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Decision on how the European Commission dealt with a request for public access to documents concerning the Dutch national plan under the Recovery and Resilience Facility (409/2023/OAM)
Decision
Case 409/2023/OAM - Opened on Thursday | 16 March 2023 - Decision on Wednesday | 13 November 2024 - Institution concerned European Commission ( Maladministration found ) - Country Netherlands
Complaint submitted
27/02/2023Analysis of the complaint
27/02/2023Inquiry ongoing
16/03/2023Preliminary outcome
24/11/2023Inquiry outcome
13/11/2024
The case concerned a request for public access to documents related to how the European Commission evaluated the Dutch national plan under the Recovery and Resilience Facility. The request was made by a journalist, who was seeking to obtain information about how the national plans had been drawn up and approved. The Commission granted some access, but refused access to 172 documents in their entirety, mainly arguing that their disclosure could undermine the public interest as regards the financial, monetary or economic policy of a Member State, as well as commercial interests and the Commission’s ongoing decision-making process. The complainant asked the Commission to review its decision in October 2022. As the Commission failed to reply within the applicable time limits, the complainant turned to the Ombudsman.
The Ombudsman opened an inquiry in March 2023 and asked the Commission to reply as soon as possible. In the absence of reply, the Ombudsman asked to inspect the documents in July 2023. The case was also included as an example in the Ombudsman’s Special Report to the European Parliament to show the issue of systemic delays in how the Commission handles public access requests.
Based on the inspection, the Ombudsman shared her preliminary assessment with the Commission in November 2023. She was not convinced that the Commission could rely on the relevant exceptions to refuse access to the 172 documents in their entirety. The Ombudsman thus made a proposal for a solution that the Commission review its position with a view to giving the complainant the widest possible access to the documents at issue.
After a delay of 21 months, the Commission replied to the complainant’s request for review in July 2024 and granted wider access to the documents, still refusing access to 43 documents in their entirety. While the Commission accepted most elements set out in the Ombudsman’s proposal for a solution, the Ombudsman considered that further access could have been granted to several documents and regretted that the Commission did not take the opportunity to do so.
The Ombudsman found that the egregious delay of 21 months in replying to the complainant constituted maladministration. She noted that citizens are not given the same leeway as the Commission when disregarding legal time limits. She again urged the Commission to improve its handling of public access requests as a matter of priority, and refers it to the recommendation in her strategic inquiry OI/2/2022/OAM. Above all, the Commission should reflect on the signal it is sending to citizens exercising this fundamental right when it disregards the clear time limits with impunity.
Background to the complaint
1. The Recovery and Resilience Facility (RRF) is an EU funding instrument created to mitigate the economic and social impact of the COVID-19 pandemic. Through the RRF, the European Commission raises funds, by borrowing on the capital markets, which are then made available to Member States to implement reforms and investments.
2. To benefit from support under the RRF, Member States had to submit national Recovery and Resilience Plans (RRPs) to the Commission for endorsement and subsequent approval by the Council of the EU. The RRPs set out the reforms and investments (milestones and targets) to be implemented by the end of 2026. Member States can then request payments upon completion of the milestones and targets.
3. The complainant is a journalist, who sought to obtain insights into how RRPs come about, that is, the process of negotiating and approving RRPs.
4. On 1 June 2022, the complainant asked the Commission, under the EU legislation on public access to documents (Regulation 1049/2001),[1] for “[a]ll documents held by the Commission on the preparation of a recovery and resilience plan of the Netherlands as part of the European Recovery and Resilience Facility (RRF), from 29 January 2022 until 1 June 2022.”
5. On 6 September 2022, the Commission replied to the request. It granted partial access to 23 documents, provided links to public sources for ten further documents and refused access to 172 documents in their entirety.
6. On 8 September 2022, the Commission made public its first assessment of the Dutch RRP. On 29 September 2022, the Commission announced that it had positively assessed a modified version of the Dutch RRP, which is worth EUR 5.4 billion in grants, and issued a proposal for a Council Implementing Decision to endorse this assessment.[2] On 4 October 2022, the Council of the EU adopted the implementing decision.[3]
7. On 3 October 2022, the complainant asked the Commission to review its decision to refuse access (by making a ‘confirmatory application’) to the 172 documents in their entirety (hereafter ‘the documents’).
8. On 27 February 2023, not having received a reply to his confirmatory application, the complainant turned to the Ombudsman.
The inquiry
9. The Ombudsman opened an inquiry into how the Commission handled the complainant’s request for public access. The inquiry was initially focused on securing a final decision on the request.
10. However, in view of the significant delay, the Ombudsman decided to inspect the documents. Following the inspection, the Ombudsman made a proposal for a solution that the Commission grant the widest possible access to the documents at issue.
11. The Commission replied, after a very significant delay, to the complainant’s confirmatory application and, another two months later, to the Ombudsman’s proposal for a solution.
The Ombudsman's proposal for a solution
12. In refusing access at initial stage, the Commission mainly argued that disclosure of the documents would undermine the protection of the public interest as regards the financial, monetary or economic policy of a Member State,[4] commercial interests[5] and the Commission’s ongoing decision-making process.[6]
13. The review of the documents by the Ombudsman inquiry team showed that the documents fall largely into five categories: (i) emails exchanged between the Commission and the Dutch authorities, including (ii) draft chapters of the Dutch RRP and (iii) the Commission’s assessment thereof; (iv) minutes of meetings between the Commission and the Dutch authorities and (v) other documents, for example from the Dutch authorities to substantiate the proposed RRP measures.
14. Based on the inspection of the documents at issue and the documentation pertaining to the consultation of the Dutch authorities (at initial stage), the Ombudsman was not convinced that the Commission could rely on the exceptions invoked to refuse access to the documents in their entirety.
15. In particular, she noted that the Commission had consulted the Dutch authorities on the disclosure of the documents originating from them (the majority of the documents at issue) and that the Dutch authorities had not identified a risk to the financial, monetary or economic policy of the Netherlands arising from the disclosure of 72 documents. The Ombudsman therefore did not understand why the Commission’s assessment differed from that of the Dutch authorities.
16. As for the Commission’s ‘own’ documents, on which the Dutch authorities were not consulted, the Ombudsman took the view that they do not seem to be so sensitive throughout that their (partial) disclosure would undermine the protection of the financial, monetary or economic policy of the Netherlands. She was also not convinced by the Commission’s reliance on the exceptions to protect commercial interests and an ongoing decision-making process.
17. On 14 November 2023, the Ombudsman proposed that the Commission review its position on the access request with a view to giving the complainant the widest possible access to the 172 documents at issue.[7]
18. Following the Ombudsman’s solution proposal, the Commission replied to the complainant’s confirmatory application in July 2024. It gave full access to 76 documents, partial access to 72 documents, and no access to 43 documents.
19. In September 2024, the Commission transmitted its response to the Ombudsman’s proposal for a solution.[8] The Commission did not address the delay in replying to the complainant’s confirmatory application, but referred to “several rounds of consultations” that it conducted at confirmatory stage with the Dutch authorities,[9] as originator of the majority of the documents concerned.
20. The Commission explained that the Netherlands objected to the disclosure of several documents, based on the exceptions for the protection of public interest as regards public security, defence and military matters and the financial, monetary or economic policy of a Member State.[10] The justifications of the Dutch authorities for opposing disclosure revolved “around the domestic security, economic and financial circumstances of the Member State”. The Commission considered the explanations to be sufficiently specific to allow for the application of the respective exceptions to public access. The Commission said that it has “now” followed the views of the Member State based on the consultations at confirmatory stage, and thus the Ombudsman’s relevant arguments set out in the solution proposal became obsolete.
21. As for the Commission’s own documents, the Commission refused access to only one document, while disclosing the remaining ones. For this specific document, it relied on the need to protect its ongoing and closed decision-making.[11] It referred to the context of the decision-making process around the RRF, which does not end with the approval of the RRPs, but continues during the implementation phase. The Commission said the “decision-making process on each milestone and target ends with the adoption of the Commission’s decision authorising the disbursement of the relative financial contribution”. It also referred to the fact that the document contains preliminary opinions which cannot be regarded as positions of the institution, and their disclosure would, amongst others, discourage Commission staff from expressing their views independently in the future.
22. In their comments on the Commission’s confirmatory decision and reply to the solution proposal, the complainant informed the Ombudsman that they no longer believed that the Commission applies exceptions to public access honestly and in the public interest, since it appeared that at initial stage “the Commission broadly used exceptions out of a desire to simply block access”. The complainant was very dissatisfied with the time it took to receive a final decision on their access request.
The Ombudsman's assessment after the proposal for a solution
On the disclosure of the documents
23. The Commission has now provided wider access to the 172 documents at issue in this case.
24. Having reviewed the documents again, along with the Commission’s confirmatory decision and the renewed consultations of the Dutch authorities, the Ombudsman would like to make some observations, in particular in relation to the documents to which no access was provided.
25. At confirmatory stage, the Commission consulted the Dutch authorities on 158 documents. In line with the Dutch authorities’ reply to the consultation, the Commission granted (partial) access to the majority of these documents, while denying full access to 42 (sets of) documents. This was due to objections raised by the Dutch authorities, in order to protect several exceptions under Article 4(1)(a) of Regulation 1049/2001, namely, the public interest as regards the Netherlands’ public security, defence and military matters and financial, monetary or economic policy respectively.
26. EU institutions have a wide margin of discretion when applying the exceptions under Article 4(1)(a) of Regulation 1049/2001.[12] Furthermore, when the requested documents originate from a Member State, which objects to disclosure, EU institutions are not obliged to carry out an exhaustive assessment of the Member State’s objection, but must assess whether the explanations given by the Member State are prima facie well founded.[13] The ultimate responsibility to grant or refuse access lies with the EU institution holding the documents.[14]
27. As regards the 42 documents to which the Commission refused access in full based on the Member State’s objection, the Ombudsman finds that the Commission’s prima facie assessment was not manifestly wrong. That said, the Ombudsman considers that some information contained in the documents does not seem to be sensitive from a security and defence perspective, nor from a financial, monetary or economic perspective.
28. As for the Commission’s own document to which it refused access in full, the Commission invoked the need to protect its decision-making process, ongoing and closed, under Article 4(3) of Regulation 1049/2001. While the Ombudsman is encouraged to see that the Commission withheld only one document under this exception, she considers that the Commission did not sufficiently justify its application.
29. First, the Ombudsman understands that the ongoing decision-making process invoked by the Commission relates to the current implementation of the RRP. However, the Ombudsman has repeatedly noted[15] that a document pertaining to the RRP negotiations, which are now closed, cannot simply ‘transform’ into a document in an ongoing decision-making process relating to the implementation of the RRP.[16] Indeed, the Commission needs to show how precisely the disclosure of such a document could seriously undermine the Commission’s evaluation of the targets and milestones set out in the RRP. In any case, it appears from a review of the document in question that the assessment of the relevant target or milestone was being finalised at the time of the adoption of the confirmatory decision.[17]
30. Second, the Commission referred in its confirmatory decision to the need to protect preliminary opinions for internal use contained in the document.[18] However, the Commission did not demonstrate how precisely the disclosure of these internal opinions would harm the possibility of its staff from expressing views independently in the future. The Commission’s arguments in that regard remained general and vague in nature.
31. In view of the above, the Ombudsman considers that while, overall, the Commission followed her assessment in the solution proposal, further access could have been given to several documents. The fact that the Commission did not do so is regrettable, especially given the Ombudsman’s repeated calls for as much transparency around the RRF as possible. In particular, the Ombudsman already noted that it has been difficult for the public to follow the negotiations on the Member States’ plans.[19]
32. However, as the Commission has just adopted its final position after a two-year delay, pursuing the inquiry would not serve any useful purpose at this stage.
On the delay in the handling of the public access to documents request
33. The Ombudsman is very concerned about the egregious delay incurred by the Commission in replying to the complainant’s confirmatory application in this case.
34. According to Regulation 1049/2001, an EU institution should, within 15 working days from registration of the confirmatory application, either grant access to the documents requested or, in a written reply, state the reasons for the total or partial refusal. The time limit of 15 working days may be extended by a further 15 working days in exceptional circumstances.[20]
35. In this case, it took the Commission 21 months to reply to the complainant’s confirmatory application. More than two years have passed since the complainant submitted their initial request.
36. In this context, the Ombudsman notes that the Commission consulted the Dutch authorities on three occasions at confirmatory stage. It first launched consultations two months after the extended statutory deadline expired. Then, realising that it needed the Dutch authorities’ views on other documents too, it re-consulted them twice, respectively five and 15 months after the statutory deadline expired. The Ombudsman already criticised the Commission for initiating third-party consultations very late in the process and asked for this practice to be improved.[21] She insists that third-party consultations are meant to be finalised within the applicable time limits, not to be initiated once the time limits have expired or so late that the time limits cannot be respected.
37. The delay (and late consultations) are even more worrying given that the Commission had all the elements to grant wider access at initial stage, that is, in September 2022. As pointed out above and in her solution proposal, when the Dutch authorities were consulted at initial stage on the disclosure of the documents originating from them, they did not identify a risk to the financial, monetary or economic policy of the Netherlands arising from the disclosure of 72 documents. It is not clear why the Commission did not give access to at least those documents already at the time.
38. This case clearly shows that, if access is not provided promptly, documents and information sought by requesters can lose relevance. The complainant in this case, a journalist, asked for the documents in June 2022 in order to get an insight into the negotiations on the Dutch RRF plan. While the complainant eventually got wide access to the 172 documents at stake in this inquiry, it is clear that the complainant cannot use the information for the purpose intended, if at all.
39. It is unacceptable for citizens, including journalists who aim to inform the public on matters of public interest, to experience such long delays in obtaining EU documents. The delay incurred by the Commission in replying to the complainant’s confirmatory application constitutes maladministration. The Ombudsman urges the Commission again to improve its handling of public access requests.[22]
Conclusions
Based on the inquiry, the Ombudsman closes this case with the following conclusions:
The Commission has accepted the Ombudsman’s proposal for a solution and provided the complainant with wide access to the requested documents. While the Ombudsman considers that further access could have been possible, it is unlikely that pursuing the inquiry at this stage would lead to a different outcome.
The Ombudsman finds the delay incurred by the Commission in replying to the complainant’s confirmatory application to be maladministration. She urges again the Commission to improve its handling of public access requests.
The complainant and the European Commission will be informed of this decision.
Emily O'Reilly
European Ombudsman
Strasbourg, 13/11/2024
[1] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R1049.
[2] See https://ec.europa.eu/commission/presscorner/detail/en/ip_23_4688.
[3] See at https://www.consilium.europa.eu/en/press/press-releases/2022/10/04/nextgenerationeu-council-gives-go-ahead-to-national-plan-of-the-netherlands/ and https://www.consilium.europa.eu/en/documents-publications/public-register/public-register-search/?WordsInSubject=&WordsInText=&DocumentNumber=12275%2F22&InterinstitutionalFiles=&DocumentDateFrom=&DocumentDateTo=&MeetingDateFrom=&MeetingDateTo=&DocumentLanguage=EN&OrderBy=DOCUMENT_DATE+DESC&ctl00%24ctl00%24cpMain%24cpMain%24btnSubmit.
[4] Article 4(1)(a) fourth indent Regulation 1049/2001.
[5] Article 4(2) first indent Regulation 1049/2001.
[6] Article 4(3) first subparagraph Regulation 1049/2001.
[7] The full text of the Ombudsman’s proposal for a solution is available at: https://www.ombudsman.europa.eu/solution/192665.
[8] The Commission’s reply is available at: https://www.ombudsman.europa.eu/doc/correspondence/192666.
[9] Under Articles 4(4) and 4(5) of Regulation 1049/2001.
[10] First, second and fourth indents of Article 4(1)(a) of Regulation 1049/2001.
[11] First and second subparagraphs of Article 4(3) of Regulation 1049/2001.
[12] See, for example, judgment of the General Court of 11 July 2018 in case T-644/16, ClientEarth v Commission, paras 23-25; 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] Judgment of the General Court of 6 February 2020, Compañía de Tranvías de la Coruña, SA v European Commission, T-485/18, paragraphs 68-70: https://curia.europa.eu/juris/document/document.jsf?text=&docid=223086&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5205467.
[14] Judgment of the General Court of 14 February 2012 in case T-59/09, Germany v Commission, paragraphs 51, 54: https://curia.europa.eu/juris/document/document.jsf?text=&docid=119422&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=517167.
[15] See solution proposal in case 1129/2022/SF, paragraph 23, https://www.ombudsman.europa.eu/en/solution/en/176523 and subsequent closing decision: https://www.ombudsman.europa.eu/en/decision/en/177073.
[16] See in that regard EU case-law concerning the scope of the exception for the protection of an ongoing decision-making process: Judgment of the General Court of 14 September 2022 in joined cases T-371/20 and T-554/20, Pollinis France v Commission, paras 54-60, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=058613B7B5E5818E83EAF7B37A672D10?text=&docid=265442&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=310227 and Opinion of Advocate General of 27 June 2024 in case C‑726/22 P, Commission v Pollinis France, paras 48-51, 58, available at https://curia.europa.eu/juris/document/document.jsf?text=&docid=287628&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=326428.
[17] The first payment request of the Netherlands was assessed in July 2024 and the authorisation of the disbursement of the first instalment was decided in September 2024:https://commission.europa.eu/business-economy-euro/economic-recovery/recovery-and-resilience-facility/country-pages/netherlands-recovery-and-resilience-plan_en#documents.
[18] It is not clear for the Ombudsman why the Commission refers to “documents” in this part of its confirmatory decision, while the refusal concerned only one document.
[19] See SI/6/2021/PVV: https://www.ombudsman.europa.eu/en/doc/correspondence/en/175056.
[20] Article 8 of Regulation 1049/2001.
[21] See in the Ombudsman’s Recommendation on the time the European Commission takes to deal with requests for public access to documents (strategic inquiry OI/2/2022/OAM) https://www.ombudsman.europa.eu/en/recommendation/en/167661.
[22] Same as footnote 21.