Background to the complaint

1. The European Defence Agency (EDA) is an EU agency that supports the Council of the EU (‘Council’) and EU Member States in their efforts to improve the EU’s defence capabilities.

2. The activities of the EDA are financed by contributions of the participating Member States (all EU Member States except Denmark). The decision-making body of the EDA is the Steering Board, consisting of national Ministers of Defence from those Member States. The EDA’s statute, seat and operational rules are defined in a Council Decision.^[1]

3. The complainant, who works for an online investigative journalism platform, requested the EDA to provide public access to the minutes of expert groups' meetings between 1 January 2021 and 8 May 2022.

4. The EDA replied that it had identified the documents as falling under the scope of the request. However, the EDA refused access to all of the documents requested in order to protect defence and military matters^[2], the commercial interest of a natural or legal person, including intellectual property^[3], personal data^[4], and its ongoing decision-making^[5].

5. Dissatisfied with the EDA’s refusal decision, the complainant turned to the European Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into the allegation that the EDA was wrong when it decided to refuse public access to the minutes of its working bodies.

7. In the course of the inquiry, the Ombudsman inquiry team inspected a sample of the requested documents, given the substantial amount of documentation concerned. It also met with EDA representatives to discuss the actions it had taken to deal with the complainant’s request for public access. The Ombudsman produced an inspection meeting report[6] on which the complainant subsequently provided comments[7].

Arguments presented to the Ombudsman

By the complainant

8. The complainant said that the public has the right to know how the EU is dealing with the security of citizens and with public funds. According to the complainant, the documents in question contain crucial information on EU defence policy and funding, which should therefore be made available to the public.

9. The complainant also said that disclosure of the documents, or at least part of them, is in the public interest as it would provide some accountability that military plans serve the public good and not only the economic interests of security and defence companies.

By the EDA

10. The EDA explained that it makes general information on its working bodies public on its website to provide accountability for its activities.[8] This information was shared with the complainant in the EDA’s initial decision based on his request for public access.

11. The EDA understood the scope of the complainant’s public access request to include the meeting minutes of the EDA’s 76+ working bodies[9] from 1 January 2021 to 10 May 2022. Some of these working bodies meet regularly, others sporadically, according to the needs of the moment as expressed by the participating EU Member States and the Council. The EDA estimated that the requested documentation would amount to over 9000 pages.[10] Due to the high volume of documents and pages involved, the EDA considered that it was not feasible for it to conduct an individual assessment of all of the documents within the deadlines established to respond to access to documents requests.

12. Thus, while a preliminary review of the documentation took place in order to verify what documents fell within the public access request, the view as regards whether access could be given was taken on the basis that all the documents were of the same nature.

13. The EDA refused public access to the documents based on various exceptions provided for in applicable EU law.[11] The exceptions relied on by the EDA concern the protection of defence and military matters[12], the commercial interest of a natural or legal person, including intellectual property[13], personal data[14], and its ongoing decision-making[15]. The EDA considered providing partial access, but concluded that this could not be granted without prejudicing the interests protected.

The Ombudsman's assessment

14. Defence and military information is specifically protected under the EU legislation on public access to documents.[16] EU institutions, bodies, offices and agencies have wide discretion in justifying the application of the exception related to military and defence matters.[17]

15. The inspection of a sample of minutes of EDA working bodies’ meetings confirmed that these contain sensitive information on defence and military matters throughout. Specifically, the inspected documents relate to discussions and exchanges on defence and military matters between technical experts from participating Member States. In some instances, technical experts from defence and security industry groups also participated. The documents contain, specifically, information about the actions and plans of the participating Member States, as well as the action and plans of defence industry companies.

16. The documents also contain personal data of the meeting participants, specifically, names and contact details.

17. The EDA confirmed that the nature of all the requested documents is similar, insofar as they all should contain information relating to sensitive defence and military matters.

18. The Ombudsman reiterates that the right of access to documents is a fundamental right[18] and that the application of any exception justifying the refusal to grant public access to documents must be narrowly construed and restrictively applied. 

19. Having regard to the content of the documents inspected by the inquiry team, the Ombudsman is of the view that the approach of the EDA in applying the exceptions cited was reasonable.

20. However, in cases involving public access requests to a very long document or to a very large number of documents, the EDA should seek to find a fair solution with applicants[19]. Where the EDA, as part of a fair solution, proposes to base its assessment on a sample of the documents requested, the EDA should clearly communicate and explain this to applicants. The EDA should provide applicants with an overview of the documents falling within the scope of the request, and either, propose that the EDA choose a representative sample or alternatively that applicants choose a reasonable sample of those documents. Where used, it is incumbent on the EDA to conduct an individual assessment of the documents falling within the sample in order to establish if public access can be granted to the documents requested; whether any of the exceptions apply and if so, whether the risk is actual and specific, reasonably foreseeable and not hypothetical; where relevant to balance any overriding public interest; and at all times to provide adequate reasoning to applicants. The Ombudsman will make a corresponding suggestion for improvement to the EDA below.

21. The complainant insists that the public has a right to know how the EU is dealing with the security of citizens and with public funds. The Ombudsman notes that the EDA makes information on its working bodies available pro-actively on its website. She encourages the EDA to make public as much information as possible within the legal framework that applies.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration in the EDA’s refusal to give public access to the minutes of the meetings of its working bodies.

The complainant and the EDA will be informed of this decision.

Suggestion for improvement

Where the EDA, as part of a fair solution, proposes to base its assessment on a sample of the documents requested, the EDA should clearly communicate and explain this to applicants. The EDA should provide applicants with an overview of the documents falling within the scope of the request, and either, propose that the EDA choose a representative sample or alternatively that applicants choose a reasonable sample of those documents.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 30/01/2023

 

[1] See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015D1835.

[2] Article 4(1)(a) second indent, see the link to regulation 1049/2001 in footnote 2.

[3] Article 4(2), first indent.

[4] Article 4(1)(b).

[5] Article 4(3).

[6] See: Report on the inspection of documents and on the meeting of the European Ombudsman inquiry team with the European Defence Agency’s representatives | Correspondence | European Ombudsman (europa.eu)

[7]  See: https://www.ombudsman.europa.eu/en/doc/correspondence/en/165343.

[8] See for information on the EDA’s expert groups: https://eda.europa.eu/who-we-are/expert-groups and on CapTechs in particular: https://eda.europa.eu/what-we-do/research-technology/capability-technology-areas-(captechs).

[9] Namely 14 Capability Technology Areas (referred to as ‘CapTechs’), 27 Project teams (referred to as ‘expert groups’), and approx. 35 other/ad hoc groups (with further sub-formations).

[10] It was estimated that, on average, each working body met six times in the reference period. Furthermore, based on a sample of meeting minutes reviewed, it was estimated that the minutes are, on average, 20 pages long.

[11] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. See: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049. Regulation 1049/2001 applies to documents held by the EDA by virtue of Article 30 of its Council Decision referred to in footnote 1.

[12] Article 4(1)(a) second indent, see the link to regulation 1049/2001 in footnote 2.

[13] Article 4(2), first indent.

[14] Article 4(1)(b).

[15] Article 4(3).

[16] See footnote 12.

[17] C-266/05, Sison v Council, para 46 & T-31/18 DEP - Izuzquiza and Semsrott v Frontex, paras 63 - 65, as regards Article 4(1)(a), second indent (the ground for refusal related to defence and military matters).

[18] See Article 42 of the Charter of Fundamental Rights of the EU

[19] Article 6(3) of Regulation (EU) 1049/2001.