Background to the complaint

1. In July 2022, the complainant, an Italian lawyer and academic, made a request for public access[1] to documents held by the European Commission. The documents requested concerned financial information on expenditure, beneficiary authorities and actions implemented in the framework of the EU funded project "Support to Integrated Border and Migration Management in Libya" (hereafter ‘SIBMILL project’).

2. The SIBMILL project is funded by the Emergency Trust Fund for Africa, a financial instrument supporting actions related to the root causes of irregular migration and better management of migration flows.[2] The SIBMILL project was launched in 2017 with the objective to strengthen the capacity of relevant Libyan authorities in the areas of border and migration management, including border control and surveillance. The project included two phases, both implemented by the Italian Ministry of Interior.

3. The Commission replied to the complainant’s request in November 2022. It identified 59 documents as falling within the scope of the request. It granted limited access to four documents (with redactions of personal data) consisting of cover e-mails, but refused access in full to the remaining 55 documents, arguing that disclosure of these documents would undermine the protection of the public interest as regards public security and the EU’s international relations, as well as the privacy of persons named in the documents.

4. The Commission explained that the documents at issue contain detailed information on capacity building and technical assistance activities implemented by Italy to support the competent Libyan authorities in preventing and tackling migrant smuggling and human trafficking. Disclosure of such information, the Commission said, would undermine the protection of the public interest as regards public security. It would also be detrimental for the EU’s relations with its Member States and with the Libyan authorities, potentially jeopardising the EU and the other partners’ ability to provide support to vulnerable migrants in Libya.

5. The complainant asked the Commission to review its decision (by making a ‘confirmatory application’) in November 2022.

6. The Commission acknowledged receipt of the confirmatory application and said it would reply within the applicable time limits, before 16 January 2023. It then informed the complainant that, due to the need to carry out consultations, it would not be in a position to reply in time. After having sent a reminder, to which the Commission failed to reply, the complainant turned to the Ombudsman in June 2023.

The inquiry

7. The Ombudsman opened an inquiry into the Commission’s failure to reply to the confirmatory application submitted by the complainant.

8. In the course of the inquiry, and in view of the persisting delay, the Ombudsman inquiry team inspected the documents at issue. Following a review of the documents, the Ombudsman made a proposal for a solution that the Commission grant the widest possible access to the documents, in particular to financial information about the project.

9. The Commission replied, after a very significant delay, to the confirmatory application and, a few weeks later, to the Ombudsman’s proposal for a solution. The Ombudsman received the complainant’s comments on the Commission’s reply.

The Ombudsman's proposal for a solution

10. Following the inspection of the documents by her inquiry team, the Ombudsman took the view that the Commission should have granted partial access to those documents with information on how the SIBMILL project was financed.

11. The inspection of the documents showed that they can be grouped into five broad categories:

• 1. Narrative reports: 23 documents that are descriptive reports about the state of play of the project.
• 2. Transmission notes/cover letters: 13 documents, four of which had already been partially disclosed to the public.
• 3. Financial reports: six documents consisting of tables showing the breakdown of costs for the project, either per year or for a longer period.
• 4. Accounting documents: 11 documents directly extracted from the Commission’s accounting system (such as payment orders, invoice headers or credit operations).
• 5. Other documents: four additional documents such as programme updates, contractual documents or other reports not falling within any of the categories above.[3]

12. The Ombudsman considered that significant parts of the documents could be disclosed to the public, in particular the transmission notes and cover letters which did not contain any sensitive information, as well as the accounting documents. In line with the general principle that the public has the right to know how EU money is being spent, she proposed that the Commission should disclose - as a minimum - the main budget lines for actual expenditure in the financial reports. She also said that partial access to key information in the other documents could be granted.

13. The Ombudsman therefore proposed that the Commission reconsider its position on the complainant’s request, with a view to granting the widest possible access to documents containing financial information.[4]

14. Following the Ombudsman’s solution proposal, the Commission replied to the complainant’s confirmatory application in June 2024. The Commission maintained its refusal to grant access to the narrative reports (category 1 above), but agreed to give wide partial access to the rest of the documents, with redactions of personal data and bank account numbers.

15. The Commission said that the narrative reports contain details of the activities carried out within the framework of the project, including procurement and technical support to national stakeholders. It insisted that, considering the political and institutional situation in Libya, disclosure of the documents could undermine public security by allowing smugglers and other perpetrators to identify the challenges faced by the project, their causes, and corrective actions taken to remedy them, and exploit them to their advantage. It concluded that there is a reasonably foreseeable and not purely hypothetical risk that disclosure of (certain parts of) the documents concerned would undermine the protection of the public interest as regards public security and international relations.

16. The Commission subsequently replied to the Ombudsman’s proposal for a solution in August 2024.[5] In addition to the arguments presented in reply to the confirmatory application, the Commission concluded that it had granted the widest possible access to the documents, notably to documents containing financial information.

17. The complainant welcomed the Ombudsman’s proposed solution and the Commission’s decision to grant wide public access to the financial reports and the total amount of public spending relating to the project. They accepted the reasons for not disclosing the bank account numbers. However, they expressed concerns that more access could have been granted to the narrative reports, especially in light of the critical issues and challenges related to fundamental rights compliance in the project’s implementation and the mitigation measures that have been adopted to address them.

The Ombudsman's assessment after the proposal for a solution

On the level of access granted

18. The Ombudsman welcomes the Commission’s positive reply to her solution proposal, and the wide partial access the Commission has now given to the documents at issue. She notes that the Commission implemented all the specific suggestions made in her solution proposal, and granted wide partial access to the financial information contained in the documents.

19. The Commission maintains its position that access to the narrative reports (category 1 above) has to be refused, based on the need to protect the public interest as regards public security and the EU’s international relations. Based on the inspection of the narrative reports, the Ombudsman confirms that they contain sensitive and detailed information about the SIBMILL project, such as sensitive operational data about border management, the deployment of Italian officers on the ground, the type of vessels used by the Libyan Coast Guard and tenders for the purchase of sensitive technology. In view of this, the Ombudsman considers that the Commission’s position that disclosure of the documents would result in risks to public security is not manifestly wrong.

20. The Ombudsman notes the complainant’s arguments as regards the public interest in knowing about how the Commission monitors fundamental rights in EU-funded projects in Libya. However, the protection of the public interests as regards public security and the EU’s international relations cannot be overridden by any other public interest under the EU legislation on public access to documents.^[6] Thus, the complainant’s arguments cannot be taken into account in that context.

21. The Ombudsman therefore considers that the Commission’s response to her solution proposal and the wider access that it granted to the documents at issue resolved the complaint.

On the delays

22. The Ombudsman notes the considerable delay that the Commission incurred in this case. According to Regulation 1049/2001, an EU institution should, within 15 working days from registration of the confirmatory application, either grant access to the document requested or, in a written reply, state the reasons for the total or partial refusal. The time limit of 15 working days may be extended by a further 15 working days in exceptional circumstances.[7]

23. In this case, the Commission took more than 17 months to take a decision on the complainant’s confirmatory application.

24. This case is thus another example of the significant and systemic delays the Commission encounters in dealing with confirmatory applications, which the Ombudsman considered to amount to maladministration.[8] The Ombudsman has already urged the Commission to address the systemic delays in this area and to respect the time limits in Regulation 1049/2001.

25. The Ombudsman criticises in the strongest possible terms the significant delay incurred by the Commission in replying to the complainant’s request.

Conclusions

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

By agreeing to provide wider partial access to the requested documents, the Commission has resolved the complaint.

The Ombudsman profoundly regrets the delay incurred by the Commission in replying to the complainant’s request (17 months at review stage). She insists that failure to comply with the time limits established by the legislator in Regulation 1049/2001 cannot be good administration. She again urges the Commission to improve its handling of public access requests as a matter of priority, and refers it to the recommendation in her strategic inquiry OI/2/2022/OAM.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 15/10/2024

 

[1] 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.

[2] The Emergency Trust Fund for Africa (2015-2022) had a budget of €5 billion that it used to fund projects in 26 African countries across three regions: Sahel and Lake Chad, Horn of Africa, and North Africa. For more information, visit: https://trust-fund-for-africa.europa.eu/our-mission/objective-and-governance_en

[3] The sum of all documents does not match the number of documents identified by the Commission (59) because the inspection showed that some documents were duplicates.

[4] The full text of the Ombudsman’s proposal for a solution is available at: https://www.ombudsman.europa.eu/solution/193753

[5] The Commission’s reply is available at: https://www.ombudsman.europa.eu/doc/correspondence/193754  

[6] See Article 4(1) of Regulation 1049/2001.

[7] Article 8 of Regulation 1049/2001.

[8] Recommendation on the time the European Commission takes to deal with requests for public access to documents (strategic inquiry OI/2/2022/OAM), available at: https://www.ombudsman.europa.eu/en/recommendation/en/167661