Location: Office of the European Ombudsman (rue Froissart 87, Brussels)

Present

European Commission

• Head of Unit - Strategy & Corporate Campaigns (DG COMM.B.1)
• Head of Unit - Legal Advice, Security and Document Management (DG COMM.D.2)
• Head of Unit - Interinstitutional Relations, Corporate Contracts & EDCC (DG COMM.B.2)
• Head of Sector - Public Procurement and Grants (DG COMM.D.3.003)
• Legal Officer - Ethics, Good Administration and Relations with the European Ombudsman (SG.C.2)
• Deputy Head of Unit - Transparency, Document Management and Access to Documents (SG.C.1)
• Legal and Policy Officer - Transparency, Document Management and Access to Documents (SG.C.1)
• Legal and Policy Officer - Transparency, Document Management and Access to Documents (SG.C.1)
• Administrative Agent - Transparency, Document Management and Access to Documents (SG.C.1)

European Ombudsman

• Jennifer King, Legal Expert
• Nicholas Hernanz, Inquiries Officer
• Kilian Frey, Inquiries Trainee

Background and purpose of the meeting

The complaint concerns the European Commission’s reply to a request for public access to documents registered under EASE 2024/0393 related to the preparation, implementation and evaluation of the Commission’s public relations campaign “You are EU”. The complainant argues that the Commission failed to identify all documents that fall within the scope of the request.

The purpose of the meeting was for the Ombudsman inquiry team to obtain clarification on how the Commission searched for and identified the documents falling within the scope of the complainant’s public access request.

Introduction and procedural information

The attendees introduced themselves and the Ombudsman inquiry team thanked the Commission representatives for meeting with them. 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 representatives explained that the complainant’s initial request concerned “the PR campaign ‘You are EU’ which the Commission is currently running” (emphasis added). Since the campaign is divided into three different waves, the Commission took the view that the initial request only concerned the documents that related to the third wave of the campaign (the one that is currently running). Following the complainant’s confirmatory application, the Commission understood that the scope may be broader, resulting in the identification of additional documents.

The Commission representatives explained that, after having received the complainant’s confirmatory application, the Secretariat-General of the Commission worked in close collaboration with the Directorate-General for Communication (DG COMM) who dealt with the initial request. In addition to the 32 documents identified at initial stage, DG COMM identified a further 8 documents. The Commission representatives noted that one of the additional documents identified, the “Note on a negotiated procedure”[2], provided key information with regard to the complainant’s wish to understand why this procedure was chosen, what legal basis was used and how the preliminary market analysis was carried out.

In reply to a question from the Ombudsman inquiry team about certain documents mentioned in the documents disclosed, but not identified, the Commission explained that these were preparatory documents and were therefore considered to be out of scope. The Commission representatives said that the complainant did not specifically request these documents.

The Commission representatives agreed that, if the Ombudsman were to conclude that additional documents should have been identified, the Commission could re-assess its decision.

They also mentioned the difficult context in April 2022 when the Commission initiated the negotiated procedure COMM/2022/NP/0302 for a communication campaign on the EU’s response to the effects of the Russian war of aggression against Ukraine. Given the context, the Commission had to change rapidly its general communication strategy in order to make it faster, more reactive and more efficient to explain the Union’s actions in response to the war and the resulting energy and economic crises. There was indeed an urgent need to communicate the EU’s response to a broad public and the existing contractual solutions did not allow to have rapidly a campaign in place.

The Financial Regulation[3] allows EU institutions to use a negotiated procedure without prior publication of a contract notice in cases of extreme urgency. The Commission representatives highlighted that, in such cases, there is no mandatory requirement to carry out a preliminary market analysis; but the Commission nonetheless decided to analyse the market and from that identified three communication companies and interviewed them.

The communication activities showing solidarity with Ukraine, including the ‘You are EU’ campaign, even won the European Ombudsman’s award for good administration in 2023, in the category “Excellence in communications”.[4]

The Ombudsman inquiry team referred to the claim of the complainant, that it was difficult to believe that the Commission had decided to launch the ‘You are EU’ campaign “completely out of the blue”. They asked if additional documents concerning the preparatory stages and/or any decision to launch the negotiated procedure exist. The Commission representatives confirmed that no such documents exist. The decision to initiate the procedure was the result of a brainstorming among senior Commission officials in DG COMM. It was based on the Communication on Corporate communication action in 2021-2023 under the Multiannual Financial Framework 2021-2027, ‘Communicating a Union that strives for more’[5], adopted end of 2020, which says that the DG can pool resources in order to carry out pan-European communication campaigns.

The Ombudsman inquiry team asked about the complainant’s request to have access to documents held by the Commission President and/or her Cabinet. The Commission representatives explained that, at initial stage, they had checked with the Director for Strategy and Corporate communication of DG COMM whether they had had any e-mail or text message exchange with the President or her Cabinet, and the Director had confirmed that none had been exchanged. They did not check directly with the President or her Cabinet as any exchanges, had they taken place, would have been with the Director as the responsible authorising officer and thus any document of that kind would have been in the possession of that Director. At confirmatory stage, the Secretariat-General of the Commission handling the confirmatory application also did not contact the President Cabinet, based on the same confirmation by DG COMM as to the documents held that no such e-mail or text message existed. On top of it, the Commission representatives referred to the complainant’s confirmatory application in which he had not repeated his request in relation to e-mail or text messages from the President or her Cabinet.

The Ombudsman inquiry team noted that the confirmatory decision did not contain any reasoning as to how the search for the documents requested was conducted, notwithstanding the concerns of the complainant as to the non-identification of relevant documents. They asked if the Commission could consider, in future, explaining in more detail in its confirmatory decisions how the search for documents is carried out (even in cases where no documents are identified). The Commission representatives said they would take this suggestion into account as an example of good practice.

In reply to a question from the Ombudsman inquiry team, the Commission representatives provided some clarifications on the framework contracts at issue in the complainant’s request. They explained that, for the first wave of the campaign, in light of the urgency mentioned above, the Commission used an exceptional negotiated procedure in order to accelerate the procurement process (it took less than three months to sign the contract, compared to nine months in standard framework contracts). The framework contract used to launch the first wave lasted one year only. The second and third waves were subsequently based on standard open procedures. In total, there were only two tender procedures: one for the first wave, and the other for the second and third waves.

The Ombudsman inquiry team referred to a number of examples of documents that had been referred to within the text of the documents identified and asked whether these also fell within the scope of the complainant’s request. The inquiry team also asked if certain survey results and quantitative analyses mentioned in document 32, which is a progress report on corporate campaigning[6], were documents that should have been identified.

The Commission representatives agreed to carry out a new search for all relevant documents falling within the scope of the request and assess the newly identified documents, if any, under Regulation 1049/2001. They would consider the documents referred to by the Ombudsman[7] when conducting this new search for documents and would inform the complainant about the Commission’s decision. They also clarified that document 32 covered the second wave of the ‘You are EU’ campaign and that no progress report on the third wave exists as the campaign is still ongoing. The Commission also agreed to check whether the progress report covering the first wave of the campaign should have been identified.

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, 05 September 2024

Jennifer King                                                                                                                       Nicholas Hernanz

Legal Expert                                                                                                                        Inquiries Officer

 

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

[2] Ref. Ares(2022)3066266 - 19/04/2022

[3] Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1046

[4] https://www.ombudsman.europa.eu/en/press-release/en/171613

[5] Available at: https://ec.europa.eu/transparency/documents-register/detail?ref=C(2020)9390&lang=en

[6] “Note for the attention of the Executive Communication Advisor of President von der Leyen”, Ref. Ares(2023)5148142 dated 25 July 2023.

[7] The Ombudsman inquiry team prepared an indicative and non-exhaustive list of examples of documents that were mentioned in the documents already disclosed, but not identified. The list is annexed to this meeting report. The Commission representatives asked that the annex be treated confidentially.