Background to the complaint

1. The “EU Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa” (EUTFA) was created in 2015[1]. In 2022, the EUTFA had mobilised almost 456 million EUR for projects in Libya[2].

2. In April 2022, a representative of the European Commission stated[3] in a meeting of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE committee) that the Commission put in place “third party monitoring” of operations in Libya under the EUTFA “with particular attention to ensuring the respect of the Do No Harm policy”. The representative added that “so far, the contractor did not report any violations of the Do No Harm principle directly related to all costs by [the Commission’s] trust fund programmes”[4].

3. In May 2022, the complainant, a journalist, sought public access to documents held by the Commission under the EU legislation on access to documents,[5] including “emails, that reveal the identity of the third party contractor, the scope of the reporting, all financial costs associated to the contract, as well as the report itself”, which the Commission referred to during the LIBE committee meeting mentioned above.

4. In July 2022, the Commission refused access to all six documents it identified as falling within the scope of the request, invoking the protection of the public interest as regards international relations[6] and the protection of an ongoing decision-making process[7].

5. Dissatisfied with the Commission’s refusal to give access to the documents, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’), in August 2022.

6. In October 2023, following the involvement of the Ombudsman[8], the Commission issued its final decision (‘confirmatory decision’). The Commission identified 14 documents and granted partial access to some of them, including the contract putting in place the monitoring and its addenda. In refusing further access, the Commission invoked the protection of the public interest as regards public security[9] and international relations[10], as well as the protection of personal data[11] and the commercial interests of the contractor[12].

7. Dissatisfied with the access received, the complainant turned to the Ombudsman again.

8. The Ombudsman opened an inquiry into the Commission’s refusal to give wider public access to the documents at issue in the complaint.

9. In the course of the inquiry, the Ombudsman inquiry team inspected all the documents identified by the Commission as falling within the scope of the request. This inspection suggested the existence of additional documents potentially falling within the scope of the request, which had not been identified by the Commission. A further inspection was thus carried out on a sample of these documents.

The Ombudsman's recommendation

Scope of the request

10. The Ombudsman considered that it was clear from the initial request and its context that the complainant was seeking access to “the report” to verify the statement made by the Commission in the LIBE committee meeting. The Ombudsman noted that this was made even clearer in the confirmatory application: “My role as a journalist is, in part, to verify the veracity of such statements”. What the complainant was therefore seeking was a report supporting the statement by the Commission that “the contractor didn't report any violations of do no harm principle directly related to all costs by our trust fund programmes”. In other words, the complainant was seeking access to documents containing, notably, the substantive analysis of the contractor on the human rights monitoring it had carried out.

11. The inspection showed that the reports identified by the Commission (to which access was denied) do not include the contractor’s findings. However, the terms of reference (annexed to the contract), which were entirely redacted, refer to three types of report to be issued by the contractor to present its substantive findings. A further inspection of a sample of these reports confirmed that these documents include the substantive analysis and findings of the contractor.

12. As a result, the Ombudsman took the view that the Commission’s assessment of the scope of the request for public access was too narrowly construed and did not lead to the identification of all relevant documents. She made the following recommendation[13]:

The Commission should conduct a new search for documents falling within the scope of the complainant’s access request, and assess whether any such additionally identified documents can be disclosed under Regulation 1049/2001.

13. In reply, the Commission carried out a renewed search for documents and confirmed that the list of documents it identified with its confirmatory decision was complete. The Commission noted that the complainant did not phrase their request as covering any other documents that the third party was bound to draft pursuant to the contract. It considered that such an interpretation was not justified in view of the wording of the complainant’s request.

14. The Commission added that, in the confirmatory application, the complainant did not challenge the completeness of the list of documents nor did they contest the Commission’s interpretation of the scope of the request. The Commission stated that the complainant did not express any dissatisfaction with how the Commission had interpreted the scope of the request in their correspondence with the Commission.

15. The Commission concluded that the interpretation of the scope of the request by the Ombudsman is overly wide. It noted that the complainant remains entitled to submit a new initial application in accordance with Regulation 1049/2001.

16. The complainant, in response, contested the Commission’s understanding of their request. They confirmed that the request aimed at verifying if any of the documents drafted by the third party contractor unequivocally stated that the EU projects funded under the EUTFA have not violated the “Do No Harm principle”.

Access to the identified documents

17.  The inspection showed that several documents, which the Commission identified as falling within the scope of the complainant’s request, including the reports and a manual on human rights monitoring, feature the graphic identity of the contractor which could reveal its identity. The Ombudsman took the view that, given the demonstrated concrete and real risks to the physical integrity of the contractor’s employees and experts on the ground, the non-disclosure of these documents was reasonable.

18. However, not all documents display the contractor’s graphic identity. These include the contract, addenda, the terms of reference and a second manual on human rights monitoring and reporting. Regarding those documents, the Ombudsman did not agree with the Commission that the withheld information was covered by the invoked exceptions in its entirety.

19. Regarding the grant application which the Commission refused to disclose in its entirety, the Ombudsman concluded that at least some elements of this document could be disclosed without revealing commercially sensitive information.

20. The Ombudsman added that when assessing the existence of an overriding public interest in disclosure of the grant application, the Commission failed to take into consideration the public interest in allowing public scrutiny of EU-funded projects and more specifically how their potential human rights impact is monitored. The Ombudsman added that in this specific case, the human rights monitoring concerned EU-funded projects in a country where the EU’s involvement and potential human rights impact had already been the subject matter of public criticism^[14].

21. Overall, the Ombudsman found that the Commission’s refusal to provide wide partial access to the contract, addenda and corresponding terms of reference, as well as the grant application and the second manual on human rights monitoring, constituted maladministration. She made the following recommendation[15]:

The Commission should reassess the contract, addenda, terms of reference and grant application as well as the human rights monitoring and reporting manual[16], with a view to giving increased public access, and taking into account the Ombudsman’s observations set out in this recommendation.

22. In reply, the Commission considered that it had granted the widest possible access at confirmatory stage.

23. In relation to the second manual[17], the Commission reiterated that even partial access would put at risk public security[18], referring to comments sent by the contractor at confirmatory stage[19]. It stated that while limited parts of this document may contain general information or standard knowledge on human rights, these are intertwined with the methodology of the project and guidelines on the activities of the field-based monitor network located in Libya.

24. The Commission added that granting partial access to this document would, in view of its length and structure, constitute a disproportionate administrative burden. In support of this, the Commission referred to a recent judgment of the General Court[20].

25. Regarding the contract, addenda and terms of reference, the Commission considered that the parts that could be disclosed without putting at risk public security are so dispersed and limited that their identification and redaction of the remaining parts warranting protection would constitute a disproportionate administrative burden within the meaning of the case-law mentioned above.

26. Regarding the protection of international relations that the Commission relied on to justify the refusal to grant access to the terms of reference, the Commission clarified that only those parts containing the Commission’s detailed analysis of the political, security and human rights situation in Libya, as opposed to the entire terms of reference, were meant to be covered by this exception. It stated that, in any event, the terms of reference, in their entirety, could not be disclosed without putting at risk public security.

27. The Commission added that it had explained sufficiently in its confirmatory decision why disclosure of these parts would put at risk the international relations of the EU with the Libyan authorities. It referred in that regard to the margin of appreciation EU institutions have when applying this exception.

28. Regarding the grant application, the Commission considered that due to the amount of commercially sensitive information contained therein, the identification and subsequent redaction of those parts would constitute a disproportionate administrative burden. The Commission added that the relevant parts are also covered by the public security exception.

29. The Commission considered that the information disclosed allows the public to know sufficiently where, and for what purpose, funds are spent by the EU in accordance with the Financial Regulation. If the Commission were to follow the reasoning of the Ombudsman, the mere existence of public criticism regarding the Commission’s funding of human rights-related projects or potential allegations of misconduct would deprive the Commission of the possibility to invoke the protection of commercial interests.

30. The Commission concluded that even if there was an overriding public interest in disclosure, the commercially sensitive parts could not be disclosed without putting at risk public security.

31. The complainant, in response, stated that they understood that disclosure of certain parts that would reveal the methodology or locations could place the contractor at risk. However, they questioned the redactions based on the protection of international relations with Libya. They considered in particular that the arguments put forward by the Commission in that regard are not consistent with a statement made by the Commissioner for Home Affairs on 6 July 2023 to the LIBE committee, in which she referred to indications that criminal groups are infiltrating the Libyan coast guards[21].

32. The complainant also insisted that there is a public interest in verifying statements made by the Commission to the European Parliament. They concluded that if the European Commission can make statements in public on topics dealing with human rights without any verification possible, it is a signal that it holds itself above independent scrutiny and accountability.

The Ombudsman's assessment after the recommendation

Scope of the request

33. The Ombudsman notes that the complainant could not know that the reports that had been identified by the Commission as falling within the scope of their request did not include the substantive analysis of the contractor. This is because access to these reports was refused in their entirety and the description of these documents provided by the Commission was quite generic.^[22] The information at the disposal of the complainant, therefore, did not allow them to understand the nature of these reports and thus that more documents should have been identified in response to their request.

34. In addition, the Commission did not attempt to clarify the request with the complainant, nor did it provide any explanations as to the way it understood their request in the initial or confirmatory decision. As a result, the complainant could not contest the way the Commission had interpreted the scope of their request.

35. The Ombudsman insists on her view that the initial request, read in context - a context that was explicit in the request itself - was clear, and that the confirmatory application made its purpose and scope even clearer. 

36. The Commission cannot expect citizens to contest what they cannot know. This is especially important considering that there is a presumption of veracity attached to a statement from an EU institution that no more documents exist. The applicant would have to bring “consistent and relevant” evidence to rebut this presumption successfully^[23].

37. The suggestion of the Commission that the complainant could now submit a new request for access to these documents is not what applicants are entitled to expect from a citizen-friendly administration. This is even more so considering that the complainant’s initial access request was made more than two years ago.

38. In these circumstances, the Ombudsman confirms her finding of maladministration.

Access to the identified documents

39. The Ombudsman remains unconvinced that wider access could not be granted to the documents that the Commission identified as falling within the scope of the request.

40. Regarding the second manual on human rights monitoring[24], having reviewed this document, the Ombudsman is still of the view that this manual is very generic. It is difficult to reconcile its basic content with the concerns raised by the contractor at confirmatory stage that the Commission referred to in its reply.

41. The Ombudsman welcomes the Commission’s clarification that the parts of the terms of reference actually covered by the international relations exception, are more limited than what the confirmatory decision indicated. The Ombudsman however still considers that not all of the parts that include an analysis of the situation in Libya, could be perceived as undue criticism and thus could not be disclosed. This restrictive approach is not fully consistent, as raised by the complainant, with the information shared by the Home Affairs Commissioner with the LIBE committee in July 2023, as referred to above.

42. Regarding the grant application, the Commission added that irrespective of whether there was an overriding public interest in disclosing the commercially sensitive information, the parts concerned would need to remain confidential to protect public security. The Ombudsman notes that the application of the public security exception to these parts is not clear from the confirmatory decision. In any event, the Ombudsman is not convinced that all of the information considered commercially sensitive would need to be kept confidential for public security reasons. 

43. As regards the assessment of an overriding public interest, the Ombudsman reiterates the relevance of the overall context of this case, as described in the recommendation. The concerns expressed by civil society and journalists regarding the funding of EU activities in Libya and the monitoring of human rights in that context are not “general considerations” that can be dismissed as such. It is not clear in what circumstances the Commission would take into account such concerns when assessing the existence of an overriding public interest and this is concerning.

44. Finally, regarding all documents at issue, the Commission contended that granting wider partial access would constitute a disproportionate administrative burden. Concerning the manual, the Commission referred to the length and structure of the document to justify refusing partial access. In relation to the contract, addenda and terms of reference it stated that the parts that could be disclosed would be too limited and dispersed. Regarding the grant application, it referred to the length of the withheld parts and the amount of commercially sensitive information contained therein.

45. In support of its claim, the Commission referred to the judgment of the General Court in case T-205/22[25]. In this case, the General Court ruled that the EU agency concerned was justified in considering that partial disclosure of the requested documents represented a disproportionate administrative burden considering that: (i) almost all of the information they contain was covered by the exceptions relied on (which was not contested by the applicant and thus not examined by the court), and (ii) the information was presented in the form of graphs, maps, geographical coordinates and tables of technical characteristics. Taking this into account, the General Court ruled that the redaction of the information in question would have made the documents produced largely unintelligible[26].

46. The circumstances of the case at hand are very different. The parts of the documents that are not covered by exceptions are far from marginal, the format of the documents does not entail any particular difficulties in carrying out redactions, and the result would be intelligible. Furthermore, the case-law makes it clear that it is only in exceptional circumstances that institutions may derogate from the obligation to grant partial access.[27]

47. In these circumstances, the Ombudsman confirms her finding of maladministration.

48. In addition, when an EU institution cannot grant public access to a document, it should endeavour to provide applicants with the information that is relevant to their requests. This is particularly important, as a matter of good administration, in a situation where the Commission has made a public statement on a matter of public interest that cannot be verified otherwise.

49. The Ombudsman therefore makes a suggestion to the effect that the Commission should provide the complainant with evidence that, to date, the contractor has not reported any violations of the Do No Harm principle directly related to all costs by the EUTFA programmes, as stated by the Commission to the European Parliament’s LIBE committee. This may require the production of a new non-confidential document by the contractor.

Conclusion

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

The Commission’s interpretation of the scope of the request and its refusal to grant wider access to the documents at issue was maladministration.

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

Suggestion for improvement

The Commission should provide the complainant with evidence that, to date, the contractor has not reported any violations of the Do No Harm principle directly related to all costs under the EUTFA programmes.

Emily O'Reilly
European Ombudsman

Strasbourg, 11/10/2024

 

[1] See: https://ec.europa.eu/trustfundforafrica/index_en#:~:text=Our%20mission,contribute%20to%20better%20migration%20management.

[2] See Factsheet (February 2022): https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-03/EUTF_libya_en.pdf.

[3] https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/LIBE/OJ/2022/04-20/1253993EN.pdf ; webstream available at 11:10: https://multimedia.europarl.europa.eu/en/webstreaming/libe-committee-meeting_20220421-0900-COMMITTEE-LIBE.

[4] https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/LIBE/OJ/2022/04-20/1253993EN.pdf ; webstream available at 11:10: https://multimedia.europarl.europa.eu/en/webstreaming/libe-committee-meeting_20220421-0900-COMMITTEE-LIBE.

[5] 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

[6] In accordance with Article 4(1)(a) third indent of Regulation 1049/2001.

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

[8] See case 1996/2022/NH that relates to the delay in the adoption of the confirmatory decision.

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

[10] In accordance with Article 4(1)(a) third indent of Regulation 1049/2001.

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

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

[13] The full text of the recommendation and the assessment that led to it are available at: https://www.ombudsman.europa.eu/en/recommendation/en/182956.

[14] See for example https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal ; See

also open letter from civil society dated 2020 http://www.gisti.org/spip.php?article6388.

[15] The full text of the recommendation and the assessment that led to it are available at: https://www.ombudsman.europa.eu/en/recommendation/en/182956.

[16] Listed as Document 1, 2.1, 3, 3.1, 4 by the Commission in its confirmatory application.

[17] Document 2.1.

[18] In application of Article 4(1)(a) of Regulation 1049/2001.

[19] In application of Article 4(4) of Regulation 1049/2001.

[20] Judgment of the General Court of 24 April 2024, Marie Naass and Sea-Watch eV v. European Border and Coast Guard Agency, T-205/22, paragraph 89, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=F2E517B4AB4893614827BB103829D032?text=&docid=285143&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9806028

[21] https://multimedia.europarl.europa.eu/en/webstreaming/committee-on-civil-liberties-justice-and-home-affairs_20230706-0900-COMMITTEE-LIBE, from 10:50:10 of the web stream.

[22] The documents were described as “HR Monitoring Inception Phase report”, “HR monitoring interim report January 2021” “HR Monitoring interim report December 2021”.

[23] Judgment of the General Court of 25 September 2018, in joined cases T-639/15 to T-666/15 and T-95/16, Psara et al. v European Parliament, paragraphs 33 - 36, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=206663&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5877927.

[24] Document 2.1.

[25] Judgment of the General Court of 24 April 2024, Marie Naass and Sea-Watch eV v. European Border and Coast Guard Agency, T-205/22, paragraph 89, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=F2E517B4AB4893614827BB103829D032?text=&docid=285143&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9806028.

[26] Judgment of the General Court in case T-205/22 referred to above, paragraph 97.

[27] Judgment of the Court of First Instance of 7 February 2002, Kuijer v Council, T-211/00, paragraph 57: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-211/00.