Background to the complaint

1. The Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)[1] aims to improve the protection of human health and the environment from the potential risks of chemicals, while enhancing the competitiveness of the EU chemicals industry. In 2020, the European Commission announced its intention to revise the REACH Regulation.[2]

2. The Regulation on Mercury[3] sets out rules on how mercury is used and treated across its life cycle. In 2023, the Commission proposed to revise the Mercury Regulation.[4]

Request for public access to the REACH-related documents

3. On 25 November 2022, the complainant, a civil society organisation, requested public access[5] to the impact assessments and related opinions of the Regulatory Scrutiny Board (RSB) regarding any envisaged revisions of the REACH Regulation.

4. On 13 January 2023, the Commission granted public access to a heavily redacted version of these documents. In redacting the information, the Commission invoked exceptions under the EU legislation on public access to documents (Regulation 1049/2001), arguing that disclosure would undermine an ongoing decision-making process[6].

5. On 19 January 2023, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’). The extended time limit for the Commission to reply elapsed on 2 March 2023.

6. On 12 June 2023, not having received a reply, the complainant turned to the Ombudsman.

Request for public access to the Mercury Regulation-related documents

7. On 17 January 2023, the complainant requested public access to the impact assessments and related RSB opinions as well as a list and minutes of any ”upstream meetings” held between the RSB and Commission staff regarding the revision of the Mercury Regulation.

8. On 24 February 2023, the Commission refused to disclose the requested documents.

9. On 1 March 2023, the complainant made a confirmatory application. The extended time limit for the Commission to reply elapsed on 18 April 2023.

10. On 12 June 2023, not having received a reply, the complainant turned to the Ombudsman.

The inquiry

11. The Ombudsman opened an inquiry to seek a prompt reply to the complainant’s confirmatory applications. The Ombudsman inquiry team also inspected the documents at issue in order to examine the extent of the public access granted and the specific reasons provided by the Commission to justify the (partial) refusal.

12. In the course of the inquiry, on 5 July 2023, the Commission issued a confirmatory decision on the request for public access concerning the REACH Regulation, maintaining its initial position regarding the need to protect the ongoing decision-making process. Moreover, the Commission argued that disclosure would undermine the protection of commercial interests.[7]

13. On 14 July 2023, the Commission published a revised impact assessment and the related second RSB opinion on the proposed revision of the Mercury Regulation, thereby concluding its decision-making process. On 10 August 2023, the Commission granted public access to the requested documents related to that regulation, that is, an earlier version of the impact assessment, the related opinion of the RSB, and the minutes of an upstream meeting with the exception of personal data.

The Ombudsman’s recommendation

14. Since the complainant had in the meantime obtained access to the Mercury Regulation-related documents, the Ombudsman’s recommendation concerned only the documents related to the revision of the REACH Regulation.

15. In her recommendation, the Ombudsman noted that citizens have the “right to participate in the democratic life of the Union”[8], and that decisions should be taken “as openly and as closely as possible to the citizens”.[9] As the EU legislation on public access to documents[10] and EU case-law[11] make clear, this is particularly important when EU institutions act in their “legislative capacity”.

16. The documents at issue in this inquiry are clearly legislative documents, to which the highest standards of transparency must apply. EU case-law has already established that impact assessment reports and the accompanying RSB opinions constitute important elements of the EU legislative process,[12] and are thus ‘legislative documents’ within the meaning of Article 12(2) of Regulation 1049/2001.[13] In addition, the documents at issue contain ‘environmental information’ within the meaning of the EU Aarhus Regulation, as they concern the study of the impact of different policy options envisaged in respect of environmental matters.[14] Also for this reason the exceptions provided for in the EU legislation on public access should be interpreted restrictively.[15]

17. Having inspected the non-redacted versions of the requested documents, the Ombudsman found that the redacted parts were not particularly sensitive, and constituted ordinary legislative work. The fact that the decision making was ongoing cannot be an argument in itself to refuse disclosure. The EU Courts have held on multiple occasions that the public is perfectly capable of understanding that certain documents are provisional in nature and may thus be subject to change.[16] EU citizens have a democratic right to express their views on the policy options envisaged by the Commission before specific legislative proposals are announced.[17]

18. In addition, the Ombudsman found that, contrary to what is required by case-law, the Commission did not present ‘tangible evidence’ that disclosure of the requested documents would seriously undermine its adoption process of the legislative proposal.[18]

19. The Ombudsman was also not convinced by the Commission’s arguments regarding the need to protect the commercial interests of its contractors who had not yet finalised certain parts of the impact assessment. [19] The Ombudsman recalled the case-law according to which the protection afforded to intellectual property rights does not systematically take precedence over the right of public access to the documents of EU institutions.[20] The Ombudsman considered that the Commission failed to demonstrate how concretely the commercial interests of its contractors would be undermined by disclosure.

20. In view of this, the Ombudsman considered that the Commission’s refusal to give full public access to the legislative documents at issue constituted maladministration. She made the following recommendation:[21]

The European Commission should fully disclose the requested documents concerning the revision of the REACH Regulation without any further delay.

21. In reply, the Commission maintained its position. It argued that the work on the legislative proposal in question was transparent and inclusive. It further argued that ”the risk of external pressure from the media and lobbyists to the decision-making process was serious and foreseeable”, and that there had already been pressure due to leaked information from the draft impact assessment. It also argued that it was not obliged to assess whether the risk of external pressure in this case was exceptional or higher than in other cases.

22. The Commission also argued that, even if the redacted information in the requested documents constituted environmental information, it had already taken into account the restrictive interpretation of the exceptions, in accordance with EU case-law, and had granted the widest possible access to the requested documents.

23. Moreover, the Commission argued that, at the time of the confirmatory decision, it had not yet acquired all intellectual property rights to the studies performed by its contractors. The Commission considered that ”disclosure of the redacted passages based on the non-finalised studies would infringe the copyright of the contractor and therefore undermine their commercial interests by revealing their know-how and methodology” and it would ”expose the European Commission to the risk of litigation”.

24. In the comments on the Commission’s reply, the complainant argued that the Commission failed to take into account EU case-law regarding public access to legislative documents. In particular, the complainant considered that the Commission failed to show that it was unable to prevent the impact of external pressure on its decision making and that the commercial interests of its contractors would be undermined by disclosure of the requested documents.

The Ombudsman's assessment after the recommendation

25. The Ombudsman reiterates her view that the Commission did not provide ‘tangible evidence’ demonstrating a reasonably foreseeable risk that its adoption of this legislative proposal would be substantially affected due to the increased external pressure it claimed would result from further disclosure. The Ombudsman finds no elements that would distinguish this legislative file from any other such file examined by the EU institutions. The Commission based its refusal to grant wider public access to the documents in question on general and unsubstantiated assertions regarding external pressure.

26. The Commission’s position is particularly concerning given the clear case law on public access to legislative documents, in which the courts have already dismissed general arguments, such as those raised by the Commission in this case, to justify non-disclosure. Such general arguments include that the policy file is sensitive,[22] that the requested document has not yet been finalised,[23] that “specific sentences in the redacted parts could be taken out of context”,[24] or that, if released, the document “could give rise to unwanted external pressure”, including from civil society.[25]

27. EU legislative decision-making processes often give rise to significant public interest, including from different interest representatives. As such, the Ombudsman does not question that the Commission is subject to ‘external pressure’ while working on legislative proposals. However, as the EU Courts have held, refusing to grant public access to legislative documents cannot be used as a safeguard by EU institutions when faced with external pressure.[26] More generally, the Ombudsman takes the view that lobbying is an expected aspect of the legislative process. Disclosure would allow the public, including stakeholders and the media, to participate more effectively in the decision-making process, thereby enhancing its quality and legitimacy. For all interests to be in a position to share informed views during ongoing legislative processes, it is of particular importance that there is, to the greatest extent possible, a level-playing field in terms of access to information.

28. The Ombudsman is also not convinced by the arguments of the Commission concerning the intellectual property of its contractors. This intellectual property (“know-how and methodology”) will in any case be revealed once the decision-making process is completed and the impact assessment report published.

29. As regards the Commission’s handling of the request for public access to the Mercury Regulation-related documents, which fell out the scope of the Ombudsman’s recommendation in this case, the Ombudsman reiterates her view that failure to comply with the time limits laid down in the EU legislation on public access to documents cannot be good administrative practice. It is crucial that citizens have timely public access to legislative documents, so that they can exercise their democratic right to influence EU law making.

30. In this case, the Commission granted public access to the requested documents concerning the revision of the Mercury Regulation only after the adoption of its legislative proposal and publication of the final impact assessment report and RSB opinion.

31. Not only did the Commission breach the mandatory time limits laid down by Regulation 1049/2001 for dealing with the public access request, it also breached its duty to ensure that EU citizens obtain public access to legislative documents “in good time, at a point that enables them effectively to make their views known”.[27] Due to the passage of seven months from the initial request, the documents disclosed are no longer of use for the purpose the complainant had intended, that is, to make its views known before the legislative proposal is adopted.

32. As the Ombudsman has already held, when handling requests for public access to legislative documents, the EU institutions must observe the statutory time limits, their duty to handle the requests ‘promptly’, and their duty to provide public access ‘in good time’ to enable applicants to influence the legislative process.[28] This was not the case in how it handled this request.

Conclusion

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

The Ombudsman deeply regrets the Commission’s rejection of her recommendation to grant full public access to legislative documents concerning the revision of the REACH Regulation. The Ombudsman therefore confirms her finding of maladministration.

The delay incurred by the Commission in granting public access to the requested documents concerning the revision of the Mercury Regulation constituted maladministration.

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

 

Emily O'Reilly
European Ombudsman

Strasbourg, 15/03/2024

 

[1] Regulation 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), OJ L 396/1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02006R1907-20140410

[2] https://environment.ec.europa.eu/news/chemicals-commission-seeks-views-revision-reach-eus-chemicals-legislation-2022-01-20_en

[3] Regulation (EU) 2017/852 on mercury, OJ L 137/1, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1531231211865&uri=CELEX:32017R0852

[4] https://environment.ec.europa.eu/topics/chemicals/mercury_en#:~:text=In%20July%202023%20the%20Commission%20adopted%20the%20Delegated%20Regulation%20transposing,lamps%20and%20non%2Delectrical%20equipment

[5] Under Regulation (EC) 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

[6] Article 4(3) of Regulation 1049/2001

[7] Article 4(2) of Regulation 1049/2001

[8] Article 10(3) of the Treaty on European Union (TEU)

[9] Articles 1 and 10(3) TEU

[10] Article 12(2) and Recital 6 of Regulation 1049/2001

[11] See, to that effect, judgments of the Court of Justice of 1 July 2008, Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council, para. 46, https://curia.europa.eu/juris/liste.jsf?num=C-39/05&language=en and of 17 October 2013, Case C-280/11 P, Council v Access Info Europe, para. 33, https://curia.europa.eu/juris/liste.jsf?num=C-280/11&language=EN

[12] Judgment of the Court of Justice of 4 September 2018, Case C-57/16 P, Client Earth v Commission, paragraphs 90-91, https://curia.europa.eu/juris/document/document.jsf;jsessionid=B9F99C57C8DB211068B32EC7E0E0AF0B?text=&docid=205322&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3832024

[13] Case C-57/16 P, Client Earth v Commission, paragraph 93

[14] See a similar assessment in Case C-57/16 P, Client Earth v Commission, paragraphs 97 and 101.

[15] Article 6(1) of Regulation 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 L 264/13, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006R1367.

[16] Judgment of the General Court of 22 March 2018, Case T-540/15, De Capitani v Parliament, paragraph 102. https://curia.europa.eu/juris/document/document.jsf?text=&docid=200551&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=774069.

[17] Case C-57/16 P, Client Earth v Commission, paragraph 108.

[18] Judgment of the General Court of 21 April 2021, Case T-252/19, Pech v Council, paragraph 92, https://curia.europa.eu/juris/document/document.jsf?text=&docid=240171&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1916898

[19] Judgement of the General Court of 5 February 2018, Case T-718/15, PTC Therapeutics International v EMA, paragraphs 64 and 85, https://curia.europa.eu/juris/document/document.jsf?text=&docid=199044&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1918748

[20] Judgement of the General Court of 13 January 2017, Case T-189/14, Deza v ECHA, paragraph 119, https://curia.europa.eu/juris/document/document.jsf?text=&docid=186721&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1918841

[21] The full text of the recommendation is available here: https://www.ombudsman.europa.eu/en/recommendation/en/175628

[22] According to the case law, the political and legal difficulty of the file does not justify, in and of itself, non-disclosure. See Judgment of the General Court of 25 January 2023, Case T-163/21, De Capitani v Council, paragraph 76, https://curia.europa.eu/juris/document/document.jsf?text=&docid=269684&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=809123

[23] According to the case law, the provisional nature of a document is not capable, as such, of demonstrating the risk to the decision-making process. The Commission would have to provide much more specific explanations as to why the release of a provisional document would undermine the decision-making process. See Case C-57/16 P, Client Earth v Commission, paragraph 123

[24] According to the case law, “public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently”. See Case T-163/21, De Capitani v Council , paragraph 79

[25] According to the case law, the Commission would have to establish that external pressure would be such as to impede the Commission’s capacity to resist this pressure or complete the decision-making process in good time. However, the Commission is not bound to maintain dialogue with every stakeholder. See Case C-57/16 P, Client Earth v Commission, paragraph 106-108

[26] Case C-57/16 P, Client Earth v Commission, paragraph 124

[27] Case C-57/16 P, Client Earth v Commission, paragraph 84

[28] Decision on how the European Parliament dealt with a request for public access to a four-column document relating to trilogue negotiations in the adoption of the Digital Markets Act (case 253/2023/MIK), paragraph 25, https://www.ombudsman.europa.eu/en/decision/en/172851.