the second allegation.

46. The Ombudsman nevertheless invites the Commission to provide information on the outcome of its investigation into the issue of what became of the above-mentioned correspondence.

B. Allegation of failure to inform the complainant whether the Danish authorities had requested the Commission to refuse public access

Arguments presented to the Ombudsman

47. The complainant alleged that the Commission failed to inform him whether the Danish authorities had requested it to refuse public access to the opening letters and their annexes.

48. In its opinion, the Commission stated that, as the documents are Commission documents, the Danish authorities were not consulted on their disclosure. It referred to Article 4(5) of Regulation 1049/2001, pursuant to which Member States can only request the Commission not to disclose documents originating from them.

49. In his observations, the complainant did not comment further on this aspect of the case.

The Ombudsman's assessment

50. It appears from the Commission's opinion that the reply to the complainant's query is negative. The Ombudsman moreover confirms that the Commission accurately states the law in its reasoning reproduced in paragraph 48 above.

51. In light of the foregoing, and the lack of any comments on this issue in the complainant's observations, the Ombudsman concludes that there are no grounds for further inquiries.

C. Allegation of failure to explain why, following a new practice in 2006, the Commission again introduced a restrictive practice with regard to public access to opening letters addressed to Member States in infringement cases and related claims

The short-lived new practice

52. This issue requires an assessment that is frank and free of semantic considerations. To attempt a definition of the term 'practice' is neither useful nor necessary. On the basis of the available evidence, referred to in paragraph 3 above, it is clear that the Commission's DG Environment at one point in time stopped systematically following the Commission's usual approach of not granting public access to opening letters in infringement procedures relating to its own specific field of work. It is not clear why this happened and the possible explanations are at any rate not necessary for the present part of the assessment. Subsequently, the persons in charge within the Commission brought DG Environment's approach into line with the above-mentioned usual approach. This is essentially what the Commission stated in its opinion when it declared that "[o]n further consideration following internal debate, in 2009, DG Environment re-aligned its approach with the general approach of the Commission, which is based on a presumption of non-disclosure, as confirmed by the case-law."

53. The Ombudsman fully understands the complainant's disappointment at the fact that the Commission did not more openly and expressly engage with his understanding that the above-mentioned steps taken by DG Environment constituted a new disclosure practice, authorised and formally established by the Commission as an institution. It is true that the Commission hesitated, first in its correspondence with the complainant and, subsequently, before the Ombudsman, openly to acknowledge the fact that DG Environment tried out a new approach that was intended to constitute a rule. The Commission could have shown greater openness and frankness towards the complainant from the beginning, and could have avoided certain not very empathetic remarks in its opinion that seemed to suggest that the complainant had simply misunderstood what had happened.

54. At the same time, the Ombudsman also notes that the above-mentioned development brought to light important diverging views within the Commission as to what is the most effective approach to openness in infringement cases. It goes without saying that such an inconsistency is potentially embarrassing to any organisation, and that an initial defensive approach, intended to avoid openness on that issue, is not unnatural. The common understanding of openness in the EU public administration requires, however, that the citizen be told the truth from the outset. This did not happen in the present case.

55. Moreover, in light of the delay that occurred in the submission of that opinion, the Ombudsman ventures to conclude that the issue was the subject of some discussion, possibly even debate, within the Commission. Again, that is a sign of a normally functioning administration. The fact that the Commission's opinion could have been even more frank in its account of the facts and its related conclusions does not detract from the fact that the Commission in the end conveyed information, quoted above, which enabled the Ombudsman to reach his related factual finding.

56. In light of the above, the Ombudsman concludes that it was regrettable that the Commission did not more openly engage with the complainant about the actual and well-documented facts relating to the new approach that its DG Environment experimented with. The Ombudsman does not, however, consider it necessary to issue a formal, public critical remark in this respect.

The explanations given for revoking the short-lived new practice

57. This part specifically concerns the specific issue of a revocation of the practice that the complainant was led to believe existed.

58. The Ombudsman notes that the Commission made the following correct remarks, initially in its communications with the complainant and subsequently in its opinion.

59. First, the EU regulation 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[9], excludes the application of the presumption of an overriding public interest in disclosure of documents as far as infringement procedures are concerned. The importance of this point is that, in certain circumstances, the Aarhus Convention provides for a presumption of an overriding public interest in the disclosure of information.

60. Second, the EU's rules on public access to documents, as confirmed by case-law, provide that the specific documents to which citizens request access must be subject to an individual and concrete assessment. The case-law only exceptionally allows the institutions to decide on public access to documents on the basis of categories of documents. It would therefore be very problematic to reach the conclusion that the Commission should instruct its DG Environment to make opening letters public as a rule.

61. In light of the above, the Ombudsman cannot conclude that principles of good administration require the Commission to (re)introduce the approach that its DG Environment experimented with for a short period.

The systemic issues raised regarding non-disclosure of infringement documents

62. The basic systemic issue raised in the present case is well-known. It is whether respect for EU law is best ensured through an open enforcement policy or through a secretive one. The Commission appears to consider that the latter policy better ensures respect for EU law. The complainant believes the opposite.

63. It goes without saying that the Ombudsman has based his considerations on the presumption that all relevant actors, including the Commission and the complainant, share a common desire for the enforcement of EU law to be swift and effective. Moreover, it is undeniable that the Commission has taken very significant steps to increase the level of openness in relation to closed infringement investigations. It has done so even to the point of disclosing documents from a Member State despite the latter's objections (see Case T-59/09, Germany v Commission[10]). The issue here at stake is whether, in relation to ongoing infringement investigations, the above-mentioned common aim is best ensured through secrecy or through openness.

64. The European Ombudsman is not aware of any detailed empirical research into the benefits or drawbacks, for the Rule of Law and for compliance with EU law, of either an open or a secretive enforcement policy. It is, however, well known that EU Member States which generally have a more transparent public administration also tend to enjoy a high degree of Rule of Law and of compliance with EU law. It is also noteworthy that the internationally recognised transparency organisation Transparency International is financially supported by both public and private actors of very different kinds. Transparency as a means of better ensuring the Rule of Law is based on a presumption that appears to be broadly shared by very different societal actors, including powerful commercial organisations.

65. The European Commission has a long and profound experience in enforcing EU law. The Ombudsman naturally takes very seriously the preoccupations that this Institution may have with regard to risks associated with an increased level of openness in relation to its Treaty-based task of guarding the Treaties and the law flowing from them. If it is indeed the case that the Rule of Law in the EU would suffer detriment because of greater transparency in the Commission's enforcement approach, it would only be natural for the Commission to opt for secrecy.

66. The Ombudsman notes that the European Commission, and the tasks it fulfils, have evolved over time. For a long period, the Commission was very much 'on its own' in ensuring Member States' respect for EU (or EEC) law. Its main co-actor, the Court of Justice, was, and remains, a body that by its very nature can only act in response to cases brought before it. In such a context, the presumption that secrecy - some would in the earlier context broadly refer to diplomacy - would better serve the Commission's enforcement tasks, may indeed be entirely plausible.

67. The institutional and societal environment has changed however. The EU now has a strong and mature European Parliament. It also has a well-established civil society operating across the various sectors and issues covered by Union policy making. Other slightly less visible or well-known developments have taken place too, such as, to mention but one, the creation of a European network of ombudsmen who apply EU law.

68. In the Ombudsman's view, it is a plausible presumption that the overwhelming majority of such (historically) recent EU actors share, notwithstanding their sometimes diverging orientations, the above-mentioned common desire to contribute to a strong Rule of Law in the EU. It appears to be an equally plausible resumption that they are better able to support that aim if they have more ample knowledge of ongoing EU law enforcement issues.

69. When he opened the present inquiry, the Ombudsman asked the Commission a number of questions concerning its approach to public access to documents relating to infringement cases. He was prompted to do so by the content of the correspondence that the Commission had exchanged with the complainant. In its opinion, the Commission replied to those questions, essentially outlining the various approaches and arguments on which it intends to rely to prevent public disclosure of documents relating to ongoing infringement cases. The Ombudsman considers that the present inquiry presents an appropriate opportunity to address some of the key issues relating to public access to documents in relation to ongoing infringement cases.

70. The above-mentioned approaches and arguments can be summarised as follows.

71. The starting point is a general presumption of non-disclosure. The Commission makes a general reference to "the case-law" on the issue and, specifically, to a relatively recent state aid case. The general presumption derives from the interest to protect the purpose of infringement investigations (the third indent of Article 4(2) of Regulation 1049/2001). The risk identified by the Commission is that of "undue external pressure" which, in its view, would likely put the purpose of an infringement investigation at risk.

72. In addition, the Commission refers to well-established case-law that recognises a right of the Member States to expect the Commission to observe confidentiality as regards investigations which may lead to infringement proceedings (Petrie judgment, see paragraph 27 above).

73. Besides the interest of protecting the purpose of the infringement investigation, the possibility that an ongoing infringement investigation may give rise to court proceedings means that the interest to protect court proceedings is at stake. In the Commission's view, this interest would in itself constitute a reason for not disclosing documents relating to ongoing infringement investigations.

74. With regard to the general presumption of confidentiality, the Ombudsman agrees that the Court's case-law contains indications that such a presumption exists. The Ombudsman is not, however, fully convinced that the specific court case which the Commission referred to (the Technische Glasswerke judgment) is a useful analogy. In that case, the Court referred to "interested parties" and a "system for the review of state aid". The Commission itself has often emphasised that, in general infringement procedures, citizens are not 'interested parties', and that the general infringement procedures (in the pre-litigation phase) are meant to constitute flexible fora for negotiation between itself and the Member State in question. To describe this as a "system" comparable to the specific rules for handling state aid issues does not appear convincing.

75. More recent case-law, however, does appear to refer to a general presumption along the lines of what the Commission intended to put forward. In its judgment of 14 February 2012, the General Court stated that "... it should first be pointed out that, by contrast with an infringement procedure which is still under way, there is no general presumption that the disclosure of exchanges between the Commission and a Member State in the context of an infringement procedure which has been closed would adversely affect the purpose of the investigations, referred to in the third indent of Article 4(2) of Regulation No 1049/2001"[11]. What is also noteworthy is that the presumption to which the General Court alluded is linked to the provision referred to in the quoted passage. It does not appear to be linked to a presumption that is derived from the above-mentioned distinct, albeit related, right of the Member State to expect confidentiality from the Commission.

76. It follows that the Commission accurately referred to "a presumption" based on the said provision. With regard to the scope and the application of that presumption, the Ombudsman is not, however, convinced that the Commission's approach is fully in line with Regulation 1049/2001 and the relevant case-law.

77. To the Ombudsman's understanding, the general presumption referred to by the General Court is one that serves as a starting point and which, at most, reduces the Commission's intellectual and administrative burden in explaining to persons requesting documents why disclosure cannot be granted. It allows, for instance, the Commission to refer to 'standard', though accurate, explanations for non-disclosure.

78. Moreover, the Ombudsman can only understand the presumption to apply in 'simple' situations, that is, when the infringement investigation is not characterised by any exceptional circumstances, and where the Member State itself has not yet become involved in the issue of the possible disclosure of documents.

79. Finally, the Ombudsman points out that the issue of public access to documents in ongoing infringement investigations must be characterised by a minimum degree of equality between the two parties involved, that is, the Commission and the Member States. In the above-mentioned judgement Germany v Commission, the General Court emphasised, in relation to the reasons that the Member States must provide when they oppose disclosure, that the well-known basic requirements concerning the reasons for non-disclosure apply. This means that the reasons "must be of a specific nature and the risk of a protected interest being adversely affected must be reasonably foreseeable and not merely hypothetical". These requirements should, therefore, also apply to the Commission's possible standard explanations referred to in paragraph 77 above.

80. In the present inquiry, the Commission used a formulation that it appears to wish to adopt as a standard explanation for applying the exception set out in the third indent of Article 4(2) of Regulation 1049/2001. It is that disclosure would be likely to cause "undue external pressure".

81. The Ombudsman is not convinced that this formulation adequately complies with the requirements referred to above in paragraph 79. The expression may suffice if, as a matter of fact, the Commission could refer, also in standard form, to past experience that would clearly lend credibility to the expected risk.

82. The Ombudsman is also concerned that, when left undefined, the notion of "undue external pressure" can give the general public the impression that the Commission essentially wishes to refer to attempts by members of civil society, or even public policy makers, to bring forward, during the infringement investigation, their points of view regarding the issues that are the subject of the infringement investigation in question.

83. In light of the foregoing, the Ombudsman will make a related draft recommendation below, which will be accompanied by a further recommendation regarding future individual applications for public access to documents relating to ongoing infringement investigations.

84. With regard to the second reason the Commission referred to above, namely, the well-established case-law (Petrie) that recognises a right of the Member States to expect the Commission to observe confidentiality as regards investigations which may lead to infringement proceedings, the Ombudsman notes that the case-law in question appears to remain valid (see, for instance, the cases referred to in the judgment in case API v Commission[12], paragraphs 120-121). Because, however, the Commission has often adopted a broad brush approach in order to refuse public disclosure, by invoking the Petrie judgment, the Ombudsman considered it necessary to inquire into the Commission's approach when the Member State itself either does not oppose public disclosure, or even considers it to be fully appropriate. In such instances, the Commission's response, also adopted in its opinion on the present complaint, is to point out that two other exceptions would probably apply, namely, the likely harm to the purpose of investigations (discussed above) and the likely harm to court proceedings (see below).

85. The Ombudsman, whose mandate requires him to consider the systemic implications of the issues before him, cannot conclude that the issue has been adequately dealt with even if those two exceptions may be validly invoked. The reason for this is an issue that the complainants in case 2207/2010/PB refer to, namely, that a Member State which would have neither policy-based nor legal objections to public disclosure of a document relating to an ongoing infringement investigation, may be very reluctant actually to disclose the document if the Commission informs it that it would be better to keep it confidential. Put otherwise, there is, in such an eventuality, a serious risk that the citizen may well be faced with a most unfortunate 'merry-go-round' situation.

86. The Ombudsman is not convinced that an appropriate degree of transparency is guaranteed in such situations. It is important to address this matter, notably because recent case-law has greatly enhanced the level of transparency that applies to the opposite situation, where it is the Member State that asks the Commission not to disclose documents[13].

87. The Ombudsman will accordingly recommend that the Commission introduce measures to ensure that individuals who wish to apply for access to documents relating to ongoing infringement investigations are guaranteed an adequate degree of transparency regarding the background to any possible refusal of disclosure, namely, the position of the Member State concerned.

88. With regard to the Commission's view that disclosure of documents relating to ongoing infringement investigations may harm court proceedings because the administrative phase of the infringement procedure may give rise to a court case, the Ombudsman can only note that the Commission did not explain this point of view in any detail. The Ombudsman is not aware of any principles, rules, or case-law that clearly lend the argument credibility. He is therefore unable to engage with the Commission's point of view, but can only remind the Commission that, if it wishes to invoke the said argument in response to particular applications for public access to documents, the case-law requires it to explain in concrete and non-hypothetical terms why the argument is valid.

B. The draft recommendations

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendations to the European Commission:

The Commission should, when it receives applications for public access to documents relating to ongoing infringement cases, systematically consult the Member State concerned in order to obtain its view on whether it wishes to insist on its right to confidentiality referred to in the case-law on that issue. The written correspondence on the consultation should, as a rule, be public.

The Commission should, whenever a Member State consults it about possible public disclosure of documents relating to ongoing infringement investigations, and in case of a negative opinion, produce a reply that complies with the standards now required of Member States when they recommend the non-disclosure of a document by the Commission. Relatedly, the Ombudsman recommends that, as a rule, the Commission's reply be classified as public.

The Commission should, in the present case and, generally, when handling applications for access, explain to applicants what it means by the expression "undue external pressure" used to invoke the protection of the purpose of investigations as a basis for non-disclosure of documents relating to ongoing infringement investigations. Specifically, the Commission should explain what kind of potential external actors it wishes to refer to, and what it means by "undue" and "pressure".

Moreover, the Commission should examine, when preparing its response to the present draft recommendations, whether it possesses concrete information on specific examples of intended or accidental disclosure of documents relating to ongoing infringement investigations which clearly resulted in harm to the purpose of the investigations in question, within the restrictive meaning of that term in Regulation 1049/2001. It should give such information in its response, and it should provide copies of any relevant documentation.

The Commission and the complainant will be informed of these draft recommendations. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 31 October 2012. The detailed opinion could consist of the acceptance of the draft recommendations and a description of how they have been implemented.

Finally, with reference to the Ombudsman's factual findings related to the first allegation (paragraphs 42 - 46), the Ombudsman would be grateful if the Commission could look into the issue of what became of the complainant's e-mails in question. The Ombudsman encloses a copy of the complainant's observations for that purpose.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 18 July 2012

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[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] http://www.ombudsman.europa.eu/en/cases/decision.faces/en/4390/html.bookmark

[3] Case T-191/99 Petrie and others v Commission [2001] ECR II-3677.

[4] 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.

[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] Petrie v Commission, referred to in footnote 4 above, paragraph 68.

[7] Case C-139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I-5885, paragraph 58.

[8] The square brackets appearing in the text of the messages quoted below either replace personal data or contain a translation of the text provided by the Ombudsman's services.

[9] Regulation No 1367/2006, referred to in footnote 5 above.

[10] Judgment of the General Court of 14 February 2012, not yet published in the ECR.

[11] Case Germany v Commission, referred to in footnote 10 above, paragraph 78, emphasis added.

[12] Case T-36/04 API v Commission [2007] ECR II-3201.

[13] See Case C-64/05 P, Sweden v Commission, judgment of 18 December 2007, not yet published in the ECR; and Case T-59/09, Germany v Commission, judgment of the General Court of 14 February 2012, not yet published in the ECR.