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Decision in case 652/2020/MIG on the European Commission’s refusal of public access to correspondence with the United Kingdom government concerning the nomination of a candidate for commissioner

The case concerned a request for public access to four letters which the European Commission had exchanged with the United Kingdom (UK) government, concerning the UK’s failure to nominate a candidate for commissioner following the European elections. The Commission refused access on the grounds that there was an ongoing infringement procedure against the UK concerning the matter.

The Ombudsman proposed as a solution that the Commission grant access to the documents at issue, given the changed situation, since the UK has left the EU. The Commission accepted the Ombudsman's proposal and the case was closed as resolved.

Background to the complaint

1. European Commissioners are appointed every five years, following the European elections, with each EU Member State obliged to nominate at least one candidate for commissioner.

2. Following the European elections in May 2019, the government of the United Kingdom (UK) did not nominate a candidate for commissioner, even though it remained an EU member until 31 January 2020.

3. As the UK government did not to put forward a candidate for commissioner, the Commission considered that the UK was failing to fulfil its obligations under the EU Treaties. The Commission therefore opened a so-called infringement procedure against the UK in November 2019.

4. Shortly after that, the complainant requested public access[1] to the correspondence exchanged between the Commission and the UK government on the matter.

5. The Commission identified four letters as falling within the scope of the complainant’s request. It refused to give the complainant access to those letters, invoking an exception provided for under the EU’s rules on public access to documents[2], stating that doing so could undermine the ongoing infringement procedure.

6. Dissatisfied with the Commission’s response, the complainant turned to the Ombudsman in April 2020.

7. The Ombudsman opened an inquiry and inspected the documents at issue.

The Ombudsman's proposal for a solution

8. The Ombudsman noted that the UK had left the EU on 31 January 2020. She thus considered that the purpose of the infringement procedure, namely to induce the UK to nominate a candidate for commissioner could no longer be attained.

9. The Ombudsman also took the view that the letters concern a matter of public interest, given the consequences of the UK leaving the EU, and that the letters should therefore be disclosed.

10. On 10 June 2020, the Ombudsman made a proposal for a solution[3], asking the Commission to disclose the four letters at issue, taking into account the changed circumstances.

11. On 19 September 2020, the Commission accepted[4] the solution proposed and disclosed the letters, redacting only limited personal data.

12. The Ombudsman welcomes the Commission’s positive response to her proposal for a solution and considers that the complaint has been resolved.

Conclusion

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

The Commission has settled the complaint by giving the complainant the widest access possible to the four letters at issue.

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

 

Emily O'Reilly
European Ombudsman

28/09/2020

 

[1] Under Regulation 1049/2001 on public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[2] In accordance with Article 4(2), third indent of Regulation 1049/2001.

[3] The full text of the Ombudsman’s proposal for a solution is available at: https://www.ombudsman.europa.eu/en/solution/en/132891.

[4] The full text of the Commission’s reply is available at: https://www.ombudsman.europa.eu/correspondence/132892.