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Decision on how the European Commission dealt with a request for public access to correspondence exchanged between European Commissioner for Agriculture and the Polish government (case 65/2023/SF)
Decision
Case 65/2023/SF - Opened on Wednesday | 11 January 2023 - Decision on Monday | 18 December 2023 - Institution concerned European Commission ( No further inquiries justified ) - Country Germany
Complaint submitted
08/01/2023Analysis of the complaint
09/01/2023Inquiry ongoing
11/01/2023Preliminary outcome
29/06/2023Inquiry outcome
18/12/2023
The complainant sought public access to correspondence the Commissioner for Agriculture exchanged with the Polish government and with the Polish party ‘Prawo i Sprawiedliwość’.
The Commission identified 57 documents with 33 annexes as falling within the scope of the complainant’s request. It granted wide partial access to 55 documents and all 33 annexes, redacting personal data only. However, it refused access to two documents in their entirety. The complainant asked the Commission to review its decision to refuse access to one of the two documents (by making a ‘confirmatory application’). When the Commission failed to reply, the complainant turned to the Ombudsman.
In the course of the inquiry, the Commission confirmed its decision to refuse access to the one document at issue. In doing so, the Commission invoked an exception under the EU legislation on public access to documents, arguing that the Polish authorities, the author of the document, had objected to its disclosure, as this would undermine an ongoing decision-making process.
The Ombudsman inquiry team inspected the document at issue and the relevant third party consultations. The Ombudsman noted with regret that the third party consultations at confirmatory stage were only launched five months after the complainant had made his confirmatory application. She also noted that the document at issue had already been inadvertently disclosed by the Commission in reply to the complainant’s initial request. Furthermore, the Ombudsman was not convinced that the objections of the Polish authorities could, at first sight, justify a refusal to disclose the document at issue.
The Ombudsman therefore proposed a solution to the Commission, asking it to review its initial position on the complainant’s public access request with a view to granting the widest possible access to the document at issue.
The Commission did not accept this proposal.
The Ombudsman noted with regret the very poor handling of this case, from the delays incurred to the Commission’s refusal to change its position, despite the unconvincing explanations put forward and the inadvertent disclosure this inquiry brought to light. The Ombudsman thus closed the case, maintaining her view that wider access to the document should have been granted.
Background to the complaint
1. In August 2022, the complainant sent a request for access to documents[1] to the European Commission via the platform ‚FragDenStaat’ The complainant asked for access to emails and other correspondence that the Commissioner for Agriculture and/or his cabinet exchanged with members of the Polish government and with members of the Polish party ‘Prawo i Sprawiedliwość’.
2. The Commission identified 57 documents with 33 annexes as falling within the scope of the complainant’s request. It granted wide partial access to 55 documents and to the 33 annexes. It refused access to two documents in their entirety, namely document 39 and document 54. In doing so, the Commission argued that that the author of the documents had objected to their disclosure. Concerning document 39, the Commission noted that it contained a detailed description of the Polish priorities for the Forest Strategy. As the legislative work for the Strategy’s implementation is still ongoing, Poland objected to grant access because disclosure would seriously undermine this decision-making process[2].
3. The complainant asked the Commission to review its decision to refuse access to document 39 (by making a ‘confirmatory application’). When the Commission failed to reply the complainant turned to the Ombudsman in January 2023.
The Ombudsman’s proposal for a solution
4. The Ombudsman opened an inquiry and asked the Commission to reply to the complainant’s confirmatory application as soon as possible.
5. In the absence of a reply to the complainant’s request, the Ombudsman asked the Commission to provide her with a copy of document 39 and copies of the relevant third party consultations.
6. In accordance with EU case-law[3], the Commission does not have to carry out an exhaustive assessment of the Member State’s objection to disclosure. However, it must check whether the Member State has based its objection on the exceptions in Regulation 1049/2001 and that the explanations given by that Member State appear, prima facie, to be well founded.
7. Having reviewed document 39 and copies of the consultation of the Polish authorities, the Ombudsman was not convinced that the objections of the Polish authorities could, prima facie, justify a refusal to disclose the requested document. She thus made a proposal for a solution[4] that the Commission review its initial position on the complainant’s public access request with a view to granting the widest possible access to document 39.
8. The inspection also showed that the third-party consultation at confirmatory stage was launched only at the end of March 2023, while the complainant had made his confirmatory application in October 2022. The Ombudsman further noted that document 39 had been inadvertently disclosed by the Commission in reply to the complainant’s initial request.
9. The Commission did not accept the Ombudsman’s proposal for a solution and maintained its position that it could not grant wider public access to the opinion.
10. The Commission considered that the Ombudsman’s proposal for a solution assessed whether disclosure would specifically and actually undermine any possibly ongoing decision-making process. However, in accordance with EU case-law, the Commission has to verify only the mere existence of reasons referring to an exception and has to check whether the explanations given by the Member State appear, at first sight, to be well founded. The Commission considered that document 39 reflects Poland’s detailed political positions and negotiating line in the context of the new EU forest strategy for 2030, which had been adopted approximately one month after the receipt of document 39. Disclosure would, in the Commission’s view, compromise Poland’s position in the ongoing legislative deliberations and thereby the integrity of the decision-making process as regards the implementation of the new EU forest strategy for 2030.
11. The complainant chose not to comment on the Ombudsman’s proposal for a solution and the Commission’s reply thereon.
The Ombudsman’s assessment after the proposal for a solution
12. The Ombudsman regrets that the Commission did not accept her proposal for a solution.
13. The Ombudsman maintains her view that the Commission should have granted wider access to the document at issue. She still considers that, at first sight, the arguments given by the Polish authorities to object to the document’s disclosure do not appear to be well founded. The document at issue is not sensitive and does not reveal Poland’s negotiating lines.
14. However, as the Commission has reassessed the matter following the Ombudsman’s solution proposal and has come to the same conclusion as in its confirmatory decision, the Ombudsman sees no useful purpose in continuing this inquiry.
15. The Ombudsman notes with regret the very poor handling of this case, from the delays incurred to the Commission’s refusal to change its position, despite the unconvincing explanations put forward and the inadvertent disclosure this inquiry brought to light.
Conclusion
Based on the inquiry, the Ombudsman closes this case with the following conclusion:
The Ombudsman maintains her view that the Commission should have granted wider access to the document at issue.
As the Commission has reassessed the matter and has come to the same conclusion it adopted in its confirmatory decision, namely that access to the document at issue must be refused in its entirety, the Ombudsman sees no useful purpose in pursuing this inquiry further.
The complainant and the Commission will be informed of this decision.
Emily O'Reilly
European Ombudsman
Strasbourg, 18/12/2023
[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents; https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049
[2] Article 4(3) of Regulation 1049/2001.
[3] See Judgment of the General Court of 14 February 2028 in case T-74/16, Pagpyprios organismos ageladotrofon v Commission, para 57; available at https://curia.europa.eu/juris/document/document.jsf?text=&docid=199205&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=17959245
[4] For further information on the background to the complaint, the parties‘ arguments and the Ombudsman’s inquiry, please refer to the full text of the Ombudsman’s proposal for a solution available at: https://www.ombudsman.europa.eu/solution/178722