Background to the complaint

1. To reduce greenhouse gas emissions, the EU established a scheme[1] for greenhouse gas emission allowance trading (the ‘European Union Emissions Trading Scheme’ - ‘EU ETS’). The EU ETS aims to support cost-effective emission reductions and to promote low-carbon investments.

2. It is the European Commission’s task to adopt EU-wide and fully harmonised implementing measures to allocate ‘free of charge’ emission allowances. To this end, the Commission has to establish, in advance, sectoral benchmarks using as a starting point the average performance of the 10% most efficient installations in a sector or sub-sector. For this purpose, the EU Member States have to notify[2] to the Commission a list of all installations covered by the EU ETS in their territory and the preliminary amount of free allowances to be allocated to these installations for a given period. These notifications are known as ‘National Implementation Measures’ or ‘NIMs’.

3. In November 2021, the complainant, an environmental organisation, made a request for public access to the Commission[3], asking for:

(i) the (plant or process specific) data obtained under the ETS Directive related to the energy consumption and greenhouse gas emissions of the ceramics industry and on techniques, process, costs, benefits and decarbonisation techniques,

(ii) a list of ceramics installations whose performance was used as a basis for the EU-ETS free allowance benchmark,

(iii) possible exchanges with the Member States in the context of the process of setting the benchmark for the ceramics industry, and

(iv) other documents received from stakeholders in this context (including emails).

4. The Commission identified 24 documents, namely 23 notifications of preliminary NIMs that had been submitted by EU Member States and one position paper on the benchmarks update by a private stakeholder. The Commission gave the complainant full access to the position paper but refused access to the remaining 23 documents. In refusing access, the Commission relied on the need to protect the commercial interests of the ceramics manufacturers concerned.[4] The Commission added that the information contained in these 23 documents was not limited to the ceramics sector, so that large parts of the documents fall outside the scope of the complainant’s access request.

5. In March 2022, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’). Specifically, the complainant challenged the Commission’s refusal to disclose the 23 notifications at issue. In addition, the complainant raised concerns about the Commission’s failure to identify any email exchanges with Member States.

6. In August 2022, the Commission replied, confirming its refusal to give access to the 23 notifications. The Commission also identified an additional document, namely an excel spread sheet containing a list of the 10 % most efficient installations related to four product benchmarks (facing bricks, pavers, roof tiles and spray dried powder). The Commission refused access to this document based on the same exception and explained that there were no further documents falling within the scope of the request. It did not identify any email exchanges with Member States and said that such exchanges concerned technical matters regarding the NIMs that do not meet the registration criteria in its record management policy due to their short-lived nature.

7. Dissatisfied with the Commission’s confirmatory reply, the complainant turned to the Ombudsman on 8 November 2022.

The Ombudsman's proposal for a solution

8. In her proposal for a solution[5], the Ombudsman addressed five issues: (i) the Commission’s statement that large parts of the documents requested fell outside the scope of the complainant’s access request, (ii) the erga omnes effect of Regulation 1049/2001, (iii) the Commission’s justifications to refuse access based on the protection of legitimate commercial interests, (iv) its application of the EU Aarhus Regulation[6] and its analysis regarding the existence of an overriding public interest in disclosure and (v) the lack of identification of any email exchanges with the Member States as falling within the scope of the access request because of the fact that they were not registered. 

9.  On the first three issues, the Ombudsman upheld the Commission’s assessment. First, the Commission’s statement that large parts of the documents are not covered by the complainant’s access request is accurate. Second, access to a document on the basis of Regulation 1049/2001 renders it accessible to the public and applicants cannot validly commit to not further disseminate documents they receive following a public access request. Third, the Ombudsman considered that the Commission had demonstrated, in line with EU case-law, the specific and actual harm to the commercial interests of the companies operating the installations concerned if these documents were to be disclosed.

10. However, on the two remaining issues, the Ombudsman disagreed with the Commission’s assessment.

11. First, the Ombudsman pointed out that it was unclear from the Commission’s confirmatory decision whether the Commission considered that the documents at issue contain information ‘related to emissions into the environment’.[7] In her view, it was hard to see how the total value of CO₂-emissions of each installation, as contained in the requested documents for the years 2014 to 2018, does not constitute information ‘related to emissions into the environment’. Furthermore, while the Ombudsman accepted that some information on CO₂-emissions was already proactively published by the Commission, she found that the documents at stake contain wider and more detailed information on CO₂-emissions than what was published in the EUTL[8] (European Union Transaction Log).   

12. Second, the Ombudsman disagreed with the Commission’s assessment regarding a potential overriding public interest in disclosing the documents concerned. More specifically, the Ombudsman found that the complainant does not pursue a ‘private interest’ when participating - as a non-governmental organisation promoting environmental protection - in the review of guidance documents for the implementation of the Industrial Emissions Directive,[9] as claimed by the Commission. Rather, the Ombudsman concluded that the complainant put forward sufficiently specific circumstances to justify the existence of an overriding public interest in disclosure.  

13. Third, the Ombudsman stressed that the technical character or short-lived nature of email exchanges does not exclude such emails from being ‘documents’ under Regulation 1049/2001. Regardless of the registration of such emails, if emails falling within the scope of the request exist, they must be identified for the purpose of the access request concerned.

14. In light of the above, the Ombudsman proposed that the Commission should:

1) reconsider its assessment of the information contained in the documents at issue, to the extent that they “contain [...] the total amount of CO₂ emitted by a given installation”. If the Commission agrees that information ‘related to emissions into the environment’ is concerned, it should provide access to the relevant parts of the documents, in line with Article 6(1) of the Aarhus Regulation. In the alternative, the Commission should explain, in detail, why this information does not ‘relate to emissions into the environment’.

2) reassess whether there is an overriding public interest in disclosure of the ‘environmental information’ contained in the documents, based on the specific public interest arguments put forward by the complainant, and provide detailed and coherent reasoning for its assessment.

3) reassess whether there are any additional documents falling within the scope of the complainant’s access request, to the extent that they still exist.

15. In reply[10], the Commission took note of the Ombudsman’s arguments and reassessed its confirmatory decision refusing access. While the Commission provided more detailed explanations for its reasoning, it maintained its conclusion that no access could be granted.

16. In their comments[11] on the Commission’s reply to the Ombudsman’s solution proposal, the complainant stated that they are deeply disappointed by the reply of the Commission. They repeated that they disagree with the Commission’s assessment that the documents requested contain commercially sensitive business information, especially given that data on production figures has been published in the past by national and EU bodies. In addition, whilst it is true that some information is proactively published, the complainant sought wider access to more precise information. The complainant also found it hard to see how information on emissions at sub-installation level would not amount to data enabling the public to know what is actually or foreseen to be released into the environment as ceramics manufacturers have to provide precise information at the process level under the Industrial Emissions Directive.

17. Regarding the existence of an overriding public interest, the complainant reiterated their position that public access would enable it “to participate fully and in equality of arms in the review of the CER BREF as the only NGO present in this decision-making process that sets Reference documents that inform legally binding targets”.

18. Finally, the complainant pointed out that they regretted the delayed handling of their public access request rendering the information, if ever disclosed, “virtually useless”.

The Ombudsman's assessment after the proposal for a solution

19. The Ombudsman deeply regrets that the Commission did not grant wider access to the documents concerned. Such wider access should have been granted in light of (i) the nature of the information contained in the documents requested and (ii) the complainant’s demonstration of the existence of an overriding public interest in disclosure.

(i) On the nature of the information contained in the documents requested

20. The Commission provided clarifications as to whether it considers that (parts of) the documents at issue contain information ‘related to emissions into the environment’. To this end, it explained what information is currently published compared to the information contained in the documents at stake. In particular, the Commission noted that the information on CO₂ emissions already available online is not aggregated by companies (combining the data from several installations) but is detailed per installation. In addition, while the NIMs do include the published information per installation, they also specify CO₂ emissions per sub-installation. The Commission stated that it does not consider that such information - CO₂ emissions per sub-installation - ‘relates to emissions into the environment’ within the meaning of the Aarhus Regulation.

21. In light of these clarifications, the Ombudsman disagrees with the Commission’s view that the documents at stake do not contain information ‘related to emissions into the environment’ beyond what is already in the public domain. Indeed, it is hard to conceive that information on emissions per installation qualifies as information ‘related to emissions into the environment’ while information on emissions per sub-installation does not.

22. The split of installations into sub-installations is a “technical separation”, as explained in more detail by the Commission in its reply. It does not affect whether or not the information ‘relates to emissions into the environment’.  

23. As stated in the Commission’s Guidance on determining the allocation at installation level, “[t]he  installation is split into sub-installations to which the different types of benchmarks apply and depending on whether or not their products are deemed to be exposed to a significant risk of carbon leakage”[12]. One installation may thus be split into different sub-installations each corresponding, for example, to the manufacturing of a given ‘product’ (for which a benchmark value was defined[13]). Furthermore, it is clear that there are inherent scientific uncertainties regarding how the split into sub-installations is done and the estimations of the corresponding amount of emissions for each sub-installation[14].

24. However, such uncertainties do not render the occurrence of these emissions merely ‘hypothetical’.[15] If this were the case, it would call into question the quality or reliability of the data relied on to allocate free emission allowances. It is worth noting that Regulation 2019/331 states that “[d]ata provided by industry and collected in accordance with these rules should be as accurate and high quality as possible and reflect the actual operations of installations, and be given due consideration for free allocation.”[16] Therefore, the information on emissions per sub-installation may not reflect actual emissions, but should, at least, reflect foreseeable emissions.

25. In the Rogesa case, on which the Commission relies, the EU General Court assessed whether data on carbon efficiency, that is, CO₂ emissions per tonne manufactured of a given product, qualified as information ‘related to emissions into the environment’. It considered that, as this data does not allow the public to know what is actually released or foreseen to be released into the environment,[17] it is not information ‘related to emissions into the environment’. The Rogesa case, however, did not relate to the allocation of CO₂ emissions per sub-installation. 

26. Following the more detailed explanations of the Commission in its reply to the Ombudsman’s solution proposal, it is now clear that the documents contain not only data on carbon efficiency, at stake in the Rogesa case, but also data on emissions per sub-installation. These data correspond to the amount of CO₂ that is estimated to be released by a sub-installation in absolute terms (i.e. in tonne per year) for the production of a given product or for a given process. The Ombudsman concludes that this information is ‘related to emissions into the environment’ and should thus have been disclosed in line with Article 6(1) of the Aarhus Regulation.

27. The Commission points out that “the documents contain also the publicly available data on the total amount of CO₂ emitted by a given installation”. However, such proactive transparency cannot be taken into account when assessing the Commission’s reply to a public access request. Under Article 6(1) of the Aarhus Regulation, an overriding public interest in disclosure is deemed to exist for information ‘related to emissions into the environment’. Indeed, the Aarhus Convention Compliance Committee has held that a request for a particular document containing environmental information cannot “be refused simply because another document that contains the same environmental information has already been made available to the public”.[18]

(ii) On the existence of an overriding public interest in disclosure

28. Other information contained in the documents at stake may not qualify as information ‘related to emissions into the environment’ in light of the current case-law[19]. However, it still qualifies as ‘environmental information’. Under the Aarhus Regulation, if a document contains such ‘environmental information’, the exceptions provided for in the EU legislation on public access must be interpreted all the more restrictively. A public interest to access ‘environmental information’ is deemed to exist and must also be taken into account when assessing whether there is an overriding public interest in disclosure of the documents requested.

29. In response to the second point raised in the Ombudsman’s proposal for a solution, the Commission maintained its view that the considerations brought forward by the complainant in order to demonstrate the existence of an overriding public interest were of a general nature and could not be equated with the specific circumstances required by the case-law to demonstrate such interest. The Commission confirmed as well that, in its view, the interest expressed by the complainant in obtaining access is of “private nature, in light of the fact that he is referring to the interest of his organisation to participate fully in the review process of the BREF CER, i.e. beyond the ordinary means already at the disposal to these stakeholders to contribute to and influence the decision-making process”.

30. First, the interest of an organisation, which, according to its statutes, is a non-for-profit organisation promoting environmental protection, cannot be described as a ‘private’ interest. The fact that, as a stakeholder involved in the implementation of the Industrial Emissions Directive (and more specifically in the update of the EU Best Available Techniques (BAT) Reference documents for ‘Ceramics Manufacturing’ (CER BREF)), the complainant would have “ordinary means” to contribute, does not mean that they do not need more information to contribute effectively to this decision-making process. Indeed, according to the complainant, they submitted the access request at issue “to participate fully and in equality of arms in the review of the CER BREF as the only NGO present in this decision-making process that sets Reference documents that inform legally binding targets”.

31. The Ombudsman considers it reasonable for the complainant to deem the data collected in the context of the EU ETS relevant to inform the BREF CER and to request the documents concerned to be in a position to advocate for further environmental protection in this specific process. The fact that the Commission proactively publishes some information does not mean that there cannot be an overriding public interest in disclosing more specific information. BREF CER discussions and the setting of relevant benchmarks under the EU ETS are highly technical matters. For an environmental organisation to be able to scrutinise the factual basis of these decisions, information at a sufficiently detailed level is necessary. Providing access to this data would thus prevent an undue asymmetry of technical information between the Commission and industry stakeholders on one side, and non-governmental organisations on the other.

32. The Ombudsman therefore confirms her view that the information contained in the documents at issue is not so sensitive that the interest in its protection outweighs the public interests put forward by the complainant.  

33. Lastly, the Commission clarified that the emails at stake were not considered as falling within the scope of the request as they do not concern the data and information in relation to the best 10% reference plants for deriving the benchmarks relevant for the ceramic sector. The Ombudsman welcomes this clarification because the Commission’s reference to email exchanges in its confirmatory decision[20] raised concerns as to its understanding of what constitutes a ‘document’ under Regulation 1049/2001.

34. In light of the above, the Ombudsman confirms her position that the Commission should have granted significantly wider access to the requested documents. The fact that the Commission rejected the Ombudsman’s solution proposal and maintained the position adopted in its confirmatory decision is particularly worrying in view of the importance of ensuring transparency and participation in environmental decision-making.

35. Recent inquiries, including the case at hand, suggest issues with how the Commission is interpreting the scope of ‘environmental information’ and information ‘related to emissions into the environment’, as set out in the Aarhus Regulation and Aarhus Convention. In view of this, the Ombudsman is currently considering a strategic inquiry into the matter.

36. As regards this specific case, the Ombudsman has asked the Commission to reconsider its position in her proposal for a solution. The Commission reassessed the matter and has regrettably come to the same conclusion it adopted in its confirmatory decision, namely that access to the documents at issue must be refused in their entirety. The Ombudsman sees no useful purpose in pursuing this particular inquiry further and closes it with a finding of maladministration. She will inform the European Parliament’s Committee on the Environment, Public Health and Food Safety about the matter, as well as its Committee on Civil Liberties, Justice and Home Affairs which is dealing with her Special Report on the Commission’s delays in dealing with public access cases.

Conclusion

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

The Ombudsman confirms her position that the Commission should have granted significantly wider access to the requested documents. The fact that the Commission rejected the Ombudsman’s solution proposal and maintained the position adopted in its confirmatory decision is particularly worrying in view of the importance of ensuring transparency and participation in environmental decision-making.

As regards this specific case, the Ombudsman has asked the Commission to reconsider its position in her proposal for a solution. The Commission reassessed the matter and has regrettably come to the same conclusion it adopted in its confirmatory decision, namely that access to the documents at issue must be refused in their entirety. The Ombudsman sees no useful purpose in pursuing this particular inquiry further. She closes it with a finding of maladministration and will bring it to the attention of the European Parliament.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 19/12/2023

 

[1] See Directive 2003/87/EC establishing a system for greenhouse gas emission allowance trading within the Union: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02003L0087-20230605 (latest consolidated version).

[2] Regarding the period 2013 to 2020, in accordance with Article 15 of Commission Decision 2011/278/EU determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32011D0278.

[3] Made 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:32001R1049.

[4] In accordance with Article 4(2), first indent, of Regulation 1049/2001.

[5] The full text of the Ombudsman's proposal for a solution is available at: https://www.ombudsman.europa.eu/solution/179183

[6] Regulation 1367/2006 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: http://data.europa.eu/eli/reg/2006/1367/oj.

[7] Within the meaning of Article 6(1) of the Aarhus Regulation.

[8] See: https://ec.europa.eu/clima/ets/.

[9] Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0075-20110106.

[10] The full text of the Commission’s reply to the proposal for a solution is available at: https://www.ombudsman.europa.eu/doc/correspondence/179181.

[11] The complainant’s comments are available at: https://www.ombudsman.europa.eu/doc/correspondence/179182.

[12] Point 2.1 in Guidance Document n°2 on the harmonised free allocation methodology for the EU ETS post 2020, Guidance on determining the allocation at installation level, 15 February 2019, https://climate.ec.europa.eu/system/files/2019-07/p4_gd2_allocation_methodologies_en.pdf. Following Guidance Document n°2, there are different types of benchmarks/ approaches to calculate the allocation of free allowances to the different sub-installations: the ‘product benchmark’ (for instance ‘roof tiles’), ‘heat benchmark’, ‘fuel benchmark’, and ‘process emissions approach’. See also Annex I of Commission Delegated Regulation (EU) 2019/331 of 19 December 2018 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC, available at https://eur-lex.europa.eu/eli/reg_del/2019/331/oj. 

[13] See Regulation 2019/331, recital 4.

[14] The Ombudsman notes that “the boundaries of a sub-installation are not necessarily defined by boundaries of physical process units. They should be understood as system boundaries of a mass and energy balance for the specific purpose of [Regulation 2019/331].” See Point 3 in Guidance Document n°2.

[15] Judgment of the Court of 23 November 2016, Commission v Stichting Greenpeace Nederland and PAN Europe, C-673/13, paragraphs 71-75: https://curia.europa.eu/juris/document/document.jsf;jsessionid=F44DBB01BED602D7046FB7F7F6175B57?text=&docid=185545&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1505088.

[16] Commission Delegated Regulation (EU) 2019/331 of 19 December 2018 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC, recital 7 (emphasis added): https://eur-lex.europa.eu/eli/reg_del/2019/331/oj.

[17] Judgment of the General Court of 11 July 2018, Rogesa Roheisengesellschaft Saar mbH v Commission, T-643/13, paragraph 103:

https://curia.europa.eu/juris/document/document.jsf?text=&docid=203910&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=4600.

[18] See Aarhus Convention Compliance Committee Findings and recommendations with regard to communication ACCC/C/2014/124 concerning compliance by the Netherlands, paragraph 93, available at: https://unece.org/sites/default/files/2021-10/ece.mp_.pp_.c.1.2021.20_eng.pdf.

[19] Judgment of the General Court of 11 July 2018, Rogesa Roheisengesellschaft Saar mbH v Commission, T-643/13.

[20] “Please note that any email exchanges which took place between the Commission and Member States concerned technical matters aiming at correcting and clarifying the data submitted with the NIMs. Such exchanges are not documents that fulfil the registration criteria, due to their short-lived nature.”