The background to the complaint

The dispute between the complainant and the Commission

1. The complainant, a global organisation which campaigns for the protection and conservation of the environment, requested the European Commission to grant it access to certain documents concerning the two additional reactors planned to be constructed at the site of the Cernavoda nuclear power plant in Romania (hereafter 'Cernavoda NPP')[1].

2. The Commission rejected the request for access and the complainant contested the Commission's decisions to that effect.

The factual background of the case

3. On 30 June 2009, the Commission received from the Romanian authorities and the investor company a notification for the investment project regarding the construction of new reactors at the Chernavoda NPP. This notification was submitted to the Commission in accordance with Article 41 of the Euratom Treaty.

4. On 18 September 2009, the complainant met with the Commission and other stakeholders to discuss the project. On the same day, it filed a request for access to the "copy of the notification of the Cernavoda 3, 4 nuclear power project in Romania to the European Commission under Euratom Article 41, as well as all related documentation and correspondence".

5. On 6 October 2009, the Commission refused access to the requested documents on the grounds that "the notification procedure under Article 41/43 Euratom Treaty concerning the above-mentioned investment project [was] yet to be finalised". The Commission added that its services would "undertake all efforts to receive the needed consent under Article 44 Euratom Treaty, as far as the publication of the project [was] concerned, from both the Romanian government and the concerned company [...]".

6. Also on 6 October 2009, the complainant submitted a confirmatory request for access. It argued that Article 44 of the Euratom Treaty did not prevent the Commission from publishing the notification before the relevant procedures had been finalised.

7. On 3 November 2009, the Commission replied to the complainant's confirmatory application, reiterating its initial decision that access could not be granted.

8. On 13 January 2010, the complainant submitted the present complaint to the Ombudsman. On 29 January 2010, it sent further information relating to the present case.

The legal framework

9. The Lisbon Treaty entered into force on 1 December 2009. As noted above, the present complaint was submitted in January 2010. However, the complainant's initial and confirmatory requests for access and the Commission's decisions on these requests date back to the period prior to the entry into force, on 1 December 2009, of the Lisbon Treaty and, therefore, of the Treaty on the Functioning of the European Union (TFEU). In its complaint to the Ombudsman, the complainant contested the decisions taken by the Commission on these requests. Consequently, the legal framework applicable to the present dispute is the one which was in force prior to the entry into force of the Lisbon Treaty. It is this legal framework that the following paragraphs will set out.

The Euratom Treaty

10. Under the Euratom Treaty, any new investment related to nuclear activities has to be communicated to the Commission, which should send its opinion (hereafter 'the viewpoint') to the Member State concerned. This procedure is laid down in Articles 41 to 44, which read as follows:

Article 41

Persons and undertakings engaged in the industrial activities listed in Annex II to this Treaty shall communicate to the Commission investment projects relating to new installations and also to replacements or conversions which fulfil the criteria as to type and size laid down by the Council on a proposal from the Commission. (...)

Article 42

The projects referred to in Article 41 shall be communicated to the Commission (...) not later than three months before the first contracts are concluded with the suppliers or, if the work is to be carried out by the undertaking with its own resources, three months before the work begins. (...)

Article 43

The Commission shall discuss with the persons or undertakings all aspects of investment projects, which relate to the objectives of this Treaty. It shall communicate its views to the Member States concerned.

Article 44

The Commission may, with the consent of the Member States, persons and undertakings concerned, publish any investment project communicated to it.

The Treaty on European Union (TEU)

11. The general principle that decisions are "taken as openly as possible and as closely as possible to the citizen" is set out in Article 1 of the TEU.

The Treaty establishing the European Community (EC Treaty)

12. Article 255 of the EC Treaty provided that any citizen of the Union and any natural and legal person residing or having its registered office in a Member State shall have a right of access to documents in the possession of the Commission or other institutions.

13. Article 305(2) of the EC Treaty provided that the provisions of the EC Treaty shall not derogate from those of the Euratom Treaty.

Declaration 41

14. Declaration 41 attached to the Final Act of the Treaty of Amsterdam provides that "... the European Parliament, the Council and the Commission, when they act in pursuance of the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community, should draw guidance from the provisions relating to transparency, access to documents and the fight against fraud in force within the framework of the Treaty establishing the European Community".

Regulation 1049/2001

15. The principles, conditions and limits pertaining to the right of public access to documents are governed by Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents[2]. Recital 5 of Regulation 1049/2001 reads as follows:

"Since the question of access to documents is not covered by provisions of the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community, the European Parliament, the Council and the Commission should, in accordance with Declaration 41, attached to the Final Act of the Treaty of Amsterdam, draw guidance from this Regulation as regards documents concerning the activities covered by those two Treaties".

The Aarhus Convention and Regulation 1367/2006

16. The (former) European Community acceded to the Aarhus Convention in February 2005[3]. The Convention has been transposed into Union law by Regulation 1367/2006[4], which incorporates the three pillars of the Aarhus Convention into a single legal act. Article 3 of Regulation 1367/2006 provides that Regulation 1049/2001 applies to any requests by an applicant for access to environmental information held by the Union institutions and bodies.

17. Article 6(1) of Regulation 1367/2006, which concerns the limits of the right of access, reads as follows:

"As regards Article 4(2), first and third indents, of Regulation 1049/2001, with the exception of investigations, in particular those concerning possible infringements of [Union] law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment."

The subject matter of the inquiry

18. The Ombudsman opened an inquiry into the following allegations and claims:

(1) As regards the requested access to documents:

• The complainant alleges that the Commission wrongfully refused access to the documents it requested.
• The complainant claims that the Commission should, pursuant to Regulation 1049/2001, provide the broadest possible access to these documents.

(2) As regards the consent procedure:

• The complainant alleges that the Commission wrongfully delayed asking for consent from the Member State, persons and undertakings concerned in order to be able to publish the notification documentation and all the other project-related documentation produced pursuant to Articles 41-43 of the Euratom Treaty regarding the Cernavoda NPP project.
• The complainant claims that the Commission should start negotiations with the Member State, persons and undertakings concerned in order to obtain consent for the publication of these documents.

The inquiry

19. On 8 February 2010, the Ombudsman launched the present inquiry and requested the Commission to submit an opinion.

20. On 4 June 2010, the Commission submitted its opinion, which was forwarded to the complainant. On 29 June 2010, the complainant provided observations.

21. On 15 December 2010, the Ombudsman informed the complainant that the present case raised issues resembling those submitted by the complainant in the framework of complaint 2335/2008/VIK concerning a proposed nuclear investment project in Belene (Bulgaria). The Ombudsman thus considered that the relevant legal analysis in these two cases should be conducted in parallel[5].

The Ombudsman's analysis and conclusions

Preliminary remarks

22. In view of the relevance of the consent procedure to the question of the possible access to documents requested by the complainant, the Ombudsman considers it useful to examine the substantive and the procedural aspects of the present complaint together[6].

A. As regards the requested access and the consent procedure

Arguments presented to the Ombudsman

The Commission's position

23. In reply to the complainant's confirmatory application, the Commission specified that the following documents were covered by the request for access:

1. The notification of the project (received by the Commission on 29 June 2009);
2. The Commission's reply of 3 July 2009;
3. Note for the file dated 9 July 2009 concerning the notification of the investment project and the setting-up of an internal working group within the Commission;
4. Note for the file dated 9 July 2009 concerning the notification of the investment project;
5. Letter from the Commission to the investor dated 5 July 2009, requesting supplementary information;
6. Letter from the investor dated 19 August 2009;
7. Letter from the investor dated 15 September 2009.

24. The Commission took the view that the above documents could not be disclosed, because, at the time the complainant requested access, its decision-making process relating to the adoption of its viewpoint was "fully ongoing".

25. The Commission pointed out that nuclear power plants were highly sophisticated and technically complex installations and, as a result, the assessment of a nuclear investment project required a considerable amount of time and, in addition, had to be carried out by highly qualified experts. The Commission thus considered that "without prejudice to the position of the Romanian authorities and the investor on possible disclosure, the publication of the requested documents at such an early stage would seriously hamper the assessment of the project and therefore seriously undermine the Commission's decision-making process".

26. The Commission further advanced the argument that notifications concerning nuclear investments sent to it in accordance with Article 41 of the Euratom Treaty contained very "sensitive information", both as regards issues of security and safety and as regards the commercial interests of the undertakings involved. It was for these reasons that Article 44 of the Euratom Treaty stipulated that the Commission "may publish" the investment project communicated to it "with the consent of the Member States, persons and undertakings concerned".

27. In the present case, all the documents covered by the complainant's request for access contained information transmitted to the Commission through the notification of the Cernavoda NPP. Consequently, the Commission considered that all these documents fell within the scope of Articles 41 to 44 of the Euratom Treaty and the publication of such information was conditional on the consent of the Member States, persons and undertakings concerned.

28. According to the institution, putting in the public domain highly technical data, for which specific rules on secrecy under the Euratom Treaty generally applied and which had not yet been fully assessed and clarified, would risk creating a distorted view of the intended investment project. It would also generate public debate before the Commission was in a position to form its opinion on this project.

29. In this context, the Commission provided the following further explanations:

"...disclosure of the requested documents, in addition to divulging very sensitive information covered by the abovementioned provisions of the Euratom Treaty, would interfere with the Commission's current internal discussions and deliberations in which [the] Commission's services must be free to express their views free from external influences and pressures. This interest, expressly recognised under Article 4(3) of Regulation 1049/2001, needs also to be protected in this case under the Euratom Treaty since it is necessary for the Commission to safeguard its ability to carry out its tasks in this sensitive field of activity. Also, it is obvious that publication of the requested documents, at this stage of the process, would adversely affect the ongoing discussions with the investor on the investment project, which, in the end, could harm the ability of the Commission to receive all the information which is necessary in order to take a well founded Point of View".

30. As regards the note concerning the establishment of its internal working group,[7] the Commission pointed out that it contained the names of the civil servants participating in this group. In view of the sensitivity of the matter, the institution considered that it must take all the necessary measures in order to avoid exposing its officials to undue external pressure, which could seriously undermine its decision-making process. Revealing the names of the officials would, in the Commission's view, facilitate and encourage criticism against them and ultimately limit the Commission's capacity to adopt its final position free from external influences.

31. For these reasons, the Commission considered that disclosing the requested documents at that point in time would seriously undermine its decision-making process. Therefore, no access was granted.

32. In view of the above, the Commission also refrained from seeking the consent of the Member State and the investor for the publication of the investment project. In the Commission's view, requesting consent at this point in time would have been premature. The institution considered that the best way to proceed was to seek the consent at a time when the publication would no longer harm any legitimate interest. The Commission expressed readiness, once it had adopted its viewpoint, to ask the Romanian authorities and the investor for their consent with a view to publishing the investment project.

The complainant's observations

33. The complainant recalled that the Commission had organised a meeting with stakeholders[8], which was also attended by the complainant's representative(s). This was an indication that the Commission was willing to discuss the Cernavoda NPP with stakeholders and that the institution values public participation in the process. However, the complainant was put in a situation in which it was obviously unable to provide the necessary feedback, since the Commission had simply refused access to the pertinent documentation. In these circumstances, the public participation process could obviously not take place in optimal conditions. If participants are unable to express their opinions on issues of possible importance covered by the said notification, the discussions could only have a limited focus.

34. Bearing in mind the role that civil society plays in procedures of this kind, the Commission's position that disclosing the documents concerned to the complainant would interfere with its internal deliberations and moreover create external influences and pressures was contrary to the Aarhus Convention, to which the EU is a signatory. The complainant recalled that the preamble of the Aarhus Convention provides that improved access to information and public participation in decision-making enhances the quality of decisions, contributes to public awareness of environmental issues and gives the public an opportunity to express its concerns. It likewise enables public authorities to take due account of such concerns.

35. The complainant added that if the requested information were to be placed at the public's disposal, the Commission would not be plagued with irrelevant feedback and questions from the public. The present situation, however, forced the public to cover, in its remarks and input, all issues it could think of, instead of making specific comments emphasising the aspects of particular relevance to the notification at issue. If the notification were to be disclosed to the public, it could be expected that the latter would provide constructive information for the Commission's opinion-forming process. In the complainant's view, any other interpretation constituted a distorted vision of the proper functioning of democratic governance and the role of the public in it. It added in this regard that an open administration enjoys greater legitimacy and is more effective and more accountable to the citizens in a democratic society.

36. The complainant submitted that it was not aware of anyone that would put undue pressure on the Commission's services concerning the relevant project. It stressed that it certainly never attempted to influence the Commission or limit its freedom to form its own opinion. The complainant requested the relevant documents with a view to presenting its opinion to the Commission. It always communicated with the Commission in a fully transparent, open and honest way. Furthermore, the complainant was registered in the Commission's lobby register, revealing its full organisational and financial background.

37. The Euratom Treaty did not provide that the investment project communicated to the Commission may only be published after the Commission has finalised its viewpoint. The complainant's understanding was that the Euratom Treaty did not in any way prohibit the publication of the notification and the related documentation as soon as the consent from the Member State, persons and undertakings involved had been given.

38. The complainant consequently maintained its view that the Commission should either request consent for the publication of the notification under Article 41 Euratom Treaty from the Member State and the investor directly after receiving it, or publish the documentation when such consent was not actively refused. Furthermore, if a Member State, person or undertaking involved decides not to consent to the publication of documentation, the reasons for this refusal should be made public.

39. The complainant submitted that, on 7 June 2010, the Commission informed it that it had requested the Romanian authorities and the investor concerned to consent to the publication, but that the company in question had refused disclosure of the relevant documentation. The Commission did not specify whether the refusal concerned the full documentation or only parts of it. The institution also failed to inform the complainant of the reasons invoked by the company.

40. The complainant expressed the view that the Commission's comment that the documents were, by their nature, very sensitive was irrelevant. Sensitivity was not foreseen either in Article of the 44 Euratom Treaty, nor in the exceptions laid down in Article 4 of Regulation 1049/2001. In any event, the more sensitive the material, the more importance should be attributed to the proper weighing of the public interest.

41. The complainant acknowledged, however, that the documents covered by its access request may indeed contain information of a sensitive nature from a commercial or a security perspective that might fall under the exceptions laid down in Regulation 1049/2001. Therefore, it did not deny the Commission the right to keep certain data confidential, in accordance with the exceptions laid down in Regulation 1049/2001. It further considered that the Commission should be allowed to black out the confidential parts, but that the remaining parts should not be withheld from the public. For example, the Commission could have blacked out the names of its officials and provided access to the rest of the document.

42. As for the exception invoked by the Commission, which concerns situations where an institution has not yet taken a decision[9], the complainant referred to the overriding public interest in the publication of these documents. The complainant recalled that the Commission had acknowledged in the past that public participation played a positive role in forming a balanced and well-informed view. The legitimate concerns put forward by organisations such as the complainant could clearly contribute to a more balanced formulation of the Commission's viewpoint. The complainant failed to see how public knowledge of the content of the notification could in any way impair the ability of the Commission's services to express their views freely.

43. The complainant recalled that Article 4(3) of Regulation 1049/2001 provides that the relevant exemptions should be weighed against the public interest. The Aarhus Convention likewise sets out that the "grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure". The complainant reiterated its view that the public interest was best served by a broad input from the public and from NGOs into the process that leads to the crystallisation of the Commission's viewpoint, issued under Article 43 of the Euratom Treaty.

44. The complainant considered that the Commission's statement that the assessment of nuclear investment projects required considerable time and had to be performed by highly qualified experts was true as regards the Commission, but it was even more accurate in relation to a non-governmental organisation like itself. When considered from that perspective, in order to obtain meaningful feedback from the public, the Commission had to publish the relevant documentation as soon as possible, so that the public could also be given some time to gather sufficient expertise for its input. The Commission's refusal to give access to the requested documentation in reality hindered the assessment of the project.

45. According to the complainant, the Commission's experts were completely dependent on the input from the project promoter and a small circle of experts that the institution had at its disposal. Therefore, only a broader access to the documentation could enable civil society to play its role of public watchdog and help the Commission to expand its knowledge base. By not providing the information that had been requested, the Commission would appear to have shown that it was either wary of, or not interested in, holding such a public debate.

46. The complainant disagreed with the Commission's position that requesting consent for access before it had adopted its viewpoint was "premature" and that the best way to proceed was to seek this consent when the publication "would no longer harm any legitimate interest". The Commission did not put forward any legitimate reason for its attitude, apart from suggesting that its services should not have to listen to too many opinions on the project at issue. The complainant found the Commission's approach to be fundamentally harmful to the public interest.

47. The complainant noted that certain documents, covered by its request for access were the Commission's own documents[10]. In its view, on the basis of Article 42 of the EU Charter of Fundamental Rights, which concerns the right of access to public documents[11], these documents have to be provided "without further discussion".

48. Finally, the complainant invoked the right to be heard, laid down in Article 41 of the Charter. It argued that the Commission's viewpoint constituted an EU assessment of the proposed nuclear power installation, which in essence served as an EU "green light" for the project. In its view, it was necessary to oppose the construction of new nuclear power plants, since such projects negatively influenced the general well-being and the quality of life of individuals. The complainant thus considered that the Commission's viewpoint on nuclear power installations was affecting the complainant and its members personally. Consequently, it should have been given an opportunity to be heard in a meaningful way before the Commission issued its viewpoint.

49. In view of the above considerations, the complainant concluded that the grounds for refusing access, which the Commission invoked, were illegitimate and that the institution wrongly delayed asking for consent for the publication. The complainant finally remarked that the Commission's interpretation of the Euratom Treaty was stuck in the "20th century paradigm of limited expertocracy" and that the institution failed to realise that the role of the public had substantially evolved since 1957, when the Euratom Treaty was signed.

The Ombudsman's assessment

Concerning the substantive aspect

50. The Ombudsman notes at the outset that the complainant's request for access covers: (i) third-party documents, namely, the notification under Article 41 of the Euratom Treaty and the related letters from the project investor[12]; and (ii) the Commission's pertinent correspondence and internal notes[13].

51. On the basis of its submissions, the Ombudsman understands the Commission's position to comprise the view that access to the requested documents could only be granted if: (i) none of the exceptions set out in Regulation 1049/2001 are applicable; and (ii) the Member State, person or undertaking concerned has consented to disclosure. In the following paragraphs, the Ombudsman will address each aspect in turn.

As regards the exceptions set out in Regulation 1049/2001:

52. The Ombudsman recalls that, in the framework of complaint 2335/2008/VIK, he examined the legal framework applicable to such requests for access before and after the entry into force of the Lisbon Treaty. In his assessment, he noted that, on the basis of Declaration 41 (annexed to the Final Act of the Treaty of Amsterdam), even before the entry into force of the Lisbon Treaty, the legislator strongly encouraged the Commission, when dealing with requests for access to documents under the Euratom Treaty, also to consider the legislation governing transparency and access to documents developed under (what was then) the EC Treaty.

53. In the present case, the Commission justified its position on the basis of Article 4(3) of Regulation 1049/2001 which provides as follows: "access to a document, drawn up by an institution for internal use or received by an institution, which related to a matter where the decision has not yet been taken by the institution, shall be refused if a disclosure of a document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure". The Commission considered that the interest protected by Article 4(3) of Regulation 1049/2001 must equally be protected under the Euratom Treaty, because it was necessary for the institution to safeguard its ability to carry out its tasks in such a sensitive field of activity.

54. Given that the Commission invoked the exception laid down in Article 4(3) of Regulation 1049/2001, the Ombudsman will examine whether the conditions laid down in Article 4(3) were indeed fulfilled. These conditions are as follows: (i) whether the reasons relied upon by the Commission in refusing access to the documents in question demonstrate that such access would have seriously undermined the institution's decision-making process; and (ii) whether there is no overriding public interest in the disclosure of the requested documents.

55. As regards the first of the above conditions, the Ombudsman recalls that, in accordance with the settled case-law, the institution must show that the access in question is likely, specifically and actually, to undermine the interest protected by a particular exception, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical[14].

56. The Commission stated that releasing the documents in the public domain would "adversely affect the ongoing discussions with the investor in the investment project, which, in the end, could harm the ability of the Commission to receive all the information which is necessary in order to take a well founded Point of View. The Commission also submitted that it would be subject to "external influences and pressures" and that the disclosure would "create a distorted image of the intended investment project and would generate public debate even before the Commission was in a position to form its opinion". The complainant disagreed with the Commission's position.

57. The Ombudsman considers that the Commission's above arguments are not entirely convincing for the following reasons:

(i) The argument that, due to the possible disclosure, the investor might not be inclined to provide all the information to the Commission appears doubtful, since Article 41 of the Euratom Treaty makes the communication of projects such as the one at issue in the present case mandatory and it is in the investor's interest to obtain the Commission's positive opinion on the project. It thus appears logical to assume that the investor would be eager to provide the Commission with all the information the latter might need in this regard.

(ii) The Ombudsman considers that it is to be expected that making the relevant documents public would generate public debate regarding the proposed investment or make such a debate more focused. However, in his view, the Commission's submission that releasing the documents would make the institution subject to undue external influences and pressures is not supported by any properly reasoned argument. It would rather seem that the Commission's argument to that effect is based on a purely hypothetical assumption.

(iii) In the Ombudsman's view, the possibility that disclosing information concerning a proposed investment could lead to a distorted view of the project cannot be excluded, if the information disclosed is indeed seriously incomplete. It should be noted, however, that the Commission did not argue that the information submitted by the Romanian authorities and the investor concerned was incomplete. It only noted in this regard that the discussions with the investor were ongoing and that its decision-making process was not yet finalised.

(iv) The Commission finally referred in general terms to the sensitive nature of the information that was requested, but the institution did not claim, let alone establish, that the present complaint concerned a request for access to 'sensitive' documents, in accordance with the definition provided for in Article 9(1) of Regulation 1049/2001.

58. In any event, even if one were to consider that the Commission's above arguments were sufficient in order to establish that granting access would seriously undermine the institution's decision-making process, the interest protected under Article 4(3) could only successfully be invoked if there is no overriding public interest in disclosure (the second of the above conditions). It is manifest that there is a great public interest in new nuclear energy projects and installations, not only in the EU, but all over the world[15]. However, it is not apparent from the Commission's decision refusing access that it actually conducted the balancing test required by Article 4(3) of Regulation 1049/2001 in order to assess whether, in the present case, granting access to the relevant documents could be justified on the basis of an overriding public interest in disclosure.

59. Lastly, the Commission did not consider the possibility of partially releasing the documents in question[16]. It should be recalled in this context that the complainant claimed that the Commission should provide "the broadest possible access to these documents". In addition, the complainant clearly acknowledged that granting access to certain parts of the requested documents might indeed not be possible and that it would be willing to receive only those parts that were not covered by the relevant exceptions laid down in Regulation 1049/2001. More specifically, the complainant noted, for example, that the Commission should be allowed to black out the confidential parts, such as the names of its officials involved in the process, which appear in one of the documents requested. The remaining parts of the document(s) should, however, be provided. The Ombudsman takes the view that, in order to comply with its duty to draw guidance from Regulation 1049/2001, the Commission ought to have also examined whether partial access was possible as regards each of the documents requested.

60. In view of the foregoing, the Ombudsman concludes that the Commission did not put forward convincing reasons in support of its position that the interest protected under Article 4(3) of Regulation 1049/2001 prevented it from granting access.

61. The Ombudsman finally notes that the complainant also invoked Article 41 of the EU Charter of Fundamental Rights and argued that, by not properly consulting it in the process leading up to the Commission's viewpoint, which in the complainant's view would have required granting access to the relevant documents, the Commission in essence violated its right to be heard. The complainant submitted in this context that nuclear power plants negatively influence the general well-being and the quality of life of individuals and that the Commission's viewpoint would therefore affect both itself and each of its members individually. Apart from the fact that the EU Charter of Fundamental Rights was not yet legally binding when the complainant made its request for access, it should be stressed that the present case concerns a request for access to documents that was made on the basis of Regulation 1049/2001. However, Regulation 1049/2001 concerns requests for public access, and applicants therefore do not have to indicate any reasons for their requests (see Article 6(1) of Regulation 1049/2001). Whether or not an applicant has a right of access to certain documents on another legal basis is therefore irrelevant in so far as the assessment of an institution's handling of a request based on Regulation 1049/2001 is concerned. There is, therefore, no need for the Ombudsman to assess whether the Commission should have granted the complainant access in order for the latter to be able to exercise a right to be heard. However, the complainant is free to address itself to the Commission if it considers that access should be granted on the said basis.

As regards the consent of the Member State, person or undertaking concerned:

62. In arguing that access could only be granted if the Member State, person or undertaking concerned has consented to disclosure, the Commission relied on the requirement for consent laid down in Article 44 of the Euratom Treaty. The institution submitted that all the documents covered by the complainant's request for access contained information which was included in the project notification. It argued, therefore, that, pursuant to Article 44 of the Euratom Treaty, disclosure of the documents requested was conditional upon the said consent being given.

63. The Ombudsman recalls that the Commission's decisions on the complainant's access request were made prior to the entry into force of the Lisbon Treaty on 1 December 2009. At that point in time, the applicability of (what was then) Article 255 of the EC Treaty, which is the legal basis for Regulation 1049/2001, to documents produced under the Euratom Treaty was not beyond doubt[17]. In particular, it was far from clear whether such documents could be disclosed without the consent of the Member State, person or undertaking concerned, as set out in Article 44 of the Euratom Treaty. The Ombudsman considers that, following the entry into force of the Lisbon Treaty, the Commission is now under an obligation to consider Article 15 of the TFEU[18] when examining requests for access to documents such as those referred to in Article 44 of the Euratom Treaty[19]. In the Ombudsman's view, this means that, after the entry into force of the Lisbon Treaty, the Commission would be no longer entitled to interpret Article 44 of the Euratom Treaty in isolation. Instead, Article 44 should be read in conjunction with Article 15 of the TFEU and Regulation 1049/2001, but also with the Union's obligations stemming from the Aarhus Convention.

64. It should be recalled, however, that, at the time when the Commission decided on the complainant's access request, the Lisbon Treaty had not yet entered into force. Moreover, in the course of the present inquiry, it became clear that no consent for disclosure was given by the project investor.

65. Taking into consideration the legal framework applicable at the time when the Commission decided on the request at issue, the Ombudsman concludes that no further inquiries into the substantive aspect of the case are justified. If the complainant wishes to pursue this matter further and rely on the rules applicable after the entry into force of the Lisbon Treaty, it should submit a fresh application for access to the Commission.

Concerning the procedural aspect

66. In addition to contesting the Commission's substantive assessment, the complainant alleged that the institution unduly delayed requesting consent from the originator of the notification. The Ombudsman recalls that he has addressed this issue in the framework of complaint 2335/2008/VIK submitted by the same complainant. He, therefore, takes the view that there is no need to pursue this allegation further in the present case.

67. As for the complainant's related claim that the Commission should start negotiations with the Member State, persons and undertakings concerned in order to obtain their consent for the publication of the documents requested, the Ombudsman notes that the complainant informed him in its observations that the Commission had subsequently attempted to obtain such consent, but without success[20]. The Ombudsman, therefore, concludes that the Commission appears to have done what the complainant claimed it should do.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There are no grounds for further inquiries into the present complaint.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 4 July 2012

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[1] Cernavoda Units 3 and 4.

[2] Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, p. 43.

[3] Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (2005/370/EC), OJ 2005 L 124, p. 1.

[4] Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, OJ 2006 L 264, p. 13.

[5] The Ombudsman's investigation in complaint 2335/2008/VIK is still ongoing. Once finalised, the Ombudsman's conclusions will be published on his website.

[6] See paragraph 18 above.

[7] See paragraph 23, point 3.

[8] The meeting took place on 18 September 2009.

[9] See Article 4(3) of Regulation 1049/2001.

[10] The complainant referred to documents 2, 3, 4 and 5, listed in paragraph 23.

[11] Article 42 (Right of access to documents) provides that "any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents".

[12] See documents 1, 6 and 7 listed in paragraph 23.

[13] See documents 2, 3, 4 and 5 listed in paragraph 23.

[14] See, for instance, Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69.

[15] Following the incident at the Fukushima nuclear power plant in 2011, this interest has received additional momentum.

[16] Article 4(6) of Regulation 1049/2001 provides that "if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released".

[17] See paragraph 52.

[18] Article 15 of the TFEU replaced Article 255 of the EC Treaty.

[19] See Article 106a(1) Euratom Treaty.

[20] See also paragraph 39.