Head of Unit - C2 Secretariat‐General European Commission

 

 

Dear Mr X,

I am writing to share our preliminary views in this case and hope they can be taken into account by the Commission in its confirmatory decision.

The case concerns the Commission’s implicit refusal to give public access to the draft impact assessment carried out in the context of the revision of the Food Information to Consumers (FIC) Regulation[1] and to minutes related to an “upstream meeting” between the Regulatory Scrutiny Board (RSB) and DG SANTE on this matter.

At the initial stage, the Commission refused access to these documents in their entirety, arguing that disclosure would seriously undermine an ongoing decision-making process as the relevant legislative proposal had not yet been adopted.[2]

The complainant then made a confirmatory application, contending, amongst other things, that there is an overriding public interest in disclosure. In the absence of a reply within the prescribed time limit, which expired on 4 January 2024, the complainant turned to the Ombudsman.

On 7 February 2024, our Office asked the Commission to issue a response to the complainant’s confirmatory application by 1 March 2024. We also asked to inspect the documents at issue and gave the Commission the opportunity to make comments.

In reply, the Commission shared a copy of the documents with our Office. However, the Commission did not provide comments and, to date, has not yet adopted a confirmatory decision.

The inquiry team has inspected the draft impact assessment and the meeting minutes at issue. Based on our review of the documents, we are not convinced that they can legitimately be withheld, and certainly not in their entirety.

The Ombudsman has recently made a proposal for a solution in her inquiry concerning the non-disclosure of the RSB opinion on the draft impact assessment at issue here (case 2347/2023/MIK). In her proposal, the Ombudsman set out why she considers that the Commission’s reasoning in that case does not justify the refusal of access to the RSB opinion. Specifically, the RSB opinion constitutes a “legislative document”, to which the highest standards of transparency apply.[3] The Commission had not demonstrated that the RSB opinion was particularly sensitive and thus that there is a “specific, actual and reasonably foreseeable risk” that disclosure would seriously undermine the Commission’s decision-making, as required by EU case-law.[4]

A few days after the Ombudsman shared her proposal for a solution, the Commission issued a confirmatory decision upholding its decision to refuse access in full. While it accepted that the RSB opinion is a legislative document, it argued that the Client Earth ruling cited above "does not provide an unconditional right of direct access to any impact assessment documents." Rather, it said, the institution has to carry out a case-by-case assessment.  

Concerning the case at hand, the Commission has said that it needed room for reflection on the revision of the FIC Regulation and that there has been a “stark difference” between the views of Member States, which meant that this decision-making has been particularly sensitive.

As set out in the Ombudsman’s proposal for a solution in case 2347/2023/MIK, general considerations, such as the need to consider different policy options and to preserve “room for reflection and for internal discussion”, apply to any legislative file and they do not illustrate any specific risk that the disclosure of a specific legislative document entails. In fact, it is the very nature of an impact assessment that it presents the different policy options under consideration and it is for this reason that the Court considered that access to such documents must be provided at an early stage, that is, while the related decision-making is still ongoing.

In addition, the fact that the planned revision of legislation is controversial or particularly sensitive, cannot as such justify the non-disclosure of a specific legislative document.[5] Rather, it is the content of the specific document, to which access is sought, that is decisive for the question of whether access can be granted. 

Thus, while it is true that the institution concerned has to carry out a case-by-case assessment of each document requested, the Commission’s decision of 30 October 2023 falls short and its intention to publish the final impact assessment together with the legislative proposal, once the proposal is finalised, is not sufficient to meet the required standard of transparency.

In light of the significant delay already incurred in this case, I therefore urge the Commission to adopt a confirmatory decision without further delay, taking the above points into account.

Yours sincerely,

Emily O'Reilly

European Ombudsman

Strasbourg, 15/05/2024

 

[1] Regulation 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food

information to consumers, OJ L 304/18.

[2] In accordance with Article 4(3), first subparagraph of Regulation 1049/2001.

[3] Under the EU Treaties, citizens have the “right to participate in the democratic life of the Union” (Article 10 of the

Treaty on European Union, TEU). Therefore, all EU decisions must be taken “as openly and as closely as possible to

the citizens” (Articles 1 and 10(3) TEU). Under the EU legislation on public access to documents, wider access must be

granted to “legislative documents” (Article 12(2) and Recital 6 of Regulation 1049/2001).

[4] Judgment of the Court of Justice of 4 September 2018, ClientEarth v Commission, C-57/16 P: https://curia.europa.eu/juris/document/document.jsf;jsessionid=2BDC1E2E6333EC140C778466AFEC9767?text=&docid=205322&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=96111.

[5] See, for example, judgment of the Court of 8 June 2023, Council v Pech, C-408/21 P, paragraph 88: https://curia.europa.eu/juris/document/document.jsf?text=&docid=274436&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=4725359.