Background to the complaint

1. Based on the Commission’s replies to several access requests[1] he made in 2023, the complainant was concerned that the Commission systematically fails to keep proper records on high-level meetings with interest representatives.

2. More specifically, the complainant made eight requests for public access to documents related to a number of meetings between either Commissioners/their Cabinet or Directors-General and interest representatives. The complainant had become aware of these meetings because they are recorded on the EU’s Transparency Register[2]. The scope of the access requests included (i) messages exchanged prior to the respective meeting, (ii) preparatory notes, (iii) minutes, (iv) presentations and (v) follow-up communication.

3. The Commission’s replies to the complainant varied as regards the number and kind of documents identified per request. Whilst for some meetings, the Commission held extensive documentation, for other meetings the documentation was more limited and, in some cases, the Commission did not identify any documents. In relation to 15 meetings, the Commission did not identify any minutes drawn up after the respective meeting took place.

4. The complainant took issue with the lack of documents and, in particular, meeting minutes. He doubted that no minutes (or other documents) had been produced in these cases, as he considered that the meetings had been attended by “high ranking members of the Commission” and that the Commission has to register such documentation in its document management system. The complainant therefore challenged that no minutes (or other documents) existed concerning these 15 meetings (by making ‘confirmatory applications’).

5. In reply, the Commission searched its archives again and, based on this, confirmed that it does not hold minutes or similar records in relation to 12 meetings.

6. Dissatisfied, the complainant turned to the Ombudsman on 25 January 2024, raising concerns that the Commission does not systematically document high-level exchanges with interest representatives.

The inquiry

7. The Ombudsman opened an inquiry into the Commission’s alleged failure to ensure proper record keeping in relation to high-level meetings with interest representatives.

8. In the course of the inquiry, the Ombudsman received the Commission’s reply on the complaint. She subsequently asked the complainant for his comments twice but received none. The Ombudsman inquiry team also inspected part of the Commission's files on this case.

Arguments presented to the Ombudsman

By the complainant

9. The complainant contended that the lack of records makes it impossible to understand what was discussed during the high-level meetings at issue and how this (may have) influenced the Commission’s decision-making.

10. The complainant argued that the Commission’s apparent practice was in breach of the European Code of Good Administrative Behaviour[3] that requires[4] civil servants to “keep proper records and welcome public scrutiny of their conduct, including their compliance with these public service principles.”

11. In addition, the complainant considered that this practice would be against the Commission’s own voluntary commitment as laid down in a 2021 ‘Note on its Transparency Policy’[5] that confirms the importance of producing concise minutes of meetings with interest representatives.

12. The complainant also referred to a recent strategic inquiry[6] of the Ombudsman concerning the Commission’s interactions with the tobacco industry. In that case, the Ombudsman found that the Commission had failed to ensure a comprehensive approach across all its departments to transparency of meetings with interest representatives, including by not recording meeting minutes.

By the Commission[7]

On the alleged breach of rules

13. As regards the Ombudsman’s findings in the strategic inquiry referred to by the complainant, the Commission argued that, because there is a specific legal framework[8] that applies to exchanges between public administrations and the tobacco industry, no analogy could be drawn to this case.

14. Concerning the principles of good administration, the Commission contended that, given that the Ombudsman had not based her findings in the aforementioned case on these principles, the complainant’s arguments in this regard were unfounded.

15. Finally, as regards the 2021 ‘Note on its Transparency Policy’, the Commission argued that the recommendations on record keeping made therein did not constitute legally binding obligations.

On its recording policy and practice

16. Referring to EU case law[9] and to the information it had provided in the context of a previous Ombudsman inquiry[10] on public access to text messages, the Commission argued that Regulation 1049/2001 and the related case law do not impose an obligation on EU institutions to draw up minutes of all meetings they hold.

17. Nevertheless, it said, the fact that it had drawn up the 2021 ‘Note on its Transparency Policy’ − recommending that minutes should normally be prepared − illustrates that the Commission “welcomes public scrutiny and strives to uphold an ever-higher level of transparency of its activities in the area of interest representation.”

On the complainant’s access requests

18. The Commission said that, within a period of about two months, the complainant had made 48 requests for public access to documents related to high-level meetings with interest representatives. These requests concerned more than 100 meetings and the Commission had identified (and given wide access to) relevant documents in the majority of cases.

19. As regards the 15 meetings at issue in the complaint, the Commission provided the following information:

• two meetings had in fact not taken place;
• in relation to three meetings, the Commission had identified (and disclosed) minutes in reply to the complainant’s access requests; and
• in relation to three other meetings, the Commission had identified minutes when preparing its reply to the complaint (in this regard, the Commission promised that it would now assess whether these documents can be disclosed to the complainant.).

20. Concerning the remaining seven meetings, the Commission stated that “no documents containing minutes were drawn up ex-post”,  

• either because “detailed information about the intended content of the meetings had been already included in the preparatory documents, whereby that information subsequently turned out to be sufficient to ensure that records of what was ultimately discussed be kept”,
• or because the respective meetings “did not entail an active exchange of views but were merely a platform of in-person presentation by the interest representatives of their positions (...), whereby the relevant information conveyed would have been already contained in other documents related to the meetings.”

21. The Commission also argued that a decision by an EU institution to refrain from drawing up meeting minutes ex-post was not the same as a failure to draw up and retain records of a meeting’s content. Therefore, it argued, it had not acted in an arbitrary or unpredictable manner.

On the monitoring of compliance with its rules

22. The Commission made a general reference to the explanations it had provided in the context of a previous strategic initiative[11] by the Ombudsman on how the Commission makes available information about meetings between Commissioners and interest representatives. In that case, the Commission had, for example, explained that it had taken regular and systematic action to remind Commissioners and their Cabinets of their obligations to publish information on their meetings with interest representatives. This had included a designation, in each Cabinet, of an ethics and transparency contact point who would regularly exchange on the matter.

23. The Commission said that, since the closure of that strategic initiative, the regular meetings of the network of the designated ethics and transparency contact points in the Cabinets of Commissioners had continued. It emphasised that the network had consistently served as an efficient platform to reiterate the importance of compliance with the applicable transparency and ethics rules and to raise awareness in the Cabinets of good administrative practices in these areas.

24. The Commission added that the 2021 ‘Note on its Transparency Policy’ had also been communicated to its network of coordinators for public access to documents.

The Ombudsman's assessment

25. As the Ombudsman found in her previous strategic inquiry[12] concerning interactions with representatives of the tobacco industry, “meaningful record-keeping is a precondition for transparency. If EU institutions are to be accountable for their actions, they first need to keep records of those actions. Only by doing so can such information later be reviewed by individuals or organisations that may seek to hold the institutions to account”.

26. According to two 2014 Commission Decisions[13] on the publication of information on high-level meetings with interest representatives, the Commission shall make public information on all such meetings, including the date and location of the meeting, the Commission participants, the name of the organisation and the subject of the meeting.[14]

27. Whilst these Commission Decisions do not provide for an obligation to draw up meeting minutes, the Commission has since clarified that its Members (and their Cabinets) are required to keep meaningful records of meetings with interest representatives. Such records should include not only the date, location, participants and subject of a meeting, but also the main points raised, possible conclusions and possible next steps. In particular, the Commission’s 2021 ‘Note on its Transparency Policy’[15] reads:

“There is an increased public interest in and scrutiny of relations with interest representatives. Therefore, it is in line with the principle of good public administration to draft concise minutes of these meetings. The minutes should state the date, place and the purpose of the meeting as well as the main points raised, any conclusions and next steps, if applicable. The minutes need to be registered in ARES since these minutes can be the subject of access to documents requests.”

28. This illustrates that the Commission has rules in place to ensure proper record keeping on high-level meetings with interest representatives across its departments. Based on the Commission’s reply to the complaint, it also appears that the Commission regularly raises awareness of these rules internally.

29. Despite this, the complaint seemed to suggest that there is a lack of record keeping by the Commission in relation to high-level meetings with interest representatives. However, the Commission’s reply to the complaint draws a different picture.

30. According to the data provided by the Commission, it has disclosed minutes and other documentation of more than 100 meetings in response to access requests made by the complainant.

31. In addition, concerning the 13 meetings at issue in the complaint (that did indeed take place), it appears that the Commission holds minutes of six meetings. Regarding the remaining seven meetings, whilst the Commission does not hold minutes drawn up subsequent to the respective meeting, the Commission has credibly explained that it does hold other records that document the content of these meetings.

32. In light of the above, and given that the complainant did not provide any further comments on the Commission’s reply, the Ombudsman considers that no further inquiries are justified in this case.

Conclusion

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

There are no further inquiries justified.

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

 

Emily O'Reilly
European Ombudsman

Strasbourg, 20/11/2024

 

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

[2] Available at: https://transparency-register.europa.eu/index_en.

[3] Available at: https://www.ombudsman.europa.eu/en/publication/en/3510.

[4] Principle 5 of the European Code of Good Administrative Behaviour.

[5] The Commission’s ‘Note for the Attention of Heads of Cabinet - Transparency policy, handling of access to documents requests and other transparency related obligations, available at: http://epsvlwp095.ep.parl.union.eu:10000/workingarea/2024/incident/202400204/Background%20documents/Com_Transparency%20Policy.pdf.

[6] Strategic inquiry on the transparency of the European Commission’s interactions with representatives of the tobacco industry (case OI/6/2021/KR): https://www.ombudsman.europa.eu/en/decision/en/179448.

[7] The full version of the Commission’s reply is available at: https://www.ombudsman.europa.eu/doc/correspondence/195787.

[8] The World Health Organisation’s Framework Convention on Tobacco Control: https://fctc.who.int/news-and-resources/publications/i/item/9241591013.

[9] Judgment of the Court of First Instance of 25 April 2007, WWF v Council, T-264/04, paragraphs 61 ff.: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62004TJ0264&qid=1726731427970.

[10] Inquiry into the European Commission's refusal of public access to text messages exchanged between the Commission President and the CEO of a pharmaceutical company on the purchase of a COVID-19 vaccine: https://www.ombudsman.europa.eu/en/case/en/59777. The Commission’s comments in that case are recorded in the following meeting report: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/150175.

[11] Strategic Initiative on how the European Commission makes available information about meetings between commissioners and organisations or self-employed individuals (case SI/8/2021/AMF): https://www.ombudsman.europa.eu/en/case/en/60250. The Commission’s explanations provided in that case are reflected in the closing note: https://www.ombudsman.europa.eu/en/doc/correspondence/en/153542.

[12] Strategic inquiry OI/6/2021/KR (see footnote 6 above).

[13] See: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014D0839 (Commissioners) and https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014D0838 (Directors-General).

[14] Articles 1(1) and 1(2) of the respective decision (see footnote 3 above).

[15] See footnote 5 above.