Background to the complaint

1. In April 2021, the Commission proposed the Artificial Intelligence Act (AI Act)[1], the first comprehensive legal framework on AI worldwide.

2. In April 2023, the complainant, representing a non-governmental organisation, asked the Commission for public access[2] to all documents sent and received by the Directorate-General for Trade (DG TRADE)[3] related to the proposed AI Act since April 2021.

3. In June 2023, in the absence of a reply to their request, the complainant asked the Commission to review its implicit refusal to disclose the documents, by making a ‘confirmatory application’.

4. When the complainant had still not received a reply in August 2023, they turned to the Ombudsman.[4]

5. Later in August 2023, the Commission adopted an initial decision, identifying 14 documents. [5] The Commission provided full access to three documents, and wide partial access to seven documents subject to redactions of personal data.[6]

6. The Commission refused access to two documents in their entirety (4.a and 9.a) and to parts of two documents (10 and 10.a), arguing that disclosure would undermine the protection of the public interest as regards international relations[7] and the protection of privacy and the integrity of the individual.[8] The Commission also said that parts of documents 10 and 10.a fell outside the scope of the request and were thus redacted. The Commission considered that no meaningful partial access to documents 4.a and 9.a was possible.

7. The Commission also informed the complainant that it closed their confirmatory application.

8. In February 2024, dissatisfied with this outcome, the complainant turned again to the Ombudsman.

The inquiry

9. The Ombudsman opened an inquiry into the Commission’s refusal to grant (full) public access to the four documents at issue.

10. In the course of the inquiry, the Ombudsman inquiry team inspected the documents at issue and met with relevant representatives from the Commission to discuss the case. During the meeting, the Commission informed the Ombudsman inquiry team that, given the passage of time and the progress made in sensitive international negotiations, it had decided to provide broader access to the documents at issue. A report on this meeting[9] was shared with the complainant.

11. In September 2024, the Commission adopted a new initial decision and granted wider partial access to the four documents. The complainant expressed their overall satisfaction with this outcome. 

Arguments presented

12. In its first reply to the public access request, the Commission said that, “if disclosed, the related information contained in these documents is likely to affect the Union’s position in international relations, notably its international trade relations with the World Trade Organization (WTO) members with whom the Union is currently negotiating the plurilateral WTO e-commerce rules and partners with whom the Union is negotiating digital trade rules in bilateral trade agreements.”

13. The Commission emphasised that the disclosure of the relevant information would put in the public domain considerations pertaining to a sensitive issue in the international trade context that could benefit the EU negotiating partners to support their interests. Thus, there was a real risk to undermine the capacity of the EU to pursue its specific policy objectives and its position taken in the WTO as well as in the bilateral trade context.

14. The Commission also explained that it was not possible to provide more detailed reasons justifying its refusal to provide access without actually disclosing the substance and the content of the documents.

15. In their complaint to the Ombudsman, the complainant challenged the Commission’s position, arguing, in essence, that it had failed to provide sufficient arguments to justify its position.

16. The complainant considered that the documents should be made publicly available as the public should learn whether and to what extent the EU prioritises trade negotiations over its internal law making, and if and how trade negotiations have detrimental effects to the protection of EU citizens and their rights.

17. During the meeting,[10] the Commission representatives provided further explanations as regards the Commission’s position at the time of the request. Specifically, the Commission assessed the possibility of disclosure whilst avoiding negative effects on the EU’s position in and outcome of highly sensitive international negotiations such as those on the data flow with Japan and on e-commerce within the World Trade Organization (WTO). Given that, in the meantime, the AI Act was adopted and some of the negotiations have been concluded, the Commission reassessed its position and decided to grant wider access to the documents at issue. The Commission representatives also explained in detail how granting full access to the four documents could still harm the EU’s negotiating position in trade matters.[11]

The Ombudsman’s assessment

18. The Ombudsman welcomes that, following the opening of her inquiry, the Commission reassessed its position and provided the complainant with wide partial access to the documents at issue. In withholding some limited parts of the documents, the Commission relied on the need to protect the public interest as regards international relations.

19. The EU institutions enjoy a wide margin of discretion when determining whether disclosing a document would undermine any of the public interests protected under Article 4(1)(a) of Regulation 1049/2001, such as the protection of international relations.[12]

20. Based on the inspection of the documents and the explanations provided during the meeting[13], the Ombudsman finds that there was no manifest error in the Commission’s application of the exception to avoid harm to the EU’s negotiating position in trade matters. She therefore closed the case as settled.

Conclusion

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

The Ombudsman welcomes the European Commission’s decision to provide wide public access to the documents at issue during her inquiry. The case is therefore closed as settled. 

The complainant and the Commission will be informed of this decision. [14]

Rosita Hickey
Director of Inquiries

Strasbourg, 05/11/2024

 

[1] Proposal for a Regulation laying down harmonised rules on artificial intelligence: https://digital-strategy.ec.europa.eu/en/library/proposal-regulation-laying-down-harmonised-rules-artificial-intelligence

[2] 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.

[3] DG TRADE was not the main DG responsible for the file but provided input on the matters coming within its remit. 

[4] Complaint 1505/2023/OAM

[5] Following the Ombudsman’s intervention in case 1505/2023/OAM.

[6] Article 4(1)(b) of Regulation 1049/2001.

[7] Article 4(1)(a), third indent of Regulation 1049/2001.

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

[9] See the meeting report available at: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/194375.

[10] See footnote 9 above.

[11] The Commission considers this information to be confidential. This means that it cannot be shared in line with the Ombudsman’s Statute and Implementing Provisions.

[12] See for example, judgment of the General Court of 11 July 2018 in case T-644/16, ClientEarth v Commission, paragraphs 63 - 44; available at https://curia.europa.eu/juris/document/document.jsf?text=&docid=203913&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=46943.

[13] See footnote 9 and 11 above.

[14] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions