Background to the complaint

1. A core element of the ‘European Green Deal’[1] is the European Commission’s ‘Biodiversity Strategy for 2030’[2]. This strategy entails specific commitments and actions that the Commission intends to deliver by 2030, including launching an EU nature restoration plan. To this end, in June 2022, the Commission adopted a legislative proposal for a ‘Nature Restoration Law’[3] with the goal of a long-term recovery of nature in the EU’s land and sea areas.

2. When preparing the legislative proposal, the Commission conducted a public consultation and a study, and held workshops with stakeholders to gather their input.

3. In January 2024, the complainant made a request[4] for public access to documents to the Commission, seeking access to stakeholder consultations related to the Commission’s drafting of the legislative proposal for a Nature Restoration Law.

4. The Commission identified 27 documents as falling within the scope of the complainant’s access request. It granted the complainant wide access to seven documents, redacting limited personal data. As regards the remaining 20 documents, which contain stakeholder input from Member States and civil society, the Commission refused to give access. In doing so, the Commission relied on the need to protect a decision-making process[5], namely the legislative procedure that was still ongoing at the time. The Commission also concluded that there was no overriding public interest in disclosure.

5. On 4 March 2024, the complainant challenged the non-disclosure of the 20 documents to which the Commission had denied any access (by making a ‘confirmatory application’).

6. The Commission extended the time limit for its reply to 18 April 2024.

7. When the Commission did not reply within the prescribed time-limit (which constitutes an implicit negative decision[6]), the complainant turned to the Ombudsman in April 2024.

The inquiry

8. The Ombudsman opened an inquiry into the Commission’s implicit refusal to grant public access to the 20 documents at issue in the complaint and urged the Commission to adopt an explicit confirmatory decision.

9. In the course of the inquiry, the Ombudsman inquiry team inspected the documents, including those to which the Commission had granted the complainant (wide partial) access. Based on that, the Ombudsman shared the preliminary view[7] with the Commission that the refusal of access to the 20 documents at issue had not been reasonable and, thus, constituted maladministration.

10. On 17 July 2024, the Commission issued a confirmatory decision in which it identified two additional documents. It maintained its view that the documents could not have been disclosed at the time of the adoption of its initial decision, as disclosure would have undermined the then ongoing legislative procedure. However, as the Nature Restoration Law had been adopted in the meantime (on 17 June 2024[8]), the Commission granted wide access to the documents, redacting[9] personal data only.

Arguments presented

11. In its initial decision, the Commission stated that disclosure of the documents at issue would seriously undermine the protection of the decision-making process in relation to the Nature Restoration Law, as it would reveal preliminary views on a legislative process that had not yet been finalised. Specifically, the Commission argued that disclosure would reveal provisional views and policy options that do not reflect the subsequent evolution of the legislative proposal during inter-institutional negotiations. Disclosure could thus give rise to unnecessary misunderstandings.

12. The Commission added that, in its view, there was no overriding public interest in disclosure and that partial access was not possible as the remaining parts − after redacting the documents − would be meaningless.

13. The complainant considered that there was an overriding public interest in disclosure. In the confirmatory application, they argued that disclosure would increase the transparency and openness of the legislative process and ensure accountability of the decision-makers involved. In addition, the complainant noted that the Nature Restoration Law concerned the protection of human health and the environment. Disclosure, they argued, would therefore increase the public acceptance of any measures resulting from the new regulation.

The Ombudsman's preliminary views

14. The Ombudsman noted that all documents at issue in this case had been drawn up or received in the course of the drafting of the legislative proposal for a Nature Restoration Law. Accordingly, they reflect the positions that individual Member States and various civil society actors, including many environmental NGOs, had shared with the Commission on what the (then) envisaged law should encompass as well as other input that these stakeholders had provided. This information had informed the Commission’s decision-making that had led to the adoption of its legislative proposal.

15. The Ombudsman further noted that the Court of Justice had held that legislative documents should, in principle, be disclosed, even at the stage when the adoption of a legislative proposal by the Commission is still uncertain and the related decision-making process ongoing.[10] As a general principle, stakeholders who actively provide input to a decision-making process of a public authority should not be allowed to do so behind closed doors.[11] In this case, the Commission had, at the time of the access request, already adopted its proposal for a Nature Restoration Law, alongside the relevant impact assessment report and related documents.

16. In light of this and based on the review of the documents at issue, the Ombudsman did not consider that these contained particularly sensitive information the disclosure of which could have seriously undermined the legislative procedure. Specifically, the Ombudsman noted that the information in the documents was − to a large extent − rather general in nature and/or had already been made public elsewhere (even if in summarised form or in a different format). For example, some of the Member States concerned had shared their own experience and best practices in relation to their relevant national rules or had asked the Commission for clarifications on its own views. As regards preliminary views and policy options, many of these had been reflected in the Commission’s own impact assessment (that had been published together with the draft legislative proposal) or had been made available elsewhere by their respective authors[12].

17. The Ombudsman therefore took the view that, from the very general reasons for non-disclosure that the Commission had provided in its initial decision, it was not clear how disclosure of any preliminary views and policy options could have led to “unnecessary misunderstandings”. As the EU Courts had held on multiple occasions, the public is perfectly capable of understanding that certain documents are provisional in nature and may thus be subject to change.[13] 

18. In this regard, the Ombudsman also found that it was not readily clear how the withheld information was different from the information the Commission had already published[14], such as the contributions to the public consultation, or the information it had disclosed to the complainant[15], including reports on stakeholder workshops. Notably, all these documents contained provisional views and policy options that may or may not have been reflected in the evolution of the draft regulation during the legislative process.

19. As regards the input from civil society actors, the Ombudsman considered that it could reasonably be assumed that these stakeholders had continued their efforts to lobby for the interests they represent after the Commission had issued its legislative proposal. It was thus very likely that the EU co-legislators had been aware of their views and the policy options they had proposed. The same was true for the views that Member States had shared with the Commission.

20. Therefore, the Ombudsman concluded that the Commission had not demonstrated that disclosure of the documents at issue, at the time of the adoption of the initial decision, would have seriously affected, prolonged or complicated the proper conduct of the legislative procedure. In light of all this and the clear EU case-law on the transparency of legislative documents[16], the Ombudsman took the preliminary view that the Commission’s refusal to give public access to the documents constituted maladministration. She urged the Commission to give wide public access to the documents at issue without further delay, subject only to possible redactions of personal data.

The Commission’s confirmatory decision

21. In July 2024, the Commission adopted an explicit confirmatory decision. It gave wide public access to the documents at issue (as well as to two additional documents identified), redacting personal data only, given that the Nature Restoration Law had been adopted in the meantime.

22. The Commission services maintained their view that the documents could not have been disclosed at the time of the adoption of the initial decision, as disclosure would have undermined the then ongoing legislative procedure. Specifically, they said that the outcome of the legislative procedure had been uncertain as the proposal had been politically controversial and that there had been many misunderstandings and incorrect representations of the content of the proposal which had changed significantly in the course of the inter-institutional negotiations. The Commission added that it had received the access request at a particularly decisive and politically sensitive moment, namely shortly before the European Parliament voted on the compromise text, which had paved the way for the final adoption of the Regulation.

23. As regards the delay in adopting the confirmatory decision, the Commission services stated that 18 out of the 20 documents at issue originated from Member States and other stakeholders. The Commission thus had to consult four Member States and nine third parties on the complainant’s access request.

24. The Commission services also considered that the confirmatory decision, by granting wide public access to the documents at issue, had “effectively addressed the complainant’s concerns.”

25. The complainant welcomed the access granted by the Commission in its confirmatory decision. However, they were greatly dissatisfied with the delay incurred by the Commission in processing their confirmatory application, which, they said, had prevented them from “scrutinising key EU legislation” whilst the legislative procedure was still ongoing.

The Ombudsman's assessment after the adoption of a confirmatory decision

26. The documents at issue in this case were drawn up or received by the Commission in the context of drafting a legislative proposal.

27. One of the core principles of the EU is openness in its decision-making.^[17] Openness facilitates public participation and ensures more accountability of the decision-makers.[18] This is even more important where the decision-making results in new legislation.[19] Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act.^[20]

28. The Commission is “a key player in the legislative process”,[21] as legislative acts are adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. While EU case-law states that the legislative process formally begins with the transmission of the legislative proposal to the co-legislators,[22] the same case-law recognises that documents that form part of the basis of the legislative action are, in view of their purpose, also covered by the definition of “legislative documents” in Regulation 1049/2001.[23] According to the cited case-law, this includes draft impact assessment reports and the Ombudsman considers that the same reasoning can be applied to other documents containing information that constitute important elements of the EU legislative process, such as views shared with the Commission by Member States and other stakeholders. The Ombudsman considers that, in the words of the Court, the disclosure of such information is “likely to increase the transparency and openness of the legislative process as a whole, in particular the preparatory steps of that process, and, thus, to enhance the democratic nature of the European Union by enabling its citizens to scrutinise that information and to attempt to influence that process”.[24]

29. In light of this, the Ombudsman considers that the highest level of transparency must be applied to the documents at issue.[25]

30. This does not mean that the Commission cannot legitimately refuse access in cases like this one. Rather, if the Commission considers that access has to be refused, it must explain how “specifically and actually” disclosure could undermine the interest it is seeking to protect. In addition, the risk that the interest concerned will be undermined must be “reasonably foreseeable and not be purely hypothetical”.[26]

31. As regards the protection of decision-making, EU institutions may refuse public access to a document related to a matter where a decision has not yet been taken only if disclosure would seriously undermine that process and if there is no overriding public interest in disclosure.

32. In refusing access, the Commission invoked the need to protect the (then) ongoing legislative process. It argued that this process had been politically controversial and that there had been misunderstandings and incorrect representations as regards the content of its legislative proposal.

33. As the EU court found, the fact that a legislative proposal is controversial or particularly sensitive, as such, cannot justify the non-disclosure of a specific legislative document.[27] Rather, it is the content of the specific document, to which access is sought, that is decisive for the question of whether access can be granted. 

34. Based on these considerations, it is still not clear to the Ombudsman how “specifically and actually” disclosure of the documents at issue could have affected the legislative process. As noted in the preliminary views shared with the Commission, the information in the documents appears rather general in nature and/or has already been made public elsewhere, including in the Commission’s impact assessment. It is difficult to see how disclosure of this information could have led to misunderstandings about the content of the legislative proposal and that this would have seriously undermined the final steps of the legislative procedure.

35. As the EU Court recalled, the expression by the public or interested parties of their views on the policy options envisaged by the Commission even before specific legislative proposals are announced “is an integral part of the exercise by EU citizens of their democratic rights”.[28]

36. More generally, the Ombudsman takes the view that lobbying is an integral part of the legislative process. Transparency allows the public to participate more effectively in the EU’s legislative process, thereby enhancing its quality and legitimacy. However, 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 and from an early stage, a level-playing field in terms of access to information.

37. This, in turn, means that it is all the more important that requests for public access to legislative documents are dealt with swiftly.

38. In this case, it took the Commission almost six months to provide the complainant with the documents at issue. When the complainant finally received the documents, the Nature Restoration Law had already been adopted. As the Ombudsman has repeatedly stated, access delayed is access denied and this case is another example illustrating how delayed processing of access requests undermines the fundamental right of access.

39. Based on the above, the Ombudsman finds that the Commission was not justified in applying the exception for the protection of an ongoing decision-making process. In light of the applicable rules and the clear case-law that requires EU institutions to apply a particularly high standard of transparency to legislative documents, the Ombudsman considers the Commission’s refusal to grant public access to the documents at issue before the legislative procedure had ended constitutes maladministration.

40. However, as the Commission has now replied to the complainant and has given wide partial access to the documents at issue, the Ombudsman does not consider that making a recommendation would serve any useful purpose. She therefore closes the case.

Conclusion

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

The European Commission’s refusal to grant public access to the documents at issue, even in part, before the final adoption of the ‘Nature Restoration Law’ constituted maladministration.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 01/10/2024

 

[1] For more information, see: https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en.

[2] For more information, see: https://environment.ec.europa.eu/strategy/biodiversity-strategy-2030_en.

[3] See: https://environment.ec.europa.eu/topics/nature-and-biodiversity/nature-restoration-law_en.

[4] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049.

[5] In accordance with Article 4(3), first subparagraph of Regulation 1049/2001.

[6] In accordance with Article 8(3) of Regulation 1049/2001.

[7] The Ombudsman’s letter dated 10 July 2024 is available at the following case page: https://www.ombudsman.europa.eu/doc/preliminary-finding/193311.

[8] https://www.consilium.europa.eu/en/meetings/env/2024/06/17/.

[9] In accordance with Article 4(1)(b) of Regulation 1049/2001.

[10] Judgment of the Court of 4 September 2018, ClientEarth v Commission, C-57/16, paragraph 92: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62016CJ0057&qid=1712587747391.

The Ombudsman took the view that documents containing input that feeds into a legislative proposal constitute important elements of the EU legislative process and should therefore benefit from the wider access granted to legislative documents, see Recommendation on the European Commission’s refusal to give public access to documents concerning its proposal for a regulation to prevent and combat online child sexual abuse (case 2421/2023/MIG), available at: https://www.ombudsman.europa.eu/en/recommendation/en/185538#_ftn18.

[11] This is also reflected in the Commission’s ‘Better Regulation Guidelines’ that set out that relations with stakeholders are governed by four principles, including the principle to “make the consultation process and how it has affected policymaking transparent to those involved and to the general public”: https://commission.europa.eu/system/files/2021-11/swd2021_305_en.pdf (see Chapter II, point 3.).

[12] See, for example, https://www.clientearth.org/media/l05dyfl2/nature-restoration-law_firstanalysis_august2022.pdf.

[13] Judgment of the General Court of 22 March 2018, De Capitani v Parliament, T-540/15, paragraph 120: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62015TJ0540&qid=1712587676840.

[14] Documents 1 to 3.

[15] Documents 4 to 7.

[16] Client Earth v Commission (see footnote 10 above).

[17] Article 15(1) TFEU.

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

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

[20] Judgment of the Court of 1 July 2008, Sweden and Turco v Council, C-39/05 P and C-52/05 P, paragraph 46Ö https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62005CJ0039&qid=1711530564196.

[21]Client Earth v Commission (see footnote 10 above), paragraphs 87 f.

[22] Ibid, paragraph 86.

[23] Ibid, paragraphs 90 to 93.

[24] Emphasis added.

[25] Under the EU Treaties, citizens have the “right to participate in the democratic life of the Union” (Article 10 of the

Treaty on European Union, TEU). Therefore, all EU decisions must be taken “as openly and as closely as possible to

the citizens” (Articles 1 and 10(3) TEU). Under the EU legislation on public access to documents, wider access must be

granted to “legislative documents” (Article 12(2) and Recital 6 of Regulation 1049/2001).

[26] Judgment of the Court of 17 October 2013, Council v Access Info Europe, C-280/11 P, paragraph 31: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62011CJ0280&qid=1711530952210.

[27] See, for example, judgment of the Court of 8 June 2023, Council v Pech, C-408/21 P, paragraph 88:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021CJ0408&qid=1725975655017.

[28] ClientEarth v Commission (see footnote 10 above), paragraph 108.