Date: Thursday, 20 April 2023

Remote meeting via WebEx

Present

European Investment Bank

Two representatives from the Inspectorate General

Two representatives from the General Secretariat

One representative from the Operations Directorate

Two representatives from the Legal Directorate

Two representatives from the Projects Directorate

European Ombudsman

Ms Jennifer King, Legal Expert

Ms Oana Marin, Inquiries Officer

Ms Silvia Fuller, Inquiries Officer

Ms Natalia Chiner, Inquiries Trainee

Purpose of the meeting

The meeting was held in the context of an inquiry into how the European Investment Bank (EIB) provided access to the Environmental and Social Data Sheet (ESDS) of a project it decided to finance in Nairobi.[1] The purpose of the meeting was for the Ombudsman inquiry team to obtain clarifications on the EIB’s proactive publication of ESDSs. The meeting was also geared at understanding how the EIB handled the complainant’s specific public access request and to obtain clarifications on its refusal to provide access to the Nairobi project ESDS at the time of the confirmatory decision.

Introduction and procedural information

The participants introduced themselves and the Ombudsman inquiry team thanked the EIB representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the EIB as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the EIB’s prior consent.^[2]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the EIB to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

On the specific public access to documents request

The Ombudsman inquiry team asked the EIB representatives to provide more information about how the EIB had dealt with the request for access to documents concerning the draft ESDS for the Nairobi project (first aspect of the complaint).

The EIB representatives explained that they handled the complainant’s request for public access to the Nairobi project draft ESDS in line with their Transparency Policy.[3] The reason why the EIB denied access to the draft ESDS and invoked the exception for the protection of the decision-making process when handling the confirmatory application is that, as the ESDS was not yet finalised, and it had not been presented to the Board, modifications could still be introduced.

The Ombudsman inquiry team asked how disclosure of the draft ESDS would create a specific and actual risk for the decision-making process, and how the EIB took into account the fact that this document contained environmental information and was therefore subject to the EU Aarhus Regulation.[4]

The EIB representatives explained that the ESDS contains the opinion of the EIB’s services with regard to environmental, climate and social aspects, as well as the conditions and actions to be discussed and imposed on the promoter for the approval of the loan. In order to secure project funding, the EIB’s governing bodies need to receive this information. At the time of the confirmatory decision, it was not yet certain that this project would have been financed by the EIB as it had not been approved by the EIB Board of Directors. The EIB thus concluded that the ESDS could not be disclosed until the governing bodies were aware of the analyses and conclusions of the services and had the opportunity to express their views on these findings in order to take a final decision on the financing. The fact that the ESDS was meant to be published after approval, i.e., shortly after the confirmatory decision, was also taken into account.

The Ombudsman inquiry team asked how the EIB ensured that civil society was able to provide feedback or input as regards environmental or social matters concerning the project concerned before its approval.

The EIB representatives stated that the EIB in no way restricts the possibility for civil society to provide feedback on the projects financed by the Bank. They highlighted the existence of the EIB’s public register, where environmental and social impact assessment reports and other associated studies related to environment, climate and social aspects are published before projects are approved by the Board. The EIB representatives explained that the public register and the other project-related information published on the EIB website constitute a channel for members of civil society to be made aware of EIB projects under appraisal and engage with the EIB before approval of loans. They allow civil society to make observations and ask questions on the information published, which are then addressed by the EIB and can be taken into account in the context of its decision-making process. The EIB representatives explained that this is the usual channel to raise concerns with the EIB before a decision on a loan was taken.

The EIB representatives pointed out that the environmental and social impact assessment report for the Nairobi project was publicly available already at the time of the complainant’s request. According to the EIB representatives, at no point did the complainant express interest in engaging further with the EIB as regards the project concerned. Rather, the complainant requested access to a specific document, which at that stage was a draft and was considered an internal document of the EIB since it contained preliminary internal views, opinions and discussions of the EIB services.

The EIB representatives stated that they also assessed the possible existence of an overriding public interest in disclosure, but found that in this case there was no public interest that could override the exception, after having taken into account all the elements of this request, including the fact that the document requested was a draft and the finalised version was going to be published after the Board’s approval.

The Ombudsman inquiry team asked whether the EIB had taken into consideration, when examining the complainant’s request and assessing the risk that disclosure would entail for the decision-making process, that the draft ESDS contained environmental information and, therefore, that the exceptions within the EIB Transparency Policy needed to be interpreted in a restrictive manner in line with the EU Aarhus Regulation.

In response, the EIB representatives indicated that they were aware of the fact that the draft ESDS also contained information of an environmental nature, and of the need to interpret the exceptions restrictively. However, the EIB had to take into account that this draft ESDS constituted, at the time of the request, an opinion of the EIB services addressed to the governing bodies to support them in their decision-making. The EIB therefore did consider the grounds for refusal restrictively; yet came to the conclusion that the refusal to disclose the draft ESDS at that stage was justified.

The Ombudsman inquiry team then noted that some elements of the draft ESDS that the EIB refused to disclose in this case were taken from the environmental impact assessment of the project, which was already in the public domain at the time of the complainant’s request. The Ombudsman inquiry team asked whether, when assessing the possibility of granting partial access to the draft ESDS, the EIB had considered disclosing those parts that were publicly available.

The EIB representatives stated that giving partial access to information extracted from a document that was not yet finalised could provide an incomplete or even inaccurate representation of the EIB’s opinion on Environmental, Climate and Social (ECS) matters and negatively affect the decision-making process regarding the project in question. The EIB decided not to grant partial access based both on an assessment of the risk it would pose to the decision-making process and in order not to duplicate publicly available information. Since the ECS information the EIB used to form its opinion, including the project’s EIA report, was already available at the EIB’s website through the public register, there would have been no added value in disclosing this information following the complainant’s request for public access.

The EIB representatives added that, although ESDSs rely on source documents, their purpose is not to constitute as a compilation of source documents, but rather to provide to the governing bodies the technical opinions of the services on the project. Therefore, it would not be helpful for the public if the EIB extracted and disclosed those parts of the draft ESDS which contain publicly available information, as requesters would still not have access to the opinion of the services, which is the very essence of these documents.

As regards those elements of the ESDS that were not publicly available before project approval, the Ombudsman inquiry team asked how civil society would have been aware of and able to express its opinion on the proposed contractual terms to be included in the financial agreement in advance of the decision on funding, in particular, in case they considered these terms to be insufficient to mitigate the social and environmental risks involved.

The EIB representatives stated that the EIB publishes its environmental standard clauses. As regards the additional requirements specific to each project, the EIB representatives explained that, at any point, the public can ask information and express its opinion about the conditions and terms that can be implemented to address the social and environmental risks identified. However, they stated that it would not be in the public interest to circulate information that might not be complete and accurate, and which might be subject to modifications.

On the proactive publication of ESDSs

The Ombudsman inquiry team then asked the EIB representatives about the timing of publication of ESDSs in general and, more concretely, about how the EIB decided that these documents should be published only after approval of the projects by the Board. The Ombudsman also noted that the Transparency Policy does not explicitly indicate a timing for the publication of ESDSs.

The EIB representatives pointed out that the Frequently Asked Questions (FAQ) on the EIB public register contain a clear statement on the timing of publication of ESDSs, as it is explained that they are published following project approval by the EIB Board of Directors. This FAQ is referenced, as a source of additional information, in a footnote to Article 4(3) of the EIB Transparency Policy.

The EIB representatives also explained that they had thoroughly assessed when would be the best timing for publication of ESDSs. The EIB decided it should be after the funding decision is adopted because ESDSs can be considered final only once the loans have been approved. They stated that the Board may request the services to modify the content of the ESDSs or even take the decision not to finance a project. The EIB representatives indicated that this reasoning could be found in the EIB’s reply to the complainant’s confirmatory application, as well as in its reply to the Ombudsman’s preliminary findings in case 1065/2020/PB. According to the EIB representatives, ESDSs serve different purposes in different stages of the approval process: before project approval, they are meant to inform the decision-making process by providing the technical opinion of the services on the project, and after project approval, they are meant to inform the public on the relevant environmental and social assessment of the approved project carried out by the EIB services, including the requirements approved by the EIB governing bodies for that specific operation.

The Ombudsman inquiry team then asked whether the EIB had assessed the practices of other financial institutions as regards proactive publication of similar information.

The EIB representatives confirmed that they are aware of the practices of other institutions and examined this aspect in each review of the EIB Transparency Policy. The EIB is part of a working group, made of international financial institutions and focusing on transparency and engagement issues. Analyses conducted on proactive publication of environmental information within this group have never been conclusive, as there are several factors influencing the practices of the various institutions. This makes the comparison exercise rather difficult. The EIB representatives highlighted that, unlike other members of this working group, the EIB is an EU body and as such is subject to the principle of transparency enshrined in the Treaties as well as to the Aarhus Regulation, which the EIB implements through its Transparency Policy.

The EIB representatives referred to Article 2(1)(e) of the Aarhus Regulation and to the exclusion provided for financial plans and programmes relating to the environment laying down how particular projects or activities should be financed. Moreover, the EIB representatives referred to ACCC/C/2007/21,[5] and to the Aarhus Convention Compliance Committee’s findings that, in general, a decision of a financial institution to provide a loan or other financial support is legally not a decision to permit an activity, as is referred to in Article 6 of the Convention.

The EIB representatives then stated that, when it comes to co-financing with other financial institutions, agreements are concluded on how the different requirements on publication of environmental information should be implemented.

The Ombudsman inquiry team asked whether, in the context of these co-financing projects, as a result of the rules and requirements of other institutions, the EIB publishes information at an earlier stage that it would normally have published only after project approval or conclusion of the financial agreement, according to its Transparency Policy.

The EIB representatives indicated that, usually, these aspects are discussed with the other financial institutions before the appraisal, as an effort is made not to duplicate the information available to the public. They also stated that, within these discussions, the other financial institutions acknowledge that the EIB is bound by the EU legal framework, and therefore, it might need to abide by stricter requirements with regards to disclosure of environmental and social information.

The Ombudsman inquiry team informed the EIB representatives that the Ombudsman is working on commissioning a study with the European Parliament Research Service to compare the practices of international financing institutions in terms of publishing environmental information. The Ombudsman inquiry team told the EIB representatives that they would inform the EIB of the progress of the study, as this is currently under development.

The EIB representatives took note of the information provided by the Ombudsman inquiry team and expressed interest in following up on the above-mentioned study before its finalisation. Lastly, the EIB representatives reiterated that the EIB regularly engages with stakeholders on its specific operations and projects, and informed the Ombudsman inquiry team that, apart from the one submitted by the complainant, the EIB has not been able to identify any other request for access to a draft ESDS in the last 10 years.

Some information exchanged during the meting was considered confidential by the EIB and has been included in a confidential annex.

Conclusion of the meeting

The inquiry team thanked the EIB representatives for their time and for the explanations provided, and the meeting ended.

 

Brussels, 20 April 2023

Jennifer KING                                                                                         Oana MARIN

Legal Expert                                                                                          Inquiries Officer

 

 

[1] Nairobi Sustainable Transport Programme BRT3 project : https://www.eib.org/en/projects/all/20150460.

[2] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[3] EIB Transparency Policy: https://www.eib.org/attachments/strategies/eib_group_transparency_policy_2021_en.pdf.

[4] Regulation 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32006R1367.

[5] https://unece.org/env/pp/cc/accc.c.2007.21_european-community