Background to the complaint

1. As part of the ‘Farm-to-Fork Strategy’, the European Commission announced[1] in 2020 a revision of the EU’s rules on the information provided to consumers[2] (‘FIC Regulation’) with the stated aim of ensuring improved labelling information to enable healthier and more sustainable food choices and tackle food waste.

2. Specifically, the Commission announced that it would propose to

• “introduce harmonised mandatory front-of-pack nutrition labelling and set nutrient profiling criteria to restrict claims made on foods;
• extend mandatory origin or provenance information for certain products;
• revise the rules on date marking (‘use by’ and ‘best before’ dates)” and to
• introduce mandatory indications of the list of ingredients and the nutrition declaration for all alcoholic beverages.”

3. To prepare its legislative proposal, the Commission conducted public consultations and a study, and gathered input from the European Food Safety Authority (EFSA).[3] It then drafted an impact assessment report and met with the Regulatory Scrutiny Board (RSB) that provided its opinion on the draft report. The impact assessment is currently being revised in light of this opinion and, to date, the Commission has not yet adopted a legislative proposal.

4. In August and September 2023, the complainant, the civil society organisation Foodwatch, requested[4] from the Commission public access to “any impact assessments” it had submitted to the RSB, the “conclusions of the assessment” by the RSB, as well as any minutes of related meetings.[5]

5. The Commission identified several documents, namely its draft impact assessment report, the RSB opinion, and minutes of related meetings with the RSB and with third parties. It refused to disclose the impact assessment report, the RSB opinion, and the minutes of the meeting with the RSB, relying, it claimed, on the need to protect its ongoing decision-making.[6]

6. On 27 June 2023 and 14 November 2023, the complainant asked the Commission to review its decisions to refuse access (by making ‘confirmatory applications’).

7. When the Commission did not reply within the prescribed time line (which constitutes an implicit negative decision[7]), the complainant turned to the Ombudsman in November 2023 and January 2024.[8]

The inquiry

8. The Ombudsman opened inquiries into the Commission’s refusal to grant public access to the documents at issue and urged the Commission to adopt explicit confirmatory decisions. The Ombudsman also gave the Commission the opportunity to provide comments but received none.

9. The Ombudsman inquiry team inspected the documents and a solution proposal in case 2374/2023/MIK was subsequently made, asking the Commission to disclose one of the requested documents without delay.[9] In case 177/2024/MIG, the Ombudsman shared the preliminary view[10] with the Commission that the refusal of public access to the documents in their entirety was not justified, referring to her solution proposal in the parallel case.

10. On 22 February and 28 May 2024, the Commission issued confirmatory decisions. It maintained its position that the documents cannot be disclosed as this would undermine its ongoing decision-making, given that the relevant legislative proposal had not yet been adopted. In refusing access to the meeting minutes at issue, the Commission also relied on the need to protect personal data (which the complainant did not challenge).

Arguments presented

11. In its initial decisions, the Commission stated only that the documents at issue concerned a draft impact assessment and, thus, it claimed, an ongoing decision-making process that would be seriously undermined by disclosure. It added that the final version of the impact assessment would be made public, alongside the relevant legislative proposal, once the decision-making was completed.

12. In its confirmatory applications, the complainant argued that the Commission had failed to put forward detailed reasons as to how specifically disclosure would seriously undermine its decision-making. The complainant questioned whether there was such a risk, given that the envisaged revision of the FIC Regulation seemed to have been “withdrawn” from the Commission’s work programme.

13. The complainant also considered that there is an overriding public interest in disclosure. Specifically, the complainant argued that the envisaged legislation “is of fundamental concern to the health of European citizens” and that it was therefore worrying that no proposal had been adopted yet. The complainant also contended that documents released by the Commission in reply to another access request it made[11] seemed to suggest that the decision-making had been influenced by industry. Disclosure of the documents was therefore necessary to ensure that the public interest is taken into account in the process. Finally, the complainant referred to the need to ensure openness of the Commission’s decision-making and to enable the public to participate in the legislative process.

14. In its confirmatory decisions, the Commission stated that its decision-making was still ongoing and that no legislative proposal had been adopted. The draft impact assessment, which had yet to be finalised, contained “all policy options, their possible impacts” (that “vary significantly”), “a comparison of the options, details on a preferred option and the methodology for evaluating impacts.” As regards the RSB opinion and meeting minutes at issue, the Commission noted that the opinions and comments mirrored some of the information in the impact assessment. Accordingly, disclosure of the documents would reveal preliminary views and policy options that were still being considered and on which no political decision had been taken. In addition, the documents “might no longer reflect the current thinking and assessment”. Therefore, disclosure “could lead to unnecessary misunderstandings.”

15. The Commission added that its decision-making required robust evidence and a thorough analysis for which its services needed room for reflection and internal discussion. It indicated that the envisaged legislation was politically sensitive and stated that some fundamental elements, such as cost-benefit estimates, the impact on health, consumer behaviour, competitiveness and small and medium-sized businesses, as well as the preferred package of options were still being considered. The draft impact assessment was therefore likely to undergo substantial amendments. Given the strongly divisive and contradictory opinions that had been expressed so far, disclosure at this stage could lead to increased unwanted external pressure.

16. The Commission did not identify an overriding public interest in disclosure, given that it had conducted a public consultation and extensive consultations with all stakeholders.

17. As regards the meeting minutes at issue, the Commission added that they contained names and initials of non-senior staff members. This information constituted personal data that could be disclosed only if the complainant had put forward a necessity for disclosure in the public interest. This complainant had not in fact done so and was not seeking the release of the personal data.

The Ombudsman's proposal for a solution

18. In a solution proposal in case 2374/2023/MIK, the Ombudsman noted that the requested RSB opinion was a legislative document to which the highest standard of transparency must apply. Legislative documents should, in principle, be disclosed at the stage when the adoption of a legislative proposal by the Commission is still uncertain and the decision-making process is ongoing.

19. The Ombudsman noted that, under well-established case law, the Commission could not refuse public access to legislative documents by invoking merely general considerations, such as the fact that the preparatory work was still ongoing. EU institutions can refuse public access to legislative documents only if they have tangible evidence demonstrating a specific, actual and reasonably foreseeable risk that access to the document would seriously undermine the decision-making process.

20. The Ombudsman considered that the Commission had not provided any such tangible evidence in that case. Based on the inspection of documents, she took the view that the requested document contained standard preparatory work that could be expected in any legislative file.

21. The Ombudsman confirmed this assessment in her preliminary views shared with the Commission in the parallel case 177/2024/MIG.

22. The Commission reiterated its earlier arguments in its reply to the Ombudsman’s solution proposal[12] and preliminary views.

The Ombudsman's assessment

23. The documents at issue in this case were drawn up in the context of drafting a legislative proposal revising the FIC Regulation.

24. One of the core principles of the EU is openness in its decision-making.^[13] Openness facilitates public participation and ensures more accountability of the decision-makers.[14] This is even more important where the decision-making results in new legislation.[15] 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.^[16]

25. The Commission is “a key player in the legislative process”,[17] 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,[18] 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.[19] According to the cited case-law, this includes draft impact assessment reports like the one at issue in this case 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 by the RSB. 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”.[20]

26. In light of this, the Ombudsman considers that the highest level of transparency must be applied to the documents at issue.[21] However, this does not mean that access could not legitimately be refused.

27. Regulation 1049/2001 aims to ensure that the public is granted the widest possible access to EU documents.[22] Thus, generally, the EU institutions have to give access to documents upon request, unless disclosure would undermine one of the interests the legislator deemed worthy of protection.[23] Therefore, if an institution considers that access has to be refused, it has to explain how “specifically and actually” disclosure could undermine any of the protected interests. In addition, the risk that the interest concerned will be undermined must be “reasonably foreseeable and not be purely hypothetical”.[24]

28. As regards their decision-making, EU institutions may refuse public access to a document related to a matter where a decision has not yet been taken, if disclosure would seriously undermine that process unless there is an overriding public interest in disclosure.

29. In refusing access, the Commission invoked the need to protect its ongoing decision-making, namely the “ongoing (...) preparation of a new proposal for a regulation”. It argued that its staff had to be able to gather evidence from a broad range of stakeholders and to explore preliminary options that might not be reflected in the final proposal. It added that it had to protect its staff from external pressure, referring to the divisive and contradictory views expressed thus far and the controversial political debate on the matter.

30. The Ombudsman notes that the fact, in itself, that the legislative proposal has not yet been adopted cannot prevent disclosure of the documents. As the EU Courts have 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.[25] Crucially, the Court of Justice recalled that the expression by the public or interested parties of their views on the policy options envisaged by the Commission before specific legislative proposals are announced “is an integral part of the exercise by EU citizens of their democratic rights”.[26]

31. As regards “room for reflection and internal discussion”, according to EU case-law, the risk of external pressure can constitute a legitimate ground for restricting access to documents related to the decision-making process. However, the reality of such external pressure must be established with certainty and ‘tangible evidence’ must be adduced to show that there is a reasonably foreseeable risk that the decision would be substantially affected owing to that external pressure.[27] The Commission must demonstrate that this pressure and influence would seriously affect, prolong or complicate the proper conduct of the Commission’s decision-making.

32. EU legislative decision-making processes often give rise to significant public interest, including from different interest representatives. As such, the Ombudsman does not doubt that the Commission is regularly subject to ‘external pressure’ while working on legislative proposals. She therefore understands that the Commission may be reluctant to share its preliminary views that may be subject to public criticism and pressure.

33. However, as the Court of Justice held, it is for the Commission to prevent any adverse impact on its decision-making process arising from such external pressure.[28] More generally, the Ombudsman takes the view that ‘lobbying’ that is, the involvement of interest representatives, is an integral part of the legislative process. Transparency allows the public to participate more effectively in the Commission’s decision-making 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, a level-playing field in terms of access to information.

34. Whilst it is clear from publicly available documents[29] that the public has been seeking to inform the Commission’s decision-making as regards the intended revision of the FIC Regulation, the Ombudsman considers that the Commission has not established that disclosure would lead to increased external pressure to which it might be subjected. Nor that this pressure would be such as to risk impeding its capacity to act in a fully independent manner and exclusively in the general interest. The Commission has also not demonstrated that disclosure would seriously affect, or further prolong or complicate the completion of the impact assessment and the adoption of the legislative proposal.

35. As set out in the Ombudsman’s solution proposal of 19 February 2024 and preliminary views of 15 May 2024, general considerations, such as the need to consider different policy options and to preserve “room for reflection and for internal discussion”, apply to any legislative file and they do not illustrate any specific risk that the disclosure of a specific legislative document entails. In fact, it is the very nature of an impact assessment that it presents the different policy options under consideration and it is for this reason that the Court considered that access to such documents must be provided at an early stage, that is, while the related decision-making is still ongoing.

36. In addition, the fact that a planned revision of legislation is controversial or particularly sensitive, cannot as such justify the non-disclosure of a specific legislative document.[30] 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. 

37. What is more, as the review of the documents at issue showed, as in the case of any impact assessment, the draft impact assessment report at issue does not exclusively consist of policy options and preliminary views. In addition, as regards such content, the Ombudsman notes that the Commission has already published important information such as the intended elements it seeks to revise in the current legislation, a summary of the replies it received to the public consultations it conducted and two ‘Inception Impact Assessments’.[31] Whilst the publicly available information might be less detailed than the report at issue, the fact that significant elements, such as many of the available policy options, are already in the public domain increases the doubts as regards the implications that the Commission fears disclosure of the impact assessment would have.

38. Concerning the meeting minutes at issue, the review showed that they contain indeed very limited elements as regards the possible substantive content of the envisaged legislative proposal. 

39. Based on the above, the Ombudsman finds that the Commission was not justified in applying the exception for the protection of its ongoing decision-making, and certainly not to the documents in their entirety. In light of 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, even in part, constitutes maladministration.

40. As the Commission is unlikely to change its position at this stage, the Ombudsman refrains from making a recommendation. The Ombudsman is reviewing more generally how the Commission, Council and Parliament apply exceptions to public access to legislative documents, such as the documents at issue in the present case, in the context of her own-initiative inquiry into this important matter.[32]

Conclusion

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

The European Commission’s refusal to grant public access to the documents at issue, even in part, constituted maladministration.

The Commission should in the future give full effect to the relevant case law of the Court of Justice of the EU by ensuring timely access to legislative documents. The Ombudsman will follow up on this matter in her ongoing inquiry (OI/4/2023/MIK) into public access to legislative documents.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 03/10/2024

 

[1] https://food.ec.europa.eu/safety/labelling-and-nutrition/food-information-consumers-legislation_en

[2] Regulation 1169/2011 on the provision of food information to consumers: http://data.europa.eu/eli/reg/2011/1169/2018-01-01.

[3] https://food.ec.europa.eu/safety/labelling-and-nutrition/food-information-consumers-legislation/proposal-revision-regulation-fic_en#

[4] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: http://data.europa.eu/eli/reg/2001/1049/oj.

[5] The access request was made via the online platform AskTheEU and is available at: https://www.asktheeu.org/fr/request/impact_assessment_and_rsb_opinio#incoming-50179.

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

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

[8] The complainant previously requested access to the related RSB opinion. Following the Commission’s refusal to give access, the complainant turned to the Ombudsman (inquiry: 2347/2023/MIK): https://www.ombudsman.europa.eu/en/case/en/65397.

[9] The Ombudsman’s solution proposal dated 19 February 2024 is available at the following case page: https://www.ombudsman.europa.eu/solution/192668.

[10] The Ombudsman’s letter dated 15 May 2024 is available at the following case page: https://www.ombudsman.europa.eu/doc/preliminary-finding/192669.

[11] See: https://www.asktheeu.org/en/request/documents_and_decisions_followin#outgoing-26605.

[12] The Commission’s reply to the Ombudsman’s proposal for a solution is available at the following case page: https://www.ombudsman.europa.eu/doc/correspondence/192730.

[13] Article 15(1) TFEU.

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

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

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

[17]Judgment of the Court of 4 September 2018, ClientEarth v Commission, C-57/16, paragraphs 87 f.:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62016CJ0057&qid=1712587747391.

[18] Ibid, paragraph 86.

[19] Ibid, paragraphs 90 to 93.

[20] Emphasis added.

[21] 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).

[22] Article 1(a) of Regulation 1049/2001.

[23] In accordance with Article 4 of Regulation 1049/2001.

[24] 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.

[25] 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.

[26] ClientEarth v Commission (see footnote 17 above), paragraph 108.

[27]Judgment of the General Court of 21 April 2021, Pech v Council, T-252/19, 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.

[28] ClientEarth v Commission (see footnote 17 above), paragraph 124.

[29] For example, the documents disclosed to the complainant in reply to another request for public access to documents, see footnote 11.

[30] See, for example, judgment of the Court of 8 June 2023, Council v Pech, C-408/21 P, paragraph 88: https://curia.europa.eu/juris/document/document.jsf?text=&docid=274436&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=4725359.

[31] See footnote 3.

[32] How the European Parliament, the Council of the EU and the European Commission deal with requests for public access to legislative documents (case OI/4/2023/MIK): https://www.ombudsman.europa.eu/en/case/en/64321.