Dear Mr H.,

On 21 July 2001, you made a complaint to the European Ombudsman against the European Commission concerning the refusal of your confirmatory application for access to certain documents relating to the Commission's dealings with the Transatlantic Business Dialogue (TABD). You complain on behalf of Corporate Observatory Europe, a Netherlands-based NGO.

The Ombudsman received the complaint on 2 August 2001. On 3 August 2001, you sent further information by fax. On 4 September 2001, I forwarded the complaint to the President of the Commission. On 21 November 2001, the Commission sent its opinion. On 4 December 2001, I forwarded the opinion to you with an invitation to make observations, which you sent on 19 December 2001.

On 27 February 2002, I requested further information from the Commission, with a deadline for reply of 30 April 2002. This deadline was longer than normal in order to allow the Commission to take into account the new legal framework governing public access to Commission documents. The Commission replied to the request on 23 April 2002. On 3 May 2002, I forwarded the opinion to you with an invitation to make observations, which you sent on 14 June 2002.

On 27 June 2002, I addressed a draft recommendation to the Commission and on the same day informed you of this action by letter. On 16 October 2002, the Commission sent its detailed opinion on the draft recommendation. I forwarded the detailed opinion to you with an invitation to make observations, which you sent on 28 November 2002.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

In July and August 2001, Mr H. complained against the Commission on behalf of Corporate Observatory Europe, a Netherlands-based non-governmental organisation. The complaint is against the Commission's refusal to give to access to certain documents relating to the Commission's dealings with the Transatlantic Business Dialogue (TABD). The complainant requested access to the documents under Commission Decision 94/90.

The documents in question are briefing notes of the Commission delegations to the Mid-Year Meeting of the TABD held in Washington on 10 May 1999 and the TABD Conference held in Berlin on 28-29 October 1999.

The complainant alleges that the Commission failed to give sufficient weight to the public interest in disclosure. To support the allegation, the complainant argues that the TABD and particularly its annual conference, is a forum where EU policies that later have a far-reaching impact on all European citizens are proposed and discussed. According to the complainant, the Commission should not keep essential documents related to its involvement in the forum secret. Proposals made by the US government and the private sector and the Commission's responses are an integral part of the Commission's decision-making process. These proposals are discussed at length with representatives of the business sector and it is therefore not legitimate to deny them to members of civil society.

The complainant claims access to the documents and also mentions that the case law of the Community courts requires the institutions to grant partial access where a document contains both confidential and non-confidential information.

THE INQUIRY

The Ombudsman forwarded the complaint to the Commission for an opinion. The Ombudsman requested that the Commission's opinion should take into account the length of time that has elapsed since the relevant TABD meetings took place.

The Commission's opinion

In summary, the Commission's opinion was as follows.

The briefings in question consist of two binders containing a number of elements such as steering notes, suggested speaking points, proposed draft communiqués, briefing notes for side-meetings with US government ministers as well as recommendations from the TABD to the Commission and the Commission services' comments and responses to those recommendations.

The Commission gave the complainant access to the Commission's comments and responses to the TABD's recommendations. However, steering notes, briefings for meetings with US government representatives, other comments by Commission staff and recommendations to the Commissioner are covered by the exception for protection of the confidentiality of the Commission's proceedings.

Having weighed the complainant's interest in obtaining these documents against the Commission's interest in preserving the confidentiality of its proceedings it was felt that the latter outweighed the former. Depending on the general context of the discussions and appropriate political discretion, the position taken by the Commissioner may not always entirely correspond to the advice and proposed speaking points. Therefore giving access to these documents would be inappropriate and misleading to the public. Moreover, disclosure would compromise or complicate relations with the US.

The complainant's argument that essential documents related to the Commission's involvement in the TABD are kept secret is incorrect. In fact, the complainant has been given access to all the TABD's recommendations to the Commission and all the Commission's opinions on and replies to those recommendations.

Proposals made by the US government are not made in writing and the Commission holds no documents with respect to these proposals.

The Commission's response papers to the TABD recommendations, to which the complainant has received access, cover the matters discussed between the Commission and the business sector. Since these documents were part of the briefings the complainant has, in effect been given partial access.

The fact that two years have now elapsed does not enable the Commission to release the documents as the issues and opinions contained in them are still valid.

The complainant's observations

In summary, the complainant's observations made the following points.

The complainant does not seek access to US government proposals but to all documents reflecting the Commission's reactions to TABD recommendations.

The Commission's opinion implies that the briefings prepared for the Berlin meeting have a different content from the Commission's official written replies to TABD, copies of which were sent to the complainant. This contradicts the argument that release of the official replies in effect gave the complainant partial access.

The briefings are essential for understanding the Commission's relationship with TABD and the role of this body in EC decision-making. They were prepared for presentation at a private sector conference and should be made available to other parts of civil society as well.

The Commission's argument that the documents do not necessarily constitute the Commission's final position is not relevant. The briefings form the background of Commission decisions that affect all citizens. Calling the release of these documents inappropriate or misleading to the public is merely patronising.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The Ombudsman therefore requested the Commission to respond to the points made by the complainant in his observations.

The Commission's second opinion

The Commission's second opinion included, in summary, the following points.

The Commission has released all documents requested by the complainant, except steering notes, advice, opinions and other comments from members of the Commission staff.

The documents to which access was denied only contain opinions and recommendations from members of staff, who would not feel free to give personal assessments on matters of policy if their views were to be disclosed to the public. Such a situation would seriously undermine the Commission's decision-making capacity. Moreover these documents shed no additional light on the positions taken by the Commission vis-à-vis TABD proposals. There is no real public interest in disclosure and the interest of keeping such documents internal prevails.

The time elapsed since the events for which the briefings were prepared does not enable the Commission to release the documents, as the opinions and recommendations contained in them could still be valid in future negotiations.

If the documents came into the public domain, personal views from members of staff could mistakenly be considered as reflecting the views of the Commission. Disclosure of the documents would therefore harm relations with the US. Public access must be denied where disclosure of the document concerned would undermine the protection of international relations.

The documents to which the complainant has been denied access have not been disclosed to representatives of the business sector. They are exclusively intended for internal use in the Commission and therefore there is no ground for the request to make them available for other parts of civil society.

There is no secrecy surrounding business recommendations and the Commission's position with respect to these recommendations. The complainant has access to the TABD's proposals to Governments, which are publicly available on the internet, and the Commission's responses have been disclosed to the complainant.

The complainant's observations

In summary, the complainant's observations were as follows.

The briefing notes are the only way to shed light effectively on the nature of the relationship between the Commission and the TABD. If they would reveal that TABD exerts undue power over the decision-making process it is essential that they be made available to the public.

Briefing notes are not simply personal opinions of Commission Staff. The complainant has previously obtained Commission briefing notes from the Multilateral Agreement on Investment negotiations at the OECD. These contain official Commission positions and shed far more light on how the process was conducted than documents available to the general public.

It is surprising that the Commission seems to consider the TABD conferences to be negotiations since they are organised by a private sector lobby group and have no role in the EU decision-making process under the Treaties. This makes the need for transparency more urgent and reinforces the right to get access to the documents.

Briefing notes are essential documents for understanding the policy making process. The Commission's view that there is no real public interest in disclosing them shows a lack of understanding for the democratic gap felt so strongly by EU citizens.

THE DRAFT RECOMMENDATION

By decision dated 27 June 2002, the Ombudsman addressed a draft recommendation to the Commission in accordance with Article 3 (6) of the Statute of the European Ombudsman. The basis of the draft recommendation was the following:

1 The legal framework

1.1 The complaint contests the Commission's refusal of access to certain documents. The request for access was made in December 1999 and the complainant's confirmatory application was refused in May 2000. The Ombudsman's examination of whether the Commission's refusal of access is an instance of maladministration will therefore be based on Decision 94/90(1) which was the applicable legal framework at the time.

1.2 From 3 December 2001, access to Commission documents is governed by Regulation 1049/2001(2) and by the detailed rules annexed to the Commission's rules of procedure by its Decision of 5 December 2001(3), which repealed Commission Decision 94/90. The Ombudsman considers, therefore, that reconsideration by the Commission of the complainant's application must be based on Regulation 1049/2001.

2 The arguments presented by the complainant and the Commission

2.1 The complainant contests the Commission's refusal to give access to all the briefing notes of the Commission delegations to the Mid-Year Meeting of the Transatlantic Business Dialogue (TABD) held in Washington on 10 May 1999 and the TABD Conference held in Berlin on 28-29 October 1999.

2.2 The complainant alleges that the Commission's refusal fails to give sufficient weight to the public interest in disclosure. According to the complainant, the TABD and particularly its annual conference, is a forum where EU policies that later have a far-reaching impact on all European citizens are proposed and discussed. The briefing notes are essential for understanding the Commission's relationship with TABD and the role of this body in EU decision-making. The notes were prepared for presentation at a private sector conference and should also be made available to other parts of civil society.

The complainant claims access to the documents and mentions that case law requires the institutions to grant partial access where a document contains both confidential and non-confidential information.

2.4 According to the Commission, the documents in question consist of two binders containing steering notes, suggested speaking points, proposed draft communiqués, briefing notes for side-meetings with US government ministers as well as recommendations from the TABD to the Commission and the Commission services' comments and responses to those recommendations. The Commission has released all documents requested, except steering notes, advice, opinions and other comments from members of the Commission staff.

The Commission argues that the documents to which access was denied contain only opinions and recommendations from members of staff, who would not feel free to give personal assessments on matters of policy if their views were to be disclosed to the public. This would seriously undermine the Commission's decision-making capacity. Moreover these documents shed no additional light on the positions taken by the Commission vis-à-vis TABD proposals. There is no real public interest in disclosure and the interest in keeping such documents internal prevails.

In addition, if the documents came into the public domain, personal views from members of staff could mistakenly be considered as reflecting the views of the Commission. Disclosure of the documents would therefore harm relations with the US. Public access must be denied where disclosure of the document concerned would undermine the protection of international relations.

The Commission also argues that the TABD's proposals to Governments are publicly available on the internet and the Commission's responses have been disclosed to the complainant. The documents to which the complainant has been denied access have not been disclosed to representatives of the business sector either. They are exclusively intended for internal use in the Commission and therefore there is no ground for the request to make them available for other parts of civil society.

As regards partial access, the Commission argues that the Commission's response papers to the TABD recommendations cover the matters discussed between the Commission and the business sector, to which the complainant has received access. Since these documents were part of the briefings the complainant has, in effect been given partial access.

Finally, the Commission argues that the time elapsed since the events for which the briefings were prepared does not enable the Commission to release the documents, as the opinions and recommendations contained in them could still be valid in future negotiations.

2.5 In observations, the complainant argued that briefing notes are not simply personal opinions of Commission staff. Other such briefings contain official Commission positions and shed more light on how the relevant process was conducted than documents available to the general public.

The complainant expressed surprise that the Commission seems to consider the TABD conferences to be negotiations, since they are organised by a private sector lobby group and have no role in the EU decision-making process under the Treaties. This makes the need for transparency more urgent and reinforces the right to get access to the documents.

According to the complainant, the Commission's view that there is no real public interest in disclosing the briefing notes shows a lack of understanding of the democratic gap felt so strongly by EU citizens.

3 The Ombudsman's findings

3.1 Commission Decision 94/90 sets out two categories of exception to the public's right of access to Commission documents. The first category is mandatory and concerns protection of the public interest. The Commission has invoked this exception by arguing that disclosure of the documents concerned would damage the public interest as regards international relations. According to the Commission, disclosure would harm relations with the US, because personal views from members of Commission staff could mistakenly be considered as reflecting the views of the Commission.

3.2 The Ombudsman points out that it is not obvious why the US authorities would make such a mistake and the Commission provides no evidence to show any likelihood that they would do so.

3.3 The Ombudsman therefore finds that the reason given by the Commission does not show that the Commission has genuinely considered whether, in the light of the information available to it, disclosure is in fact likely to undermine the public interest as regards international relations. This is an instance of maladministration.

3.4 The Commission has also invoked the second category of exception under Decision 94/90, which is to protect its interest in the confidentiality of its proceedings. According to established case law, in applying this exception the institution must strike a genuine balance between the interest of the citizen in obtaining access to the documents and any interest of its own in maintaining the confidentiality of its deliberations.

3.5 The Ombudsman considers as well-founded the Commission's argument that the documents to which access was denied contain opinions and recommendations from members of staff, who would not feel free to give personal assessments on matters of policy if their views were to be disclosed to the public and that this would seriously undermine the Commission's decision-making capacity.

3.6 The Ombudsman does not consider, however, that the Commission's argument that there is no real public interest in disclosure can be accepted. In this context, the Ombudsman first recalls that the principle of openness is intended to secure a more significant role for citizens in the decision-making process and to ensure that the administration acts with greater propriety, efficiency and responsibility vis-à-vis the citizens in a democratic system(4). Moreover, the widest possible access to documents, which Commission Decision 94/90 aims to secure, enables citizens to carry out genuine and efficient monitoring of the exercise of the powers vested in the Community institutions(5).

3.7 The Ombudsman notes that according to information available on the Commission's website, the TABD traces its origins to 1995, when the then U.S. Secretary of Commerce and Commissioners BRITTAN and BANGEMANN organised a conference for company CEOs from both sides of the Atlantic in Seville. The TABD's own website describes TABD as "an informal process whereby European and American companies and business associations develop joint EU-US trade policy recommendations, working together with the European Commission and US Administration."

3.8 The Ombudsman considers that the complainant is entitled to invoke a public interest in disclosure of documents concerning the Commission's relationship with TABD. Nor is it for the Commission to say which documents might or might not be useful to citizens in carrying out monitoring of the Commission's exercise of its powers.

3.9 The Ombudsman therefore finds that in applying the discretionary exception of Decision 94/90, the Commission has failed to show that it has struck a genuine balance between the interest of the citizen in obtaining access to the documents and its own well-founded interest in confidentiality. This is an instance of maladministration.

3.10 As regards the question of partial access, the Ombudsman points out that the Commission should consider partial access in accordance with Article 4 (6) of Regulation 1049/2001 in reconsidering the complainant's application.

4 Conclusion

4.1 For the reasons given above, the Ombudsman considers that the reasoning of the Commission's refusal of the complainant's application for access to briefing notes of the European Commission delegations to the Mid-Year Meeting of the TABD held in Washington on 10 May 1999 and the TABD Conference held in Berlin on 28-29 October 1999 is inadequate. This is an instance of maladministration.

4.2 The Ombudsman therefore makes the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

The Commission should reconsider the complainant's application and give access to the documents requested, unless one or more of the exceptions contained in Article 4 of Regulation 1049/2001 applies. The reconsideration should include the possibility of partial access, in accordance with Article 4 (6) of Regulation 1049/2001.

THE COMMISSION'S DETAILED OPINION

The Commission's detailed opinion dealt with the nature of the TABD and the documents to which access was denied. As regards the reasons for denying access, the Commission's detailed opinion made, in summary, the following points:

The briefing notes contain assessments of US positions and policies. They reflect the internal deliberations of Commission staff in preparation of meetings with business and/or Government representatives. Disclosing the internal reasoning and the alternatives that have been considered by the Commissioner would expose the Commission vis-à-vis its partners and would weaken its negotiating position. It would give negotiating partners an insight into possible compromises the Commission would be willing to make at a later stage in the negotiations. There would be a serious risk of adding contentious issues to EU-US relations and making it more difficult to reach an agreement.

Since these notes contain opinions and assessments by Commission staff, which the Commissioner may or may not follow, their disclosure could create confusion in public opinion as regards the Commission's official positions. Such confusion would also contribute to complicating EU-US relations, even if the US authorities themselves would most likely distinguish Commission positions from the advice and suggestions submitted by its staff.

Disclosure of the internal briefing and background notes would seriously undermine the Commission's decision-making process. The reason is twofold:

• it would weaken the Commission's position in future trade negotiations. This in turn would seriously affect the Commission's decision-making process, since its room for manoeuvre would be reduced;
• Commission staff should be free to submit advice and opinions to their authorities, be it the Commissioner, the College or a high-ranking official representing the institution. They should be protected from undue pressure from outside when advising their authorities. Their freedom to express their views would be curtailed if they would have to take into account the possibility that their opinions and assessments could be disclosed to the public. The protection of this 'space to think' is fundamental in safeguarding the Commission's right of initiative. Its decision-making process would be seriously undermined if it could no longer rely on independent advice from its staff.

When it reconsidered the application on the basis of Regulation 1049/2001, the Commission weighed the public interest in disclosure against the harm that would be caused by release of the documents. Striking such a balance of interests requires the Commission to assess the information value of the documents for citizens against the risk of undermining its decision-making capacity.

Regulation 1049/2001 grants any natural or legal person a right of access without having to give reasons for his application. Once a document has been released, it is in the public domain and available to anyone. The institution and, in the case of third-party documents, the author, lose control of the use that might be made of the disclosed documents or parts thereof. The risk of selected parts of the disclosed documents being disseminated out of their context must be taken into account when assessing the harm that would be caused by releasing a document.

On the one hand, disclosure of the briefing notes would seriously undermine the Commission's decision-making process. On the other hand, the public is fully informed of TABD recommendations through its website, as well as of the Commission's responses. Contrary to the complainant's contention, the briefing notes would not shed any additional light on the Commission's involvement in the TABD, but would reveal internal deliberations and possible trade-offs in preparation for TABD conferences and meetings with US officials. The Commission is therefore convinced that the protection of its decision-making process clearly outweighs the public interest in disclosure of the few documents that were not released.

Partial access to the documents that were not released is not possible since they contain only background information, personal assessments and recommendations for the Commissioner's or the Director-General's consideration. There are no non-confidential parts that could be separated from the notes themselves.

The complainant's observations on the detailed opinion

The complainant's observations included, in summary, the following points:

The Commission has failed to prove harm to international relations or any genuine consideration of the public interest in disclosure.

The complainant agrees in principle with the right of confidentiality but not with the conclusion that it outweighs the public interest in disclosure in this case.

There is a public interest in access to the documents because the TABD exerts undue influence over the Commission. The documents form the background to policy-making and are therefore of crucial importance for the monitoring of the Commission's exercise of its powers.

THE DECISION

The Ombudsman's evaluation of the Commission's detailed opinion

1.1 The Ombudsman made a draft recommendation that the Commission should reconsider the complainant's application for access to certain documents and give access to the documents concerned, unless one or more of the exceptions contained in Article 4 of Regulation 1049/2001 applies. The reconsideration should include the possibility of partial access, in accordance with Article 4 (6) of Regulation 1049/2001.

1.2 In its detailed opinion, the Commission argues that the documents concerned contain internal assessments of US positions and policies, reflecting the deliberations of Commission staff in preparation of meetings with business and/or Government representatives. Disclosing the internal reasoning and the alternatives that have been considered by the Commissioner would expose the Commission vis-à-vis its partners and would weaken its negotiating position. It would give negotiating partners an insight into possible compromises the Commission would be willing to make at a later stage in the negotiations. There would be a serious risk of adding contentious issues to EU-US relations and making it more difficult to reach an agreement.

1.3 The Commission argues that partial access to the documents that were not released is not possible since they contain only background information, personal assessments and recommendations. There are no non-confidential parts that could be separated from the notes themselves.

1.4 The Ombudsman notes that Article 4 (1) of Regulation 1049/2001 provides in part that "The institutions shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards: . -international relations." This part of Article 4 does not make reference to the possibility of an overriding public interest in disclosure.

1.5 The Ombudsman considers that the reasoning contained in the Commission's detailed opinion explains clearly, for the first time, how disclosure of the documents concerned could undermine the protection of the public interest as regards international relations. The Ombudsman's inquiry has revealed no evidence to cast doubt on the validity of this aspect of the Commission's reasoning or on the Commission's view that partial access is not possible.

1.6 In view of the Ombudsman's finding in the preceding paragraph it is unnecessary to consider whether access to the documents could also be refused under the second paragraph of Article 4 (3) of Regulation 1049/2001(6).

The Ombudsman points out, however, that he cannot accept the Commission's view that the risk of selected parts of documents being disseminated out of their context must be taken into account when assessing the possible harm to its decision-making process that would be caused by releasing a document.

In the Ombudsman's view, the Commission's reasoning on this point is inconsistent with the freedom of expression under the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority.

2 Conclusion

The Ombudsman considers that the Commission has taken adequate steps to satisfy the Ombudsman's draft recommendation. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Commission Decision 94/90 of 8 February 1994 on public access to Commission documents OJ 1994 L 46/58.

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

(3) 2001 OJ L 345/94.

(4) Case T-211/00, Aldo Kuijer v Council, [2002] ECR II-485, para. 52.

(5) Case T-92/98, Interporc Im- und Export GmbH v Commission, [1999] ECR II-3521, para. 39.

(6) "Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."