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 20 (out of 27) documents containing input from stakeholders which the Commission received in the context of drafting the legislative proposal for a Nature Restoration Law[1].

 At the initial stage, the Commission refused access to the documents in their entirety, arguing that disclosure would seriously undermine an ongoing decision-making process as the relevant legislative process had not yet been completed.[2] Specifically, the Commission argued that disclosure would reveal provisional policy options that do not reflect the subsequent evolution of the legislative proposal during trilogues. Disclosure could thus give rise to unnecessary misunderstandings. The Commission also took the view that partial access was not possible as the remaining content of the documents, after redacting confidential parts, would be meaningless.

The complainant challenged the Commission’s decision by making a confirmatory application. In the absence of a reply within the prescribed time limit, which expired on 18 April 2024, the complainant turned to the Ombudsman.

On 3 May 2024, our Office urged the Commission to issue a confirmatory decision. 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 substantive comments and, to date, has not adopted a confirmatory decision. Rather, the Commission indicated that it was still consulting the third parties concerned.

The Ombudsman inquiry team has now inspected the 20 documents at issue in the complaint as well as the seven documents to which the Commission has granted the complainant wide public access. Based on this review, we are not convinced that the documents at issue could legitimately be withheld at the time of the adoption of the Commission’s initial decision, and certainly not in their entirety.

We note, in particular, that all documents at issue in this case were drawn up or received in the course of the drafting of the legislative proposal for a Nature Restoration Law. The documents reflect the positions of individual Member States and various civil society actors (mainly environmental NGOs) on what the future law should encompass as well as other input these stakeholders provided. This information has informed the Commission’s decision-making that led to the issuing of its legislative proposal.

The Court of Justice has held that legislative documents should, in principle, be disclosed, even at the stage when the adoption of a legislative proposal by the Commission is still uncertain and the decision-making process ongoing.[3] As a general principle, stakeholders who actively provide input to a decision-making process of a public authority should not be allowed to do so behind closed doors.[4] In this case, the Commission had, at the time of the access request, already adopted its proposal for a Nature Restoration Law, alongside the relevant impact assessment report and related documents.

Based on our review of the documents, we do not consider that they contain particularly sensitive information that could have seriously undermined the Commission’s decision-making whilst it was still ongoing (nor the legislative procedure that followed it). Specifically, the information in the documents is − to a large extent − rather general in nature and/or had already been made public elsewhere (even if in summarised form or in a different format). For example, some of the Member States concerned had shared “merely” their own experience and best practices in relation to their relevant national rules or had asked the Commission for clarifications on its own views. As regards preliminary views and policy options, many of these are reflected in the Commission’s own impact assessment (that was published together with the draft legislative proposal) or had been made available elsewhere by their respective author[5].

From the very general reasons for non-disclosure the Commission provided in its initial decision, it is not clear how disclosure of any preliminary views and policy options could have led to “unnecessary misunderstandings”. As the EU Courts have held on multiple occasions, the public is perfectly capable of understanding that certain documents are provisional in nature and may thus be subject to change.[6] 

In this regard, it is also not readily clear how the withheld information is different from the information the Commission had already published[7], such as the contributions to the public consultation, or the information it disclosed to the complainant[8], namely reports on stakeholder workshops. Notably, all these documents contain provisional views and policy options that may or may not have been reflected in the evolution of the legislative proposal in question during the trilogue negotiations.

As regards the input from civil society actors, it can also reasonably be assumed that these stakeholders continued their efforts to lobby for the interests they represent after the Commission had issued its draft legislative proposal. It is thus very likely that the EU co-legislators were aware of their views and the policy options they proposed. The same is true for the views that Member States had shared with the Commission.

Therefore, it appears that the Commission has not demonstrated that disclosure of the documents at issue, at the time of the adoption of the initial decision, would have seriously affected, prolonged or complicated the proper conduct of the legislative procedure. In light of the above and the clear EU case-law on the transparency of legislative documents[9], it is our preliminary view that the Commission’s refusal to give public access to the documents constituted maladministration.

In view of this, we urge the Commission to give wide[10] access to the documents at issue without further delay, and by 31 July 2024 at the latest.

We note that the legislative procedure has in the meantime been completed, with the formal adoption of the Nature Restoration Law by the Council of the EU on 17 June 2024.[11]

Should the Commission wish to share any additional views, in reply to this letter, we would appreciate it if they could be provided at the same time as the confirmatory decision.

Finally, please note that we intend to share this letter with the complainant. We would therefore ask the Commission to inform us if it considers any information contained in this letter confidential, by 17 July 2024.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 10/07/2024

 

[1] https://environment.ec.europa.eu/publications/nature-restoration-law_en.

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

[3] Case C-57/16 P, Client Earth v Commission, paragraph 92. The Ombudsman took the view that documents containing input that feeds into a legislative proposal constitute important elements of the EU legislative process and should therefore benefit from the wider access granted to legislative documents, see Recommendation on the European Commission’s refusal to give public access to documents concerning its proposal for a regulation to prevent and combat online child sexual abuse (case 2421/2023/MIG), available at: https://www.ombudsman.europa.eu/en/recommendation/en/185538#_ftn18.

[4] This is also reflected in the Commission’s ‘Better Regulation Guidelines’ that set out that relations with stakeholders are governed by four principles, including the principle to “make the consultation process and how it has affected policymaking transparent to those involved and to the general public’: https://commission.europa.eu/system/files/2021-11/swd2021_305_en.pdf (see Chapter II, point 3.).

[5] See, for example, https://www.clientearth.org/media/l05dyfl2/nature-restoration-law_firstanalysis_august2022.pdf.

[6] Judgment of the General Court of 22 March 2018, De Capitani v Parliament, T-540/15, paragraph 120: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62015TJ0540&qid=1712587676840.

[7] Documents 1 to 3.

[8] Documents 4 to 7.

[9] Client Earth v Commission (see footnote 3 above).

[10] We note that the documents at issue contain personal data of individuals. This information may reasonably be redacted in accordance with Article 4(1)(b).

[11] https://www.consilium.europa.eu/en/meetings/env/2024/06/17/.