In Person (Berlaymont)

Date: 9 October 2024

Present

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

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

Policy Officer - Coordinator for inter-institutional Relations - relations with the European Ombudsman

Legal and Policy Officer - Access to Documents

Two case handlers - Access to Documents

Legal Assistant - Access to Documents

European Ombudsman

Jennifer King - Legal Expert

Tanja Ehnert - Inquiries Coordinator

Alice Bernard - Inquiries Officer

Amandine Le Bellec - Inquiries Officer

Kilian Frey - Inquiries Trainee

Background

The case concerns a request for public access to documents related to 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 falling within the scope of the complainant’s public access request. The complainant submitted a confirmatory application on 25 October 2023, but in the absence of a reply, turned to the Ombudsman.

In light of the ongoing delay, in March 2024, the Ombudsman asked to inspect any document(s) that the Commission may have provisionally identified at confirmatory stage, as falling within the scope of the public access request. In June, the Commission provided the Ombudsman inquiry team with eleven documents.

On 16 July 2024, the Ombudsman shared with the Commission her preliminary views and considered that it was necessary to inspect the internal consultations and exchanges within the Commission related to this public access request, including all exchanges between the Secretariat-General and other relevant parts of the Commission that were consulted on the access request. 

Purpose of the inspection meeting

The meeting was organised at the initiative of the Commission, to provide the Ombudsman inquiry team with the internal exchanges requested and to address any questions following that inspection.

Introduction and procedural information

The Ombudsman inquiry team confirmed that a report will be prepared and sent to the Commission to ensure that the content is factually accurate and complete. No confidential information would be included in the report or otherwise provided to the complainant or any third party. Any confidential information would be recorded in a confidential annex to this meeting report.

The Commission representatives provided the Ombudsman inquiry team with hard copies of the requested internal exchanges. Following the inspection, the inquiry team asked questions to clarify certain matters seen in the inspected documents.

The list of inspected documents is included in the confidential annex. One of the inspected documents is the confirmatory decision[2] in this case, which was issued on the day before the meeting.

Information exchanged

The Commission representatives confirmed that the confirmatory decision, issued on 8 October 2024, identified 13 documents as falling within the scope of the request.

When dealing with the confirmatory application in this case, it became clear to the Secretariat-General (SG) of the Commission that DG NEAR[3] had dealt with a similar public access request at initial stage, which at the time of the meeting was pending at confirmatory stage with the SG.

In light of this, the Ombudsman inquiry team asked the Commission to clarify (i) how these cases overlap, (ii) how the overlap led to the identification of new documents in this case and (iii) whether, in the absence of this parallel case, the SG would have consulted DG NEAR at confirmatory stage.

The Commission representatives confirmed that (i) the scope of the public access request dealt with by DG NEAR indeed overlapped with this request because both applicants asked for the same set of documents. (ii) At initial stage, the request in this case was assigned to the SG and the SG had consulted the Cabinet of the President only. At confirmatory stage, the case consequently attributed to another case-handler who  noted that because the request had two components[4], it should have been split at the initial stage between the SG (regarding documents held by the Cabinet of the President) and DG NEAR (regarding documents related to the preparation of the package), in accordance with the usual practice of the Commission. This has now been rectified at confirmatory stage. (iii) In order to rectify this omission, DG NEAR was consulted at confirmatory stage, together with the relevant SG policy unit for the part regarding the involvement of the President, to see whether there were any additional documents falling within the scope of the request. The same set of documents was identified by DG NEAR in the similar case mentioned above. SG confirmed that such a thorough revision is the usual practice in many cases at confirmatory stage.

The Ombudsman inquiry team noted that two of the documents which have been identified at confirmatory stage are briefings for the Commission President. The Commission protected from public access these two documents in their entirety, together with the other three briefings identified (two for Commissioner Varhely and one for the Director-General of DG NEAR).

The Commission representatives stated that this access request was subject to intensive internal deliberations, because the briefings in question are very sensitive and relate to the EU’s international relations with a third country and as such fall within the scope of one of the exceptions in the Regulation 1049/2001. The Commission considered that these briefings were sensitive in nature, as they contain a lot of strategic knowledge and reflect the input provided by different services, and therefore in this particular case they should not be disclosed. Thus, striking the right balance between accountability to the public and the protection of sensitive information constituted a challenge for the Commission, and was reached with the confirmatory decision adopted following an extended internal procedure.

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, 8/11/2024

Tanja Ehnert                                                                                                                                           Alice Bernard

Inquiries Coordinator                                                                                                                              Inquiries Officer

 

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

[2] Confirmatory decision in case EASE 2023/3347, dated 8 October 2024 (C(2024) 7143 final).

[3] Public access request EASE 2023/4330, available at: https://www.asktheeu.org/en/request/political_agreement_on_a_compreh#incoming-51324

[4] (i) documents that led to the decision to travel to Tunis, and (ii) documents that led to the package announced.