Physical location (Commission’s premises)

Date: Tuesday, 09 April 2024

Present

European Commission (Secretariat-General, Units C1 and C2)

Deputy Head of Unit - Transparency, Document Management and Access to Documents

Senior Expert - Coordinator for inter-institutional relations - relations with the European Ombudsman

Legal and Policy Officer - Access to Documents

Policy Officer

Coordinator, Inter-institutional relations

IT specialist

European Ombudsman (Directorate of Inquiries)

Jennifer King, Legal Expert

Alice Bernard, Inquiries Officer

Silvia Fuller, Inquiries Officer

Ella de Jonge, Inquiries Trainee

Background

The case concerns a request for public access to documents concerning a meeting between the Commission President and the President of Tunisia that took place on 11 June 2023 and the preparation of the 5-pillars package that was announced on that day^[1]. In its initial decision, the Commission stated that it did not hold any documents that could fall within the scope of the complainant’s public access request. The complainant submitted a confirmatory application on 25 October 2023, but has not yet received the confirmatory decision from the Commission. The complainant also encountered technical issues with the Commission’s Portal for handling public access requests ‘EASE’.

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to obtain a better understanding of how the Commission handled the complainant’s request for public access to documents, in particular how and where the Commission searched for the requested documents. The objective was also to better understand how the Commission handled the technical difficulty encountered by the complainant with the EASE Portal.

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.^[2]

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 Ombudsman inquiry team asked the Commission representatives to provide an update on the state of play of the decision-making process at confirmatory stage.

The Commission representatives explained that the adoption of the confirmatory decision, which includes consulting third parties, is still ongoing. They emphasised that the complainant’s confirmatory application is being prioritised, but that they were not in a position to provide further details on the content of the draft confirmatory decision, including on whether any documents have been identified at confirmatory stage so far. The Commission representatives stated that the confirmatory decision is expected to be adopted in the next days or weeks.

The inquiry team asked the Commission representatives how the search for documents was conducted at the initial stage.

The Commission representatives responded that the standard procedure for searching documents was followed, which involves a search within the Commission’s document management system (Ares) and contacting those staff members who could be expected to be in possession of the documents. In this case, the President’s Cabinet was consulted. The Commission representative also explained, in response to a question from the inquiry team, that, at the initial stage, the Secretariat General did not find the request ambiguous or unclear. The Secretariat General is currently conducting the search for documents again and is reviewing its initial position at the confirmatory stage.

The Commission representatives explained that, in this case, the Secretariat General is responsible for processing the access request, both at the initial and the confirmatory stage, given that it may involve documents held by the President’s Cabinet. As the initial reply and confirmatory decision are adopted in this case by the same unit within the Commission, which is less common, the public access request is processed by a different case handler at the confirmatory stage to avoid any suggestion of bias.

The inquiry team asked what procedure is in place in case the relevant unit’s response that no documents exist does not appear plausible to the Secretariat General.

In this scenario, the Commission representatives explained that usually meetings are scheduled to discuss and try to solve the issue at service level. If the matter cannot be settled, sometimes the Legal Service would be involved. If the issue cannot be resolved, the matter would be raised to the relevant hierarchy.

In reply to a question, the Commission representatives confirmed that the same standard of plausibility and procedure for clarifying the position of the relevant unit apply for both the initial and the confirmatory stages.

The inquiry team asked whether the Commission had any further views to express in relation to the complainant’s argument that the non-existence of documents was not plausible given the high-level nature of the meeting and the extent of the package announced.

The Commission representatives assured the inquiry team that full consideration will be given to the arguments raised by the applicant as part of the ongoing confirmatory review.

After a follow-up question on the current status of the approval process, the Commission representatives informed the inquiry team that the confirmatory decision, while drafted, had not been reviewed yet by the Commission Legal Service which is a necessary step before it can be formally approved by the hierarchy.

The inquiry team asked whether the Commission inquired into the technical issue with the EASE Portal that the complainant had raised and how it was handled.

The Commission representatives explained that the Commission became aware of the technical issue after the complainant brought the problem to their attention on 2 October 2023 via the EASE Portal. The Commission received several complaints relating to the same technical problem with the EASE Portal (that is, the impossibility to download or view a document after having been notified that that it was available on the portal). The Commission representatives explained that the technical problem had been investigated and the conclusion was that there was a problem in the interface between EASE and Ares (document registration system), which was then resolved in October 2023.

The inquiry team asked about the communication with the complainant on this issue and when the Commission sent the initial decision by email. The Commission representatives stated that the complainant received the initial decision via email on 24 October and agreed that it could have communicated more proactively and in a timely manner with the complainant.

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, 12/04/2024

Jennifer King                                                                                                                                                   Alice Bernard

Legal Expert                                                                                                                                                    Inquiries Officer

 

[1] https://ec.europa.eu/commission/presscorner/detail/en/statement_23_3201

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