Decision of the European Ombudsman in the inquiry into complaint 216/2009/(TN)(DK)TN against the European Commission
Decision - Case 216/2009/TN - Opened on Friday | 27 February 2009 - Recommendation on Tuesday | 27 August 2013 - Decision on Tuesday | 04 November 2014
The Commission refused to grant an NGO public access to background documents on the Commission Communication on the application of Community law. In principle, all documents of the EU institutions should be accessible to the public. Exceptions to public access should be interpreted narrowly. The Ombudsman did not find convincing the Commission's explanations as to why it considered the exceptions to public access to be applicable to the documents. The Ombudsman therefore recommended to the Commission that it grant access to the documents and gave the Commission detailed and constructive advice on how best to apply the legislation governing public access to documents (Regulation 1049/2001). The Commission simply replied that it considered that it had already provided valid reasons for refusing access. The Ombudsman considered this reply unsatisfactory and closed the case with critical remarks to the effect that the Commission has shown a flagrant unwillingness to engage in a constructive dialogue on the issue of public access to these important documents. Given the importance of the issue, she also informed the European Parliament of her decision.
1. The complaint concerns the Commission's refusal to grant public access to background documents on the Commission Communication on the application of Community law in the Member States (the 'Communication').
2. The request for public access was made under Regulation 1049/2001 in November 2007 by the European Citizen Action Service ('ECAS'), a Brussels-based NGO. While the Commission granted access to some of the documents covered by the request, it refused access to 21 documents, namely, those concerning the role of the Member States and the proposal for the prioritisation of complaints.
3. The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim.
The Commission wrongly dealt with the request for access to documents.
In support of the above allegation, ECAS argued that the Commission failed to (i) provide pertinent arguments in support of its decision to refuse access under Regulation 1049/2001; (ii) make an individual assessment of each document covered by the request for access; (iii) balance the public interest against the interest of the institution; (iv) explain why its list of refused documents did not contain a note from DG Justice, Freedom and Security; and (v) respond to the confirmatory application within the prescribed deadline.
The Commission should provide access to the relevant documents.
4. In the course of the inquiry into the refusal to grant public access, the Ombudsman received the opinion of the Commission and the complainant's comments thereon. The Ombudsman's services also carried out an inspection of the documents concerned. On the basis of that inquiry, the Ombudsman made a recommendation to the Commission that it grant access to the documents in question, or provide valid reasons for not doing so. The Commission responded to the draft recommendation by rejecting it. The Ombudsman has taken into account all the arguments and views put forward by the parties.
The allegedly incorrect handling of the access request
The Ombudsman's draft recommendation
5. The Ombudsman's draft recommendation was based on the following reasoning. The mere fact that a document relates to an interest protected by an exception to public access set out in Article 4 of Regulation 1049/2001 is not, in itself, sufficient to justify the application of that exception. Nor did the following arguments, put forward by the Commission, constitute valid reasons for refusing access: the fact that the Commission Communication was also based on unrecorded material (and not only on the background documents to which access was requested), and that the existing documents therefore did not fully explain the Commission's decision-making process; the fact that a document may contain information that was not intended for the public and that if access to such a document were given, citizens would not necessarily acquire a full and accurate understanding of the institution's decision-making process.
6. In the recommendation, the Ombudsman stated that the purpose of Regulation 1049/2001 is to allow citizens to become more aware of how the EU public administration, which works on behalf of citizens, functions. As such, the Regulation's very aim is to allow access to various and divergent points of view. These include those points of view that do not reflect the institution's final position, but which enabled it to adopt that position. The Ombudsman also noted that the documents concerned do not relate to any specific infringement case against any Member State. The Ombudsman could not, therefore, agree that the documents in question are particularly sensitive, or that they contain particularly self-critical, speculative or controversial views that could lead the Commission's services to exercise self-restraint if they knew that the views would become public. In addition, the fact that access to the documents concerned may give the public a better insight into the manner in which the Commission opts to make use of its wide margin of discretion in infringement procedures does not mean that the Commission's freedom to make use of its wide margin of discretion would be curtailed.
The Ombudsman's assessment after the draft recommendation
7. In its reply to the Ombudsman's recommendation to grant access to the documents in question, or to provide valid reasons for not doing so, the Commission argued that it had already provided extensive reasons justifying the application of the relevant exceptions to public access by describing how the release of the documents would specifically undermine the interests protected by those exceptions.
8. The reasons to which the Commission referred have already been carefully analysed in the Ombudsman's recommendation. The Ombudsman notes that the Commission simply states that the arguments it had put forward previously, which the Ombudsman rejected, should nevertheless be considered valid, without even trying to refute the Ombudsman's analysis. The Commission's position is thus evidently inadequate.
9. The Ombudsman is deeply disappointed that the Commission has, in yet another case, shown a flagrant unwillingness to engage in a constructive dialogue on how best to apply the public access rules set out in Regulation 1049/2001. She notes that these rules seek to give the widest possible effect to the fundamental right of public access to documents set out in Article 42 of the Charter of Fundamental Right of the European Union.
10. The Ombudsman is convinced that citizens in a democratic society are best served by being told the truth by the public administration and that there is nothing to fear about being very open about how the administration functions. Transparency is thus a key to building trust between the EU administration and citizens.
11. The Ombudsman thus concludes, regretfully, that the Commission has not provided sufficiently substantiated and convincing arguments to justify the application of the exceptions to public access which it has invoked. This constitutes an instance of maladministration.
12. The Ombudsman closes the case with critical remarks reflecting the seriousness of this issue, both as regards the failure by the Commission to give reasons for applying the exceptions to public access to documents, and its unwillingness to engage in a constructive dialogue with the Ombudsman on this matter.
13. Given the time that has passed since the opening of the inquiry, and the fact that a new College of Commissioners is about to take up office, the Ombudsman considers that it would not be appropriate to make a special report to the European Parliament. However, given the seriousness of the issue, she will nevertheless inform Parliament of her decision.
On the basis of the inquiry into this complaint, the Ombudsman closes it with the following critical remarks:
The Commission has not provided sufficiently substantiated and convincing arguments to justify the application of the exceptions to public access which it has invoked. In its disregard for the principle of transparency and for the fundamental right of public access to its documents, the Commission has contributed to a further undermining of public trust in the European Union and its institutions.
The above constitute instances of maladministration.
Strasbourg, 4 November 2014
 Communication from the Commission - A Europe of Results - Applying Community Law, COM(2007) 502 final of 5 September 2007.
 Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents
 For the Ombudsman's detailed assessment, see the Draft recommendation of the European Ombudsman in the inquiry into complaint 216/2009/(TN)(DK)TN against the European Commission, available at: http://www.ombudsman.europa.eu/cases/draftrecommendation.faces/en/51376/html.bookmark
 Case T-20/99 Denkavit Nederland v Commission  ECR II-3011, paragraph 45.
 See also the Ombudsman's decision in case 2293/2008/(BB)(FOR)TN, available at: www.ombudsman.europa.eu/cases/decision.faces/en/12439/html.bookmark