Background to the complaint

1. In August 2023, various press outlets reported that the President of the European Commission and her husband visited Crete, where they were hosted at the private house of the Greek Prime Minister.[1]

2. Following these articles, on 12 September 2023, the complainant, then a Member of the European Parliament, wrote to the Commission to express her concerns about the compliance of the trip with applicable ethical standards and its possible impact on the perception of the Commission’s independence, notably as regards its role as ‘Guardian of the Treaties’.[2] She also asked for access to all documents related to the concerns and questions set out in her letter.[3] The Commission registered her request under the reference number EASE 2023/5452.

3. The Commission replied to the complainant’s access request on 6 November 2023, stating that it had not identified any documents falling within its scope. The complainant challenged this absence of documents and asked the Commission to review its decision by making a ‘confirmatory application’ on 23 November 2023.

4. On 14 December 2023, the Commission extended the time limit to process the complainant’s confirmatory application by 15 working days. When the extended time limit to reply expired, that is, on 15 January 2024, the Commission informed the complainant that it would not be able to respect it due to the need to conduct internal consultations.

5. In the absence of a reply, the complainant turned to the Ombudsman on 26 January 2024.

The inquiry

6. The Ombudsman opened an inquiry into how the Commission dealt with the complainant’s access request, including the Commission’s failure to reply within the applicable time limits to the complainant’s confirmatory application.

7. In the course of the inquiry, the Ombudsman asked the Commission to reply to the confirmatory application without undue delay, and not later than 1 March 2024.[4]

8. In April 2024, in view of the persisting delay, the Ombudsman asked that her inquiry team inspect any document(s) the Commission might have identified to date in this case. In May 2024, as no documents had been received, the Ombudsman sent a reminder about her inspection request to the Commission.

9. In July 2024, following further reminders, the Commission informed the Ombudsman’s Office that it had not yet identified any documents concerning the request. Following that update and considering that the confirmatory decision had still not been issued more than six months after the time limit had expired, the Ombudsman shared her preliminary views[5] with the Commission on the case on 2 August 2024. In addition, she asked to inspect the internal consultations and exchanges that had taken place within the Commission related to the public access request.

10. An inspection meeting took place on 9 October 2024,^[6] during which the Ombudsman inquiry team reviewed the internal exchanges requested.

11. Subsequent to that review, the Ombudsman asked to hear a staff member of the Commission involved in the handling of the file.[7] However, as the hearing could not take place by the deadline foreseen and considering the time taken by the Commission in handling this request for public access, the Ombudsman decided not to proceed with the hearing, in order not to delay the inquiry further.

12. In November 2024, the Ombudsman received the Commission’s confirmatory decision on the access request. She also received the complainant’s comments on the inspection meeting report and on the confirmatory decision.

Arguments presented

By the complainant

13. The complainant took issue with the delay of the Commission in replying to her confirmatory application, which she argued violated the time limits set out in Regulation 1049/2001 on public access to documents.[8] Following the adoption of the Commission’s confirmatory decision in November 2024, the complainant said that the significant delay could only be explained by the sensitive political nature of the issue, as it could neither be explained by the number of documents nor by the complexity of the case.

14. As regards the fact that the Commission did not identify any documents relevant to the request, the complainant argued at the initial stage that this was implausible in light of the reply to her concerns received from the Commission President in November 2023. Specifically, the complainant contended that there should be documents that served as preparation or background to the “in-depth discussions” of the President with the Greek Prime Minister, as well as documents pertaining to the logistics and security of the visit. She also emphasised that the concept of document must be interpreted widely and includes digital communications and messages.

15. After having received the Commission’s confirmatory decision, the complainant took note of the absence of documents. In her view, documents concerning logistical and security arrangements should have been kept not solely to allow for public scrutiny but also for audit purposes. The complainant noted that the Commission’s argument that such documents contain only short-lived and ephemeral information echoed the arguments put forward by the Commission in a pending court case concerning text messages exchanged by the President of the Commission.[9] She expressed her concern that, in both cases, the Cabinet of the President did not seem responsive to document searches, as if it was subject to a different set of rules.

16. Overall, the complainant regretted that the Commission had opted for lengthy and costly procedures instead of releasing documents.

By the Commission

17. In the meeting with the Ombudsman inquiry team, the Commission representatives provided background information about the delay in handling the case both at the initial and at the confirmatory stage. As regards the initial stage, they stated that although it was not possible to ascertain precisely why the Commission took time to start handling the request, as the case-handler has since left the Commission, this was likely related to workload. As regards the confirmatory stage, the Commission representatives indicated that the Cabinet of the President was asked to carry out a further search to identify relevant documents shortly after the review process had started. A series of reminders were issued to the Cabinet, but there was no other development until June 2024.

18. As regards the identification of documents, the Commission, in its initial decision on the access request, indicated that no documents falling within the scope of the request could be identified. The Commission confirmed its position at the confirmatory stage, emphasising that documents falling within the scope of the access request would have been registered if they contained important information which is not short-lived or which may involve follow-up by the Commission. Yet, no such documents were identified.

19. Specifically, as regards the two categories of documents mentioned by the complainant, the Commission provided the following explanation as regards why it held no documents pertaining to either categories:

i. Documents serving as preparation or background to the discussions with the Greek Prime Minister: These were informal conversations held in a private setting, which explains why no briefings or other support documents were prepared. Given the private nature of this trip, no minutes or other documents were produced during the trip.

ii. Documents regarding the logistics and security of the visit: Exchanges concerning the preparation of non-official trips by the President, and the resulting security arrangements, are not documents related to policies, activities, or decisions falling within the institution’s sphere of competence. In any event, the documents, whose existence is alleged by the complainant, would contain only short-lived information not involving action or follow-up by the Commission or one of its departments.

The Ombudsman’s assessment

20. On 2 August 2024, the Ombudsman took the preliminary view that the organisation of a visit of the Commission President to the Prime Minister of a Member State would require prior consultations and exchanges within the Commission, as well as between the Commission and third parties. She noted that the Commission itself had informed the complainant that its security directorate had ensured the President’s security during the visit, and that the visit allowed for “in-depth discussions with the Greek Prime Minister”.

21. In view of this, the Ombudsman agreed with the complainant that the Commission’s position that no documents falling within the scope of her request existed was implausible. She invited the Commission to take account of her views when completing the renewed search for documents at confirmatory stage and to grant the widest access possible to all documents that would fall within the scope of the request, without further delay. She also urged the Commission, if it does not identify any document relating to the visit, to explain how that could be the case.

22. In its confirmatory decision, the Commission maintained its position that it does not hold any documents falling within the scope of the complainant’s request.

23. As regards the Commission’s argument that any documents, whose existence is alleged by the complainant, would contain only ‘short-lived information’, the Ombudsman reiterates her longstanding view that Regulation 1049/2001 applies to all documents held by an EU institution, independently of whether or not the document has been registered in the institution’s document management system. In the Ombudsman’s view, the reasoning put forward by the Commission on that specific matter falls short of fulfilling the obligations of transparency applicable to all EU institutions.

24. The Commission also explained in its confirmatory decision that the trip was of a private and non-official nature and that, therefore, the documents sought by the complainant either were never produced, or were not related to the policies, activities, or decisions of the Commission. While the Ombudsman is currently tackling questions related to the nature of the trip in a separate inquiry,[10] for the purposes of this inquiry into public access request she notes that the nature of the trip must have been known from the outset. 

25. However, instead of informing the complainant of the trip’s nature and the consequent absence of certain documents at the time she requested them in September 2023, the Commission kept processing her confirmatory application for almost a year. This delay is not only incomprehensible, it is also in breach of the time limits established by the legislator in Regulation 1049/2001.^[11]

26. The Ombudsman is particularly concerned by the delay incurred by the Commission in identifying documents at the confirmatory stage. The inspection of the internal exchanges demonstrated that this part of the review process played a major role in delaying the overall processing of the confirmatory application. Specifically, Commission services asked the Cabinet of the President to conduct a renewed search for documents shortly after receiving the confirmatory application at the end of 2023. Various reminders were then sent to the Cabinet up to the end of June 2024.

27. The Ombudsman cannot identify any reasonable explanation for this six-month delay in replying to these internal requests. This delay is wholly incompatible with the timeframes set out in Regulation 1049/2001. It is also particularly regrettable in light of the principles set out in the Working Methods of the European Commission, which states that transparency should characterise the work of the Members of the Commission and of their Cabinets, and which emphasises the importance of daily cooperation and mutual assistance between the Cabinets and the services of the Commission.[12]

28. Overall, the Ombudsman finds that the Commission’s handling of the confirmatory application in this case, including the delay in stating that no documents existed, amounts to maladministration. She again urges the Commission to improve its handling of public access requests as a matter of priority, and refers it to her Special Report endorsed by the European Parliament in a unanimous vote in its plenary session on 14 March 2024.

29. Finally, the Ombudsman regrets the multiple delays incurred by the Commission in replying to her own requests during this inquiry.

Conclusion

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

The Commission’s handling of the confirmatory application in this case, including the delay in stating that no documents existed, constitutes maladministration.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 25/11/2024

 

[1] See for instance: https://www.politico.eu/newsletter/brussels-playbook/germany-debates-sending-more-arms-to-ukraine-again/

[2] In particular Articles 2(2), 2(5), 2(6) and 6(5) of the Code of Conduct, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32018D0221(02)

[3] The complainant’s letter covered among others the compliance of the visit with applicable ethical standards, the public perception of the Commission’s impartiality in light of ongoing debates about the application of EU law by the Greek government, possible risks and vulnerability assessments that could have been conducted, the use of Commission resources for the organisation of the trip, and the possible involvement of the Independent Ethical Committee.

[4] Opening letter available at: https://www.ombudsman.europa.eu/en/opening-summary/en/181840

[5] Letter from the European Ombudsman to the European Commission on how it dealt with a request for public access to documents related to a holiday of the Commission President, available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/190963

[6] Meeting report available at : https://www.ombudsman.europa.eu/doc/inspection-report/196164  

[7] In accordance with Article 7 of the Ombudsman Statute, available at: https://www.ombudsman.europa.eu/en/legal-basis/statute/en

[8] Article 8 of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[9] Case T-36/23, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=271989&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2255448

[10] Case 1964/2023/AML, available at: https://www.ombudsman.europa.eu/en/opening-summary/en/176938

[11] According to Article 8 of Regulation 1049/2001, an EU institution should, within 15 working days from registration of the confirmatory application, either grant access to the document 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.

[12] ‘Communication from the President to the Commission: the Working Methods of the European Commission’, P(2019) 2, in particular point V and Annex 2, available at: https://commissioners.ec.europa.eu/document/download/0dbda7ed-b7fb-4d7e-9e62-6c8b0f54be62_en?filename=working-methods.pdf