Background to the complaint

1. In April 2024, the complainant - a journalist - made a request for public access[1] to a document held by the European External Action Service (EEAS), namely “the latest audit report and audit opinion of the College of Auditors of the European Peace Facility, as provided in Article 43(4) of the Council Decision 2021/509 establishing the Peace Facility.” On the same day, the complainant submitted another request for public access to the “European Peace Facility valuation methodology for reimbursement of equipment donated to Ukraine”.

2. The European Peace Facility (EPF) is a financial instrument of approximately EUR 17 billion for the period 2021-2027 with the aim of financing peace and security measures in partner countries. It was established by a Council decision in March 2021.[2] The EPF enables Member States to provide support and assistance to over twenty partners around the world, including - for the first time - lethal equipment. The EPF is also the basis for incentivising EU Member States’ military support to Ukraine since its invasion by Russia. The European Peace Facility is an off-budget fund, which means that contributions come from EU Member States directly. A College of Auditors is in charge of the external audit of revenue and expenditure. The auditors are appointed by a special committee based on candidates proposed by the EU Member States.

3. The EEAS identified two documents as falling within the scope of the complainant’s requests:

• the Conceptual framework for financing support to the Ukrainian Armed Forces (document 1);
• the Audit Report of the annual accounts of the European Peace Facility - Assistance Measures - for the financial year 2022 (document 2).

4. The EEAS refused to give public access to document 1 in full, and granted partial access to document 2. In refusing to disclose all of document 1 and parts of document 2, the EEAS relied on the need to protect the public interest as regards defence and military matters, EU international relations, the institution’s decision making process as well as the privacy and integrity of the members of the college of auditors who had signed the audit report. These exceptions are set out in Articles 4(1)(a), 4(1)(b) and 4(3) of Regulation 1049/2001.

5. The complainant subsequently requested a review of the EEAS’s decision (by making a ‘confirmatory application’). The EEAS confirmed its decision not to grant access to document 1, and granted wider partial access to document 2.[3]

6. Dissatisfied with this outcome, the complainant turned to the Ombudsman in June 2024.

The inquiry

7. The Ombudsman opened an inquiry into the complainant’s position that the EEAS was wrong to refuse public access, in full or partially, to the requested documents.

8. In the course of the inquiry, the Ombudsman inquiry team inspected the requested documents and held a meeting[4] with the EEAS to obtain clarifications on the reasons for refusal. The Ombudsman also provided the complainant with an opportunity to comment on the EEAS’s explanations.

Arguments presented to the Ombudsman

9. At initial stage, the EEAS argued that it could not disclose document 1 - the conceptual framework for financing support to the Ukrainian Armed Forces - because it contains information relating to the parameters and pace of EPF reimbursements to the Member States for their military support to the Ukrainian Armed Forces. Disclosure, the EEAS said, would allow third parties to anticipate the pace of EU and EPF support to Ukraine at a time of ongoing conflict. In addition, the EEAS considered that, since the reimbursements were still ongoing, the document contained information on which a final decision had not yet been taken by the EPF, therefore affecting its decision making process.

10. The EEAS refused access to parts of document 2 - the audit report - because it contained information related to Ukraine and to the audit recommendations. It argued that this information related to equipment delivered to Ukraine, disclosure of which could give an indication of the speed at which the Member States reconstitute their military capabilities. Revealing the audit findings about the military weaknesses of Ukraine, the EEAS argued, would undermine the EU’s international relations with it. The EEAS also said that some audit recommendations were still being implemented and could therefore not be disclosed, as the information released could be used by adverse parties to influence and provoke the suspension or termination of EU support under the EPF.

11. In his confirmatory application, the complainant argued that both documents reflect the situation at the time of their drafting two years ago. The situation on the ground has since changed considerably, therefore any information in the documents is likely outdated and contains little military value. He also said that the EEAS had failed to provide evidence that there is a reasonably foreseeable risk that its decision making process would be substantially affected owing to the external pressure by adverse parties seeking to influence or provoke the termination of EPF support measures.[5] He also said that there was an overriding public interest in disclosure of both documents because of the lack of independent scrutiny of public spending for the EPF framework, in particular to verify whether equipment that was reimbursed to Member States had been adequately valued.

12. The EEAS disagreed with the complainant’s argument that the information in the documents was outdated. Document 1, the EEAS explained, contains the methodology for financing support to Ukraine which continues to be applied and could also be replicated and applied in the future. In addition, disclosing information in document 2 on how the EEAS and the Commission plan to implement the audit recommendations could pre-empt the institutions’ decision making process. The EEAS also underlined that EU case law has recognised the wide discretion given to EU institutions when invoking the exceptions of public security, defence, and international relations, as they fall under the category of absolute exceptions.[6] This, the EEAS said, meant that it could not balance these exceptions against an overriding public interest in disclosure.

13. In his complaint to the Ombudsman, the complainant challenged the EEAS’s argument that disclosure would undermine the EU’s international relations with Ukraine. He noted that several Member States (Germany, France and the Netherlands in particular) had already publicly disclosed extensive information about military equipment delivered to Ukraine. He also argued that the pace of reimbursement of military assets was different from the actual deployment of these assets: while the latter may be sensitive information, the former should be disclosed to the public.

14. During the meeting with the Ombudsman inquiry team, the EEAS representatives noted that it is up to each Member State to decide what information it is willing to disclose to the public about the military support it provides. However, this does not mean that the EEAS can disclose similar information on behalf of the EU. The EEAS representatives also provided detailed information on the consequences that disclosure of both the audit recommendations and the relevant EU institutions’ comments on them might have. The EEAS requested that the information remain confidential.

15. In his comments on the meeting report, the complainant argued that the EEAS should have compared the information already available to the public with the information contained in the documents at issue, and only reject disclosure where information that is actually sensitive substantially exceeds that which is already publicly available. He also criticised the use by the EEAS of the argument that some information on the EPF and its workings could potentially be used to spread disinformation, saying it was entirely speculative. Should this excuse become legitimised as a means to reject any request for public access, he argued, that would potentially provide a rationale for withholding access to nearly any document concerning the EU’s relationship with Ukraine. The complainant also contested the EEAS’s explanation that its ongoing decision making process would be undermined by disclosure, saying it was an attempt to forestall public participation in the spending and control of public money.

The Ombudsman's assessment

16. The EU institutions enjoy a wide margin of discretion when determining whether disclosing a document would undermine the protection of the public interests listed in Article 4(1) of Regulation 1049/2001, which include defence and military matters and international relations.[7] As such, the Ombudsman sought to assess if there was a manifest error in the EEAS’s assessment.

17. The Ombudsman inquiry team inspected the requested documents and met with EEAS representatives to obtain additional explanations and concrete examples in order to understand why it could not disclose them. The Ombudsman acknowledges the EEAS’s wish that the information provided during the meeting should remain confidential, and will not make that information public.

18. Based on the additional explanations provided, the Ombudsman finds that it was not manifestly wrong for the EEAS to consider that disclosing the information at issue could undermine the public interests as regards defence and military matters and the EU’s international relations.

19. The Ombudsman understands the argument raised by the complainant that there is a public interest in disclosure of the documents, namely that disclosure is necessary for it to hold the EU and the Member States accountable for their actions. However, as the EEAS correctly argued, the protection of the public interests as regards defence and military matters and the EU’s international relations cannot be overridden by any other public interest under the EU legislation on public access to documents.[8]

20. The complainant brings forward a valid concern when he says that, in future, EU institutions could refuse public access to documents based on the argument that some information could be used to spread disinformation. The Ombudsman notes, however, that in this case the EEAS has provided convincing explanations on how potential disinformation could damage the EU’s interests specifically in the difficult context of the war in Ukraine.

21. The complainant’s argument that the EEAS should have checked for publicly available information against information contained in the documents does not hold. Each Member State is responsible for its own disclosure of the amount of aid to Ukraine. Regulation 1049/2001 applies to documents held by an EU institution or body, not to information available on third-party websites.

22. After having assessed the documents and the EEAS’s arguments, the Ombudsman is satisfied that the decision by the EEAS to refuse public access - in full or in part - to the requested documents does not constitute maladministration.

Conclusion

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

There was no maladministration by the European External Action Service in refusing public access to the documents at issue.

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

 

Emily O'Reilly
European Ombudsman

Strasbourg, 02/10/2024

 

[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] Council Decision (CFSP) 2021/509 of 22 March 2021, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32021D0509

[3] Notably to paragraphs in document 2 related to the audit's recommendations and data on assistance provided to countries not operating in a sensitive context. The EEAS also agreed with the complainant’s argument that the names of the auditors should be made public, and disclosed their names.

[4] The meeting report is available at: https://www.ombudsman.europa.eu/doc/inspection-report/192729

[5] In this regard, the complainant referred to EU case law, in particular the judgment of the General Court of 22 March 2018, Emilio De Capitani v European Parliament, case T-540/15, available at: https://curia.europa.eu/juris/liste.jsf?num=T-540/15

[6] Under Article 4(1)(a) of the Regulation. The EEAS referred to the judgment of the General Court of 7 February 2018, Access Info Europe v European Commission, case T-851/16, paragraph 38, available at: https://curia.europa.eu/juris/liste.jsf?num=T-851/16

[7] See, for example, the judgment of the General Court of 11 July 2018, ClientEarth v European Commission, case T-644/16, available at: https://curia.europa.eu/juris/liste.jsf?num=T-644/16&language=en

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