Background to the complaint

1. In addition to the standard pension Members of the European Parliament (MEPs) receive from the European Parliament, a supplementary pension scheme, the European Parliament’s Voluntary Pension Scheme, was introduced in 1989. It has been closed to new members since July 2009 and is currently being phased out. The scheme is operated by the Voluntary Pension Fund for Members of the European Parliament (VPF).

2. In October 2022, the complainant, a journalist, asked the Parliament for public access[1] to (1) a complete list of investments made on the behalf of the European Parliament's voluntary pension fund "investment vehicle" SICAV-FIS by [a private bank in Luxembourg] and any other designated investment manager and (2) any document that shows how this fund's estimated 371,4 million euro deficit is calculated.

3. In November 2022, the Parliament informed the complainant that it had identified two documents as falling within the scope of the request. The Parliament refused access to a management report of 31 August 2022, entitled ‘Pension Fund Members of the European Parliament’, arguing that the report’s disclosure would undermine the protection of commercial interests of the VPF.[2] The second identified document, Parliament’s 2021 annual accounts,[3] in which the calculation of the deficit of the VPF was set out on pages 25 and 26, was publicly available. Parliament provided the complainant with a link to the document.

4. The complainant then asked the Parliament to review its decision to refuse access to the management report (by making what is known as a 'confirmatory application').

5. In December 2022, the Parliament maintained its decision to refuse access to the document at issue based on the need to protect commercial interests.

6. In January 2023, dissatisfied with the Parliament’s decision, the complainant turned to the Ombudsman.

The inquiry

7. The Ombudsman opened an inquiry into the Parliament’s refusal to give public access to the management report of 31 August 2022 (hereafter ‘the document’).

8. In the course of the inquiry, the Ombudsman inquiry team inspected the document as well as the documentation relating to the consultation of the VPF on the access request.[4]

9. The Ombudsman also received the reply of the Parliament on the complaint and, subsequently, the comments of the complainant on Parliament’s reply.  

Arguments presented

by the European Parliament

10. The Parliament explained that it is only in possession of the document because it had been annexed to an email circulated among the board members of the VPF - most of whom are actual or former MEPs - to which the Parliament had been put in copy. The document would normally not have required registration because it does not concern the Parliament’s activities. However, the Parliament identified the document as falling within the scope of the complainant’s access request, since it contained a performance analysis of the investment strategy of the VPF that could, broadly, be seen as also containing a ‘complete list’ of the fund’s investments. It said that it did so in line with good administrative practice.

11. The Parliament noted that the document was authored by a contractor on behalf of the VPF. The Parliament further noted that the VPF is a private entity distinct from Parliament; it is a non-profit-making organisation (“association sans but lucratif”, or ASBL, in French) under Luxembourgish law. The Parliament has no legal ties with the VPF, shares none of its activities and has no direct influence on its decisions or activities. However, as the VPF was set up for the benefit of MEPs, the Parliament has provided it with certain services and facilities, including the use of rooms on the Parliament’s premises, interpretation facilities and other technical assistance since 1994.

12. The Parliament stated that it had consulted the VPF on the access request and that the VPF opposed the document’s disclosure, indicating that disclosure would undermine its commercial interests.

13. The Parliament noted that the document contains commercially sensitive information on the business strategy of the VPF. It contains a detailed analysis of the performance of the VPF, including its portfolio with the names of the individual investments made, valuation, evolution and other performance measures. Disclosure of the document would enable competitors to benefit from the data for their own business advantage, either by emulating the model set out therein or by otherwise adjusting their business strategy in the light of insights gained into a competitor's approach. Furthermore, the management report is not among the documents that ASBLs under Luxembourgish law must normally disclose on the website of the regulatory authorities. In light of the above, the Parliament concluded that disclosure of the document would undermine the protection of the commercial interests of the fund.

14. Concerning the existence of an overriding public interest, the Parliament argued that the public interest in knowing the individual investments made by the VPF could not override the interest in protecting the commercial interests of this fund. It added that the rules governing the additional (voluntary) pension scheme[5] as well as key documents regarding the membership, governance and financial performance of the VPF are publicly available. This public information already allows for a comprehensive debate on the nature, purpose and financial situation of the voluntary pension scheme and the VPF. Therefore, the information on the individual investments made by the fund is not necessary for conducting such a debate. Furthermore, the mere fact that the VPF is part of the voluntary pension scheme does not imply that the fund’s business strategy has to be disclosed.

by the complainant

15. The complainant argued in his confirmatory application that EU institutions should not rely on the need to protect commercial interests simply because information relates to a company and its business relations. He considered that the Parliament did not demonstrate that disclosure could specifically and actually undermine the commercial interests at stake. He said that he had not asked for documents concerning the performance, valuation or evaluation of investments. What he had asked for was the list of investments made by the VPF, that is, a list of the investments by name. 

16. The complainant disagreed that the VPF was a third party, because its official seat is at the European Parliament in Luxembourg. Furthermore, the VPF’s board is partly composed of MEPs.

17. The complainant considered that there is an overriding public interest in disclosure because the voluntary pension scheme has a massive actuarial deficit, which will require a taxpayer bailout. 

18. In his complaint to the Ombudsman, the complainant added that detailed lists of investments in the annual accounts were made public in the Luxembourg business register until 2010. He provided the Ombudsman with an example of such a document from 2010.

The Ombudsman's assessment

19. The question before the Ombudsman is whether the Parliament dealt with the request in accordance with the EU legislation on public access to documents and principles of good administration.

20. The Ombudsman welcomes the fact that the Parliament identified the management report as falling within the scope of the complainant’s request.

21. However, the management report contains much more information than the complainant requested. The complainant sought access to a list of the investments made by the VPF.[6] As the complainant has said, he did not ask for information on the performance measures, valuation or evolution of the investments.

22. The question is then whether the Parliament could provide the complainant with meaningful, partial access to the management report. The answer is no. The management report does not contain a list like the one sought by the complainant and, although some information in the report is relevant to the complainant’s request, it is hard to see how the Parliament should meaningfully have redacted the report.

23. Against this background, the non-disclosure of the management report did not amount to maladministration.  

24. That said, in the event an EU institution cannot grant public access to a document, it should endeavour to provide applicants with the information that is relevant to their requests. The Ombudsman will thus make a suggestion below to the effect that the Parliament should seek to provide the complainant with the requested list of investments.

25. Two observations are relevant in that respect. In the first place, the Ombudsman is not convinced that such a list constitutes commercially sensitive information and that its disclosure could put the VPF at a comparative disadvantage vis-a-vis competing funds. The Ombudsman’s understanding is that the VPF is not in competition on any market with other economic operators and it therefore seems entirely hypothetical that the value of its investments would diminish as a result of them becoming known to the public. In the second place, there is a clear and justified public interest in knowing what investments are made. The Parliament - and ultimately EU taxpayers - financed the VPF to a large extent, it underwrites the deficit of the VPF, its board is largely composed of MEPs, and the Parliament provides it with the logistics for its functioning. The VPF is clearly embedded within the Parliament and it is fair to assume that it is within Parliament’s reach to obtain such a list of individual investments from the VPF. Moreover, it is a legitimate and arguably overriding public interest to know whether investments are made in accordance with the values and objectives to which the Union subscribes.[7]

Conclusion

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

There was no maladministration as the European Parliament could rightfully refuse access to the document at issue.

Suggestion for improvement

The European Parliament should provide the complainant with a list of the individual investments made by the Voluntary Pension Fund.

The complainant and the European Parliament will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 22/06/2023

 

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

[2] Article 4(2), first indent, of Regulation 1049/2001.

[3] Annual accounts of the European Parliament, financial year 2021: https://www.europarl.europa.eu/cmsdata/251577/Final%20Financial%20Accounts_2021.pdf.

[4] In accordance with Article 4(4) of Regulation 1049/2001.

[5] Rules governing the additional (voluntary) pension scheme (PE 113.116/BUR./rev. XXVl/04-2009): https://www.europarl.europa.eu/RegData/publications/divers/2009/0002/EP-PE_DV(2009)0002_XL.pdf.

[6] That would be a list like the one contained in the 2010 document from the Luxembourg business register.

[7] Cf also point 157 in Parliament’s resolution of 10 May 2023 concerning the discharge in respect of the budgetary year 2021 as concerns the Parliament, https://www.europarl.europa.eu/doceo/document/TA-9-2023-0138_EN.html .