Date: Wednesday, 17 April 2024

Remote video-conferencing meeting

Present

European Commission

Secretariat-General

Unit SG.C.1: Transparency, Document Management and Access to Documents:

• Deputy Head of Unit
• Legal and Policy Officer - Access to Documents
• Legal and Policy Officer – Access to Documents

Unit SG.C.2: Ethics, Good Administration & Relations with European Ombudsman:

• Senior Expert - Coordinator for inter-institutional relations

Directorate-General for Competition

Unit COMP.H.6 - Agriculture and Fisheries:

• Head of Unit - State Aid
• Case Handler Officer - State Aid

Unit COMP.I.1.001 - Legal Team and Registries:

• Head of Sector - Head of the registries
• Policy coordinator

Directorate-General for Environment

Unit ENV.E.4 - Environmental Rule of Law & Governance:

• Legal and Policy Officer - Access to Documents

European Ombudsman

Directorate of Inquiries

• Jennifer King, Legal Expert
• Nicholas Hernanz, Inquiries Officer
• Silvia Fuller, Inquiries Officer
• Paulien Van de Velde-Van Rumst, Inquiries Officer
• Ella de Jonge, Inquiries Trainee

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to obtain a better understanding of the Commission’s interpretation of the notion of ‘emissions into the environment’, as well as the Commission’s assessment in its confirmatory decision that the complainant had not put forward convincing arguments as regards a possible overriding public interest.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the Commission’s 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 Commission as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Commission’s prior consent.^[1]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the Commission 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

The Commission’s representatives provided background context to the confirmatory decision. The request for public access to documents by the complainant related to two state aid Schemes concerning the Irish Forestry Programme of 2023 - 2027. The Commission identified two categories of documents: for the first category (comprising one document), the Commission granted wide partial access because the document was already in the public domain. It refused to grant access to the second category of documents (comprising 16 documents), relying on the general presumption for the protection of investigations, as the documents were part of a state aid investigation. The general presumption means that the Commission does not need to carry out an individual assessment of each document. The Commission’s representatives emphasised the importance of conducting state aid investigations in full confidentiality, in line with EU case law.

Emissions into the environment

In the confirmatory decision, the Commission concluded that the requested documents do not contain information concerning emissions into the environment. This suggests that an individual assessment of the documents was carried out. The inquiry team asked the Commission’s representatives to clarify how it interprets the notion of ‘emissions into the environment’ and about the possible existence of information on emissions into the environment in the documents.

The Commission’s representatives stated that the notion of ‘emissions into the environment’ is interpreted in line with the case law of the Court of Justice of the EU. They explained that the documents in question primarily concern state aid investigations, and as such pertain less to environmental concerns. The statement in the confirmatory decision that the documents do not entail information on emissions into the environment should therefore be understood in the context of the state aid investigations, and not from an environmental perspective. The Commission’s representatives confirmed that it had relied on a general presumption and that no individual assessment of the documents was carried out.  They explained that, taken out of context, the statement that the documents do not entail information on emissions into the environment could be misunderstood, and said that they would make it clear in future confirmatory decisions.

They referred to Article 6(1) of the Aarhus Regulation[2], which clearly excludes from its application information obtained in the context of investigations carried out by the EU institutions (including state aid investigations). As such, the Commission representatives considered that, whether or not the documents contain information on emissions into the environment, this is irrelevant for the assessment of whether an overriding public interest in disclosure is deemed to exist.

Possible overriding public interest

The inquiry team asked the Commission to clarify its position in the confirmatory decision that the complainant had not brought forward convincing arguments on the existence of an overriding public interest.

The Commission’s representatives confirmed that it had assessed each argument brought forward by the complainant. In particular, the Commission found that the complainant had not sufficiently specified to what extent the disclosure of documents could serve the general interest. The complainant had relied on previous programmes in their argumentation which were separate from the current state aid schemes, and brought forward arguments on the protection of their private interest to ensure effective judicial protection (under Article 9(3) of the Aarhus Convention[3] read in conjunction with Article 47 of the Charter of Fundamental Rights) instead of an overriding public interest. The Commission’s representatives explained that private interests such as judicial representation and access to justice are not taken into account when evaluating the existence of an overriding public interest. The Commission representatives underlined that the confirmatory decision addressed all the arguments brought up by the applicant.

Conclusion of the meeting

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

 

Brussels/Strasbourg, 22 April 2024

Jennifer King                                                                                                         Nicholas Hernanz

Legal Expert                                                                                                          Inquiries Officer

 

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

[2] Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 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, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006R1367

[3] Convention on access to information, public participation in decision-making and access to justice in environmental matters, done at Aarhus, Denmark, on 25 June 1998, available at: https://unece.org/DAM/env/pp/documents/cep43e.pdf