Background to the complaint

1. In 2015, the European Commission established the “European Union Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa” (EUTFA)[1]. The overall objective of the EUTFA is to support stability in three regions of Africa, and to contribute to better migration management and address the root causes of destabilisation, forced displacement and irregular migration[2].

2. The EUTFA[3] finances hundreds of programmes in the Sahel and Lake Chad region[4]. In Senegal, it includes ten programmes[5], one of which is entitled “Support programme to strengthen the civil status information system and create a national biometric identity file”[6].

3. In December 2022, the complainant submitted a request for public access[7] to the Commission regarding this programme[8]. After some exchanges with the complainant to clarify which project in particular the complainant was interested in, the Commission issued its initial reply in March 2023.

4. The Commission identified 33 documents as falling within the scope of the request. It provided full access to six documents, partial access to 13 documents and refused access to the remaining 13 documents in their entirety. The Commission also provided the link to one publicly available document. To justify the refusal to grant further access, the Commission invoked the protection of personal data[9] and commercial interests[10].

5. The complainant however could not read the documents in the format they were provided and therefore asked the Commission to solve this technical issue. This was resolved following the involvement of the Ombudsman, in April 2023[11]. In the meantime, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’) on 29 March 2023. The Commission acknowledged receipt of the confirmatory application on 3 May 2023.

6. The Commission extended the time-limit to reply to the confirmatory application to 19 June 2023[12]. In the absence of a reply to her confirmatory application, the complainant turned to the Ombudsman in July 2023.

The inquiry

7. 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.

8. However, in light of the persisting delay, the Ombudsman inquiry team inspected four documents that were of particular interest to the complainant, as mentioned in her confirmatory application. Following a review of the documents, in February 2024, the Ombudsman made a proposal for a solution that the Commission grant the widest possible access to the documents at issue.

9. 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.

10. The complainant submitted comments on the Ombudsman’s solution proposal, as well as on the Commission’s reply and confirmatory decision.

The Ombudsman's proposal for a solution

11. The solution proposal[13] focused on four documents, that is, two narrative reports, a third party financial audit report and a financial report from the contractor.

12. Regarding the narrative reports, the inspection showed that the contractor had explicitly agreed to the future publication of the second narrative report, while it objected to the publication of the first. It was neither evident from the explanations provided by the contractor, nor from a review of the content of the reports, how the disclosure of the information described as commercially sensitive in the Commission’s initial reply would put the contractor at a disadvantage when applying for future projects.

13. In addition, information about the project and included in the narrative reports appeared to have already been made public in an “Action Document” published by the Commission in March 2023[14]. This concerned in particular the descriptions of the contract, the activities planned, an indicative budget, and anticipated risks. Therefore, the Ombudsman concluded that at least partial access to the narrative reports should be possible without putting at risk the legitimate commercial interests of the contractor.

14. Regarding the financial and audit reports, the Ombudsman noted that they include detailed information on costs incurred by the contractor. That said, the aggregated financial information contained in these reports, such as the main budget lines for actual expenditure, was unlikely to reveal the cost structure of the contractor. The Ombudsman also noted that the publicly available “Action Document” mentioned above includes an indicative budget structured by results and activities planned[15]. The Ombudsman therefore considered that those parts of the information included in the financial reports that follow this structure appear less sensitive.

15. In February 2024, the Ombudsman proposed that the Commission review its initial position on the complainant’s public access request with a view to granting the widest possible access to the documents requested.

16. Following the Ombudsman’s solution proposal, the Commission issued its reply to the complainant’s confirmatory application in September 2024. After some technical issues, the complainant received the confirmatory decision on 14 November 2024.

17. The Commission identified four additional documents at confirmatory stage, including two narrative reports and two financial and expenditure verification reports. It granted partial access to the narrative reports and maintained its position that access to the financial and expenditure verification reports must be refused in full. 

18. In November 2024, the Commission replied to the Ombudsman’s proposal for a solution, providing an overview of the access granted at confirmatory stage and some further explanations. 

19. The complainant welcomed the Commission’s decision to grant wider access to the requested documents. However, she underlined that the extremely long delays in the Commission’s processing of her request were a significant obstacle to achieving timely transparency.

20. The complainant also questioned the Commission’s application of the exception concerning the protection of commercial interests considering the public interest in the documents' disclosure. She emphasised that the project concerns planned legislative acts in Senegal, involving for instance a restructuring of the Senegalese Family Code, and that this information has not been mentioned in publicly available documents on the project so far.

The Ombudsman's assessment after the proposal for a solution

On the disclosure of the documents

21. The Commission has now given wider access to the four documents at issue in the Ombudsman’s solution proposal. 

22. Regarding the audit report[16], the Commission provided more detailed explanations in its confirmatory decision and reply to the solution proposal as to the possible reputational risk of the external contractor in case of the report’s disclosure. In view of these explanations, the Ombudsman considers that it was reasonable for the Commission to refuse access to the report.

23. Regarding the narrative reports covered by the solution proposal[17], the Ombudsman welcomes the wide access now granted. Having reviewed the remaining redactions, they cover mostly specific information about the know-how, methodology and strategy of the external contractor, as explained by the Commission in its reply to the solution proposal[18]. It is thus reasonable that the Commission redacted such information. However, the Ombudsman agrees with the complainant that it is not clear why the Commission redacted other information, such as the identity of the organisation sub-contracted to prepare legislative proposals, in order to protect the commercial interest of the external contractor[19].

24. Regarding the financial report[20], the Commission considered that even its partial disclosure would reveal the detailed repartition of costs and strategy in implementing the projects. The Commission also argued that the Action Document referred to by the Ombudsman mentions the total amount and budgets for projects and that the Commission has no obligation to disclose detailed cost structures or the amount of interim payments.

25. The Ombudsman maintains her view that partial access to the financial report at issue could have been granted without revealing the detailed cost structure of the external contractor. The Ombudsman notes that the Action Document at issue reveals more than the total indicative budget of the project but provides a break down by activities[21].

26. In view of the above, the Ombudsman considers that while, overall, the Commission granted wider access, further access could have been given to the narrative reports and the financial report. However, as the Commission has just adopted its final position after more than a year and a half of delay, pursuing the inquiry would not serve any useful purpose at this stage.

On the delay in handling the public access to documents request

27. The Ombudsman is very concerned about the egregious delay incurred by the Commission in replying to the complainant’s confirmatory application in this case.

28. According to 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[22].

29. In this case, the Commission took 17 months to take a decision on the complainant’s confirmatory application. Almost 21 months have passed since the complainant submitted her initial request.

30. In its confirmatory decision, the Commission referred to its consultation of the external contractor[23] on the public access request. From the inspection, it appears that the Commission launched the consultation of the external contractor in July 2024 only, that is, more than a year after receiving the confirmatory application. The Ombudsman already criticised the Commission for initiating third-party consultations very late in the process and asked for this practice to be improved[24]. 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.

31. It is unacceptable for citizens 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[25].

Conclusions

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

The Commission has provided the complainant with wider access to the requested documents. While the Ombudsman considers that questions remain as to some redactions, 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 again urges the Commission to improve its handling of public access requests.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 10/01/2025

 

[1] See the Constitutive Agreement available at: https://trust-fund-for-africa.europa.eu/document/download/4cb965d7-8ad5-4da9-9f6d-3843f4bf0e82_en?filename=Constitutive%20Agreement%20; more information on trust funds created and administered by the Commission available at: https://international-partnerships.ec.europa.eu/funding-and-technical-assistance/funding-instruments/trust-funds_en.

[2] See Article 2 of the Constitutive Agreement.

[3] For more information on the EUTFA and performance audit by the European Court of Auditors, see Special report 17/2024, The EU trust fund for Africa, available at: https://www.eca.europa.eu/ECAPublications/SR-2024-17/SR-2024-17_EN.pdf. 

[4] https://trust-fund-for-africa.europa.eu/where-we-work/regions-countries/sahel-lake-chad_en

[5] https://trust-fund-for-africa.europa.eu/where-we-work/regions-countries/sahel-lake-chad/senegal_en

[6] Free translation from: https://trust-fund-for-africa.europa.eu/our-programmes/programme-dappui-au-renforcement-du-systeme-dinformation-de-letat-civil-et-la-creation-dun-fichier_en.

[7] Under 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.

[8] Registered under the reference EASE 2022/7144.

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

[10] Article 4(2) first indent of Regulation 1049/2001.

[11] See case 596/2023/NK: https://www.ombudsman.europa.eu/en/opening-summary/en/168153.

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

[13] Solution proposal available at: https://www.ombudsman.europa.eu/solution/197102.

[14] The Action Document was published on the Emergency Trust Fund for Africa website, available at https://trust-fund-for-africa.europa.eu/our-programmes/programme-dappui-au-renforcement-du-systeme-dinformation-de-letat-civil-et-la-creation-dun-fichier_en.

[15] https://trust-fund-for-africa.europa.eu/system/files/2023-03/t05-eutf-sah-sn-07_etat_civil.pdf#page=17

[16] Also called expenditure verification reports

[17] Covered in the solution proposal: documents numbered as 5.2 and 5.5 in the confirmatory decision.

[18] See non-confidential version of the reply to the solution proposal available at: https://www.ombudsman.europa.eu/doc/correspondence/197103.

[19] See judgment of the General Court of 7 February 2018, PTC Therapeutics International v European Medicines Agency (EMA), paragraph 84, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130deee450964724a4f41b4efb01cc5d17157.e34KaxiLc3eQc40LaxqMbN4Pb30Le0?text=&docid=199044&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=86096. 

[20] Covered in the solution proposal Document 5.3

[21] https://trust-fund-for-africa.europa.eu/system/files/2023-03/t05-eutf-sah-sn-07_etat_civil.pdf#page=17.

[22] Article 8 of Regulation 1049/2001.

[23] Pursuant to Article 4(4) of Regulation 1049/2001.

[24] 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.

[25] 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.