Background to the complaint

1. On 11 June 2023, the President of the European Commission, along with the Italian and Dutch Prime Ministers, met with the President of Tunisia in Tunis. During this meeting, the President of the Commission stated that she and the two Prime Ministers are working with Tunisia on a “comprehensive package” built on “five pillars” (hereafter ‘the 5-pillar package’)[1]. The five pillars address economic development, investment and trade, energy, migration and people-to-people contacts.  

2. On 13 June 2023, the complainant - the assistant to a Member of the European Parliament - made a request for public access[2] to documents to the Commission, asking for:

· “all documentation that led to the decision to travel to Tunis with a delegation consisting of the President of the European Commission and the Italian and Dutch Prime Ministers”; and,

· “all documentation that led to the comprehensive 5-pillar package that was announced in Tunis by Commission President von der Leyen in Tunis on 11/06/2023”[3].

3. On 16 July 2023, the Commission and the Tunisian authorities signed a Memorandum of Understanding “on a strategic and global partnership between the European Union and Tunisia”[4], formalising the 5-pillar package announced in June.

4. On 29 September 2023, the Commission adopted an initial decision on the complainant’s access request, saying that it does not hold any documents corresponding to the description in the complainant’s request. The complainant did not receive the decision until 24 October 2023, due to technical difficulties he faced on the Commission’s platform dedicated to public access to documents (the ‘EASE portal’)[5].

5. On 25 October 2023, the complainant asked the Commission to review its initial decision, and challenged whether no documents existed, by making a ‘confirmatory application’.

6. On 14 November 2023, the Commission extended the time limit to issue its confirmatory decision.[6]

7. In the absence of a reply, the complainant turned to the Ombudsman in February 2024.

The inquiry

8. The Ombudsman opened an inquiry into how the Commission handled the public access request, focusing on (i) the procedural and technical issues encountered by the complainant, including the delay in handling the request and (ii) the absence of documents identified as falling within the scope of the request.[7]

9.  When opening the inquiry in March 2024, the Ombudsman asked the Commission to reply to the complainant’s confirmatory application without further delay, and not later than 29 March 2024.^[8] She also asked to inspect any document(s) that the Commission may have provisionally identified at confirmatory stage as falling within the scope of the request.

10. In April 2024, the Ombudsman inquiry team met with representatives of the Commission[9]. No documents were shared with the Ombudsman inquiry team prior to or during this meeting.

11. After the Ombudsman reminded the Commission of her inspection request, the Commission provided her in June 2024 with eleven documents provisionally identified as falling within the scope of the request.

12. In July 2024, the Ombudsman shared her preliminary views with the Commission on the basis of the eleven provisionally identified documents. In addition, the Ombudsman considered it necessary to inspect the internal consultations and exchanges on the request within the Commission, as they existed to date.[10]

13. After a further delay, on 9 October 2024,[11] the Ombudsman inquiry team inspected the internal exchanges requested. During this inspection meeting, the Ombudsman inquiry team also received a copy of the confirmatory decision, which the Commission had adopted one day earlier, on 8 October 2024.

14. Following the meeting, the Ombudsman sought a hearing with a staff member of the Commission involved in handling the file.[12] 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. 

Arguments presented

On the identification of documents

15. The complainant argued in his confirmatory application that it is not plausible that the official visit of a delegation consisting of the President of the Commission and the Prime Ministers of two Member States was not coordinated in advance. The complainant added that it is also not plausible that the 5-pillar package, which involves multiple areas of policy and potentially considerable amounts of EU funds, was announced without any preparation, both within the Commission and between the Commission and Member States or the International Monetary Fund. 

16. During the meeting with the Ombudsman inquiry team in April 2024^[13], the Commission representatives stated that the standard procedure for searching for documents was followed at initial stage. The standard procedure involves a search within the Commission’s document management system ‘Ares’, as well as consulting staff members who could be expected to be in possession of the requested documents. In this case, the President’s personal office (cabinet) was consulted.

17. During the second meeting in October 2024, the Commission stated that its Directorate-General for Neighbourhood and Enlargement Negotiations (DG NEAR) was consulted at confirmatory stage, together with the relevant unit in the Secretariat-General for the aspects regarding the involvement of the President, in order to see whether there were any additional documents falling within the scope of the request.

18. The Commission adopted its confirmatory decision on 8 October 2024. It did not provide a separate answer to the Ombudsman’s preliminary views. In the confirmatory decision, the Commission identified thirteen documents as falling within the scope of the request. The list of documents corresponds to what DG NEAR had identified at the initial stage in reply to a parallel public access request in December 2023^[14]. The Commission gave full access to two publicly-available documents and access to parts of two further documents.^[15] It denied access to the remaining documents in their entirety.^[16]

19. The complainant considered that the Commission’s reply to his confirmatory application was unsatisfactory. He reiterated his view that the preparation of a joint working visit of the President of the Commission and such a comprehensive partnership is not possible without prior communication, meetings or written consultation between the Commission and Member States, as well as between the (cabinet of the) Commission President and various Directorates-General. He noted that the commitment of such a significant amount of public funding should also be a reason for the Commission to provide the information necessary to EU citizens to hold the Commission to account. He also pointed to the reply of the Dutch authorities to a request for public access to documents related to the matter[17].

On the delay in replying to the access request

20. The complainant took issue with the delay in handling his access request and the lack of communication by the Commission on the state of play. He contended that there had been excessive delay in breach of the statutory time limits under the EU legislation on public access to documents (Regulation 1049/2001), at both the initial and confirmatory stages. The complainant also pointed to the technical difficulties he faced when using the EASE portal which prevented him from accessing the initial reply for several weeks.

21. During the meeting with the Ombudsman inquiry team in April 2024[18], the Commission acknowledged a problem with the interface between the EASE portal and the Commission’s document registration system ‘Ares’. However, it stated that the issue had been investigated and resolved in the meantime. The Commission representatives also acknowledged that they could have communicated in a more proactive and timely manner with the complainant regarding this technical issue.

22. Regarding the delay in replying to the confirmatory application, the Commission representatives explained during the second meeting with the Ombudsman inquiry team[19] that, at confirmatory stage, the Secretariat-General realised that another public access request, dealt with at initial stage by DG NEAR[20], partially overlapped with this case. This required the two cases to be handled in a coherent manner.

The Ombudsman’s assessment

23. On 16 July 2024, the Ombudsman took the preliminary view that the preparation of the high-level meeting in Tunis and the ensuing 5-pillar package would necessarily have required prior exchanges within the Commission, as well as between the Commission and Member States. However, the eleven documents that the Commission shared with the Ombudsman prior to the adoption of the confirmatory decision in June 2024 did not include any exchanges within the Commission or exchanges with Member States predating the meeting. The Ombudsman emphasised in her preliminary views that whether or not a document has been registered in the institution’s document management system is not decisive in determining whether it falls within the scope of a public access request.^[21]

24. The Ombudsman thus invited the Commission to take account of her views when completing its renewed search for documents at confirmatory stage and to grant the widest access possible to all documents falling within the scope of the request without further delay. She also urged the Commission, if it did not identify any additional documents predating the meeting of 11 June 2023, to explain how that could be the case.

25. The fact that the Commission identified thirteen documents at confirmatory stage is an improvement when compared with its initial reply that it did not hold any documents falling within the scope of the request. However, the outcome of the renewed search at the confirmatory stage is unsatisfactory for several reasons.

26. First, the Commission did not identify any exchanges with Member States that predate the meeting of 11 June 2023. As the Ombudsman pointed out in her preliminary views, it is implausible that no exchanges with the relevant national authorities in the Member States took place prior to the June 2023 meeting in Tunis. Since the Dutch and Italian Prime Ministers also participated in this meeting, there must have been exchanges with these two Member States at the very least.

27. The Ombudsman notes in this regard that, in the documents released by Dutch authorities in response to the public access request mentioned by the complainant[22], references were made to exchanges between the Dutch authorities and the Commission in relation to the meeting in Tunisia in June 2023 and related matters. These documents refer, for example, to a meeting and a phone call between the Commission and the Dutch authorities related to the matter in April 2023.

28. In any event, the confirmatory decision states that the negotiations with Tunisia followed the discussions at the European Council of 9 March 2023, the Foreign Affairs Council of 20 March 2023, and subsequent exchanges in COREPER[23] and other Council formations focussing on migration[24]. There should therefore be documents held by the Commission in relation to these exchanges with the Council, and such exchanges are evidently relevant to the request.

29. Second, the Commission did not identify any internal exchanges between the different departments of the Commission that predate the meeting of 11 June 2023. It remains unclear, for example, which sections within the Commission were consulted on the ‘non-papers’ dating from April 2023[25]. It is implausible that no internal exchanges took place in preparation of the 5 pillar-package.

30. While there is a general presumption that statements made by EU institutions about the non-existence or non-possession of documents are accurate,^[26] this presumption can be rebutted. The above considerations constitute sufficient grounds to call into question that general presumption. However, the Commission did not provide any explanations regarding the absence of documents containing exchanges between the Commission and Member States, or internal exchanges, predating the 11 June 2023 meeting - neither in its confirmatory decision nor in reply to the Ombudsman’s preliminary views.

31. It thus remains unclear whether the non-identification of the above documents is due to the fact that the Commission identified documents that it considered to fall outside the scope of Regulation 1049/2001, whether the Commission failed to draw-up and retain documentation relating to its activities in a non-arbitrary and predictable manner[27]  or whether the result of the search stems from a narrow interpretation of the access request.

32. The Ombudsman’s review of the internal exchanges on the access request did not shed further light on this.

33. It is moreover concerning that, while the Commission’s Secretariat-General, after consulting the Cabinet of the President, did not identify any documents at initial stage^[28], DG NEAR, in response to a very similar request^[29], identified relevant documents - including briefings addressed to the President of the Commission. That these briefings, in particular, were identified only at confirmatory stage in this case is problematic.

34. The Ombudsman is also very concerned about the time the Commission took to reply to the complainant’s access request.

35. According to Regulation 1049/2001, an EU institution should, within 15 working days from registration of the request, either grant access to the requested document or, in a written reply, state the reasons for a (partial) refusal. The time limit of 15 working days may be extended by a further 15 working days in exceptional circumstances^[30]. The same time limits apply at the confirmatory stage^[31].

36. In this case, the Commission failed to take a decision on the complainant’s access request within the time limits established in Regulation 1049/2001. Over the course of the inquiry, the Ombudsman, on numerous occasions, urged the Commission to complete the review process without further delay. In spite of this, it took the Commission almost 12 months to process the complainant’s confirmatory application.

37. The Ombudsman is particularly concerned about the lack of a sense of urgency in handling the public access request, including at the highest levels of the Commission, as reflected in the internal exchanges that her inquiry team inspected.

38. The inspection showed that, at initial stage, the Cabinet of the President took two months to respond to the Secretariat-General as to whether it held any documents falling within the scope of the request. The indicative deadline set by the Secretariat-General to respond was five working days. This delay is 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 departments of the Commission.^[32]

39. At confirmatory stage, the Secretariat-General initiated the internal consultation of DG NEAR more than four months after receiving the confirmatory application, that is, more than two months after the extended time limit to reply to the request had already expired. The existence of the parallel public access case dealt with by DG NEAR at initial stage cannot justify this delay. More than anything, the initial reply in the parallel case should have facilitated and thus accelerated the adoption of a confirmatory decision in this case, as it pointed to documents falling with the scope of the request that were not identified initially.

40. This case therefore exemplifies what the Ombudsman concluded in her own-initiative inquiry into the matter, namely that unless and until the Commission, at the highest levels, demonstrates in practice that transparency is a priority, there will continue to be delays in how it handles requests for public access to documents. The Ombudsman again urges the Commission to improve its handling of public access requests as a matter of priority, and refers to the recommendation in her own-initiative inquiry OI/2/2022/OAM^[33].

41. The scant communication with the complainant in resolving the technical issues he faced with the EASE portal further compounded his negative experience. In that regard, the Ombudsman invites the Commission to improve how it communicates with individuals who face such technical difficulties in the context of their public access requests in the future. The creation of a helpline or a dedicated functional mailbox could facilitate the process of resolving such issues that are bound to happen with any large-scale software application.

42. In light of the above, the Ombudsman finds that how the Commission handled the public access request, including its failure to identify exchanges with Member States and internal exchanges between the different departments of the Commission, along with the fact that the Commission did not provide any reasonable explanation for the non-existence of such documents, constitutes maladministration.

Conclusion

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

There was maladministration by the European Commission in how it handled the public access request, including its failure to identify exchanges with Member States and internal exchanges between the different departments of the Commission predating the meeting in Tunis in June 2023, along with the fact that the Commission did not provide any reasonable explanation for the non-existence of such documents.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 25/11/2024

 

[1] https://ec.europa.eu/commission/presscorner/detail/en/statement_23_3201

[2] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049.

[3] The request specified : “Documentation includes: formal and informal requests by one or several Member States to initiate such a package, communication (texts, whatsapp, email, phone calls, ect) between Commission President von der Leyen and the member states, minutes of meetings within the Commission or between the Council and Commission, documents created during the drafting process. Any potential communication between the Commission and IMF regarding the package is also requested. Timeframe would be: beginning of mandate until now”.

[4] https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3887 ; full text of the Memorandum of Understanding available in French at: https://ec.europa.eu/commission/presscorner/api/files/attachment/875834/Memorandum_d'entente.pdf. 

[5] EASE portal available at: https://ec.europa.eu/transparency/documents-request/home

[6] In application of Article 8(2) of Regulation 1049/2001.

[7] The inquiry did not assess the extent of the access granted at confirmatory stage.

[8] Opening letter available at: https://www.ombudsman.europa.eu/en/opening-summary/en/183115.

[9] Meeting report available at: https://www.ombudsman.europa.eu/doc/inspection-report/196162.

[10] Including all exchanges between the Secretariat-General and other relevant parts of the Commission that were consulted on the access request.

[11] Meeting report available at: https://www.ombudsman.europa.eu/doc/inspection-report/196163.

[12] See Article 7 of Regulation (EU, Euratom) 2021/1163 of the European Parliament of 24 June 2021 laying down the

regulations and general conditions governing the performance of the Ombudsman’s duties.

[13] Meeting report available at: https://www.ombudsman.europa.eu/doc/inspection-report/196162.

[14] https://www.asktheeu.org/en/request/political_agreement_on_a_compreh; see initial decision dated 22 December 2023, available at: https://www.asktheeu.org/en/request/13304/response/51224/attach/6/Reply%20to%20IR%202023%204330.pdf?cookie_passthrough=1 , and list annexed: https://www.asktheeu.org/en/request/13304/response/51224/attach/5/Annex%20I%20List%20of%20documents.pdf?cookie_passthrough=1.

[15] Only redacting personal data.

[16] This inquiry does not cover the extent of the access granted or denied.

[17] https://www.rijksoverheid.nl/documenten/woo-besluiten/2024/04/23/besluit-op-woo-verzoek-over-migratiedeal-tussen-europese-unie-en-tunesie.

[18] Meeting report available at: https://www.ombudsman.europa.eu/doc/inspection-report/196162.

[19] Meeting report available at: https://www.ombudsman.europa.eu/doc/inspection-report/196163.

[20] See footnote 14. Case registered as EASE 2023/4330, available at: https://www.asktheeu.org/en/request/political_agreement_on_a_compreh.

[21] Regulation 1049/2001 defines ‘documents’ as any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, see Article 3(a) of Regulation 1049/2001.

[22] Decision and documents released available at: https://open.overheid.nl/documenten/2a7563e3-6987-4ff8-89f4-05d4e5054932/file.

[23] Committee of the Permanent Representatives of the Governments of the Member States to the European Union, see https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/coreper-i/.

[24] Confirmatory decision, p. 4.

[25] Documents 1, 2 and 3 as numbered in the confirmatory decision.

[26] See judgment of 23 April 2018, Vereine Deutsche Sprache v European Commission, case T-468/16, paragraphs 35-36: https://curia.europa.eu/juris/document/document.jsf?text=&docid=201394&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=6687181

[27] Judgment of the General Court of 20 September 2019 in T‑433/17, Dehousse v. CJEU, EU:T:2019:632, para. 47-48, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=217989&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=692664.

[28] Submitted on 13 June 2023.

[29] Submitted on 24 July 2023.

[30] Article 7 of Regulation 1049/2001.

[31] See Article 8 of Regulation 1049/2001

[32] ‘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.

[33] See decision on the time the European Commission takes to deal with requests for public access to documents (strategic inquiry OI/2/2022/OAM) available at: https://www.ombudsman.europa.eu/en/decision/en/175321 and the Ombudsman’s recommendation on the time the European Commission takes to deal with requests for public access to documents is available at: https://www.ombudsman.europa.eu/en/recommendation/en/167661.