Background to the complaint

1. The complainant is an Irish not-for-profit organisation, advocating for freedom of information rights. The complainant made a request for public access to documents^[1] held by the European Commission concerning the Forestry Programme 2023-2027 launched by the Irish government in 2022.[2] In particular, the complainant wanted to have access to any document held by the Commission containing possible environmental concerns raised in relation to the Forestry Programme 2023-2027 and any exchange of letters between the Commission and the Irish Department of Agriculture on that issue in 2023.

2. The Commission informed the complainant that the request would be split between the Directorate-General for Environment and the Directorate-General for Competition, and registered under joined reference numbers EASE 2023/4018 and EASE 2023/4153.

3. The Commission’s Directorates-General for Competition and for Environment replied to the complainant’s request in July and August 2023 respectively. Both Directorates-General refused to give access to the documents identified.

4. The initial decisions explained that the documents form part of the case files in pending State aid investigations carried out by the Commission. Under the EU rules in place,[3] there is a general prohibition of State aid, that is, financial aid granted by Member States to companies or other actors. The purpose is to prevent a distortion of competition and trade within the EU’s internal market. The Commission launched two State aid investigations into the Forestry Programme 2023-2027, registered under SA.104922 (2023/N) and SA.107220 (2023/N). The Commission said that the investigations were still ongoing, and therefore referred to exceptions under the EU legislation on public access to documents,[4] arguing that disclosure could undermine the purpose of investigations and its decision-making process.

5. The complainant asked the Commission to review its decision (by making a ‘confirmatory application’) in August 2023.

6. The Commission replied to the complainant’s confirmatory application in February 2024. It identified 17 documents as falling under the scope of the request. It granted partial access to ‘document 1’, which is a letter sent by the Commission to the Irish government in relation to the Forestry Programme,[5] and confirmed the initial decisions to refuse public access to the remaining documents. 

7. The Commission explained that, in the meantime, it had closed its State aid investigations in cases SA.107220 (2023/N) and SA.104922 (2023/N) in August and September 2023 respectively. The closing decisions were published on the Commission’s website.[6] The Commission said that it had approved the Irish scheme under EU State aid rules because, in the Commission’s view, the scheme was necessary and appropriate to support and strengthen environmental protection, and would have a limited impact on competition and trade between Member States.

8. The Commission confirmed that the documents to which it refused access are covered by a general presumption of non-disclosure, which allows the Commission to refuse access without having to assess the documents individually and without having to consider whether partial access could be granted to one or more documents. The Commission said that disclosing the documents could jeopardise its capacity to gather information and conduct its State aid investigations in the future.

9. Dissatisfied with the Commission’s decision to refuse access to the documents, the complainant turned to the Ombudsman in February 2024.

The inquiry

10. The Ombudsman opened an inquiry into the Commission’s decision to refuse access to the 17 documents at issue.

11. In the course of the inquiry, the Ombudsman inquiry team inspected the documents and met with representatives of the Commission to obtain additional information.[7] The Ombudsman gave the complainant an opportunity to provide comments on the meeting report.

Arguments presented to the Ombudsman

12. The complainant argued in the confirmatory application that the State aid investigations have now been concluded and that the Commission approved the scheme proposed by Ireland to support its forestry programme. As the requested documents contain environmental information, the request should be interpreted in light of the Aarhus Convention.[8] According to the complainant, the Aarhus Convention, read in conjunction with Article 47 of the EU Charter of Fundamental Rights, imposes obligations to ensure effective judicial protection of the rights conferred by EU law. Access to the file, the complainant contended, is an essential procedural safeguard in relation to access to justice.

13. The complainant also said that there is a specific overriding public interest in this case due to the significant environmental impact from the state forestry programme in Ireland. According to the complainant, the previous programme had failed to protect birds and appeared to be in breach of EU rules on the protection of the environment. In addition, a high degree of forestry in Ireland is concentrated on peat soils and there is a risk, the complainant said, that draining these soils or planting forests will increase carbon emissions.

14. The Commission said in its reply to the complainant’s confirmatory application that the 16 documents to which it had refused access in their entirety were documents communicated by the Irish authorities to the Commission in the context of a procedure for the review of State aid in June 2023. The documents contain information that was instrumental for the assessment of the facts, and other information regarding the direction, strategy and procedural steps that the Commission took. The Commission insisted that they are covered by a general presumption of non-disclosure, as documents forming part of an administrative file resulting from the procedure for reviewing State aid.

15. According to the Commission, State aid investigations generally require the Commission to gather information from third parties in order to collect the necessary evidence and issue a final decision. The Commission relies on Member States’ contributions, which typically also contain sensitive information relating to companies, and access to such documents would undermine Member States’ willingness to cooperate. This, in turn, would jeopardise the Commission’s authority and lead to a situation where the latter would be unable to carry out properly its task of enforcing EU competition law. The Commission said that EU case law had confirmed the general presumption of non-disclosure for State aid investigations.[9] The presumption applies even after the investigation has ended.

16. In reply to the complainant’s argument about the Aarhus Convention, the Commission explained that the application of the provisions of the Convention to EU institutions and bodies is governed by a specific EU act (the ‘Aarhus Regulation’).[10] The Commission noted that private interests such as judicial representation and access to justice do not constitute relevant elements when evaluating the existence of an overriding public interest. The Commission acknowledged that Article 6 of the Aarhus Regulation lays down that an overriding public interest in disclosure is deemed to exist where the information requested relates to emissions into the environment. However, it pointed out that the same Article clearly excludes from its application the information obtained in the context of investigations carried out by the EU institutions, which also include State aid investigations. The Commission also underlined that the requested documents do not contain information as regards emissions into the environment.

17. The Commission argued that the complainant had not demonstrated a pressing need for the disclosure of the documents. Moreover, the Commission did not identify any public interest capable of overriding the interests protected by the EU legislation on access to documents, that is, the purpose of State aid investigations and the Commission’s decision-making process.

18. During the meeting with the Ombudsman inquiry team, the Commission clarified that the statement in the reply to the complainant’s confirmatory application that “the requested documents do not contain information as regards emissions into the environment” had to be understood in the context of the State aid investigations, and not from an environmental perspective. The Commission’s representatives explained that, taken out of context, the statement could be misunderstood. They confirmed that the Commission had relied on a general presumption and that it had therefore not carried out an individual assessment of the documents.  

The Ombudsman's assessment

19. The Ombudsman notes that, as put forward by the Commission, the EU courts have ruled that there is a general presumption of non-disclosure for documents related to State aid investigations. The courts consider that this particular type of documents benefits from an increased level of protection because disclosure of such documents in principle undermines the protection of the objectives of the Commission’s investigations. The general presumption of non-disclosure allows the Commission to refuse access to all documents without having to assess the documents individually.

20. The general presumption remains applicable to the documents of the State aid file regardless of whether the procedure has already been closed or is pending.[11]

21. The inspection of the 16 documents to which access was refused in full confirmed that they contain information exchanged between the Irish authorities and the Commission in the context of the State aid procedure in relation to the Irish Forestry Programme 2023-2027. Some documents are transmission e-mails while others are detailed letters or annexes containing substantive information used by the Commission to assess the facts of the case. It was reasonable for the Commission to invoke the general presumption of non-disclosure to these documents.

22. One of the arguments put forward by the complainant was that the documents must contain information on emissions into the environment, because planting forests could drain peat soils which could in turn increase carbon emissions. The Ombudsman understands that the State aid investigation by the Commission into the Forestry Programme covered, among other issues, the afforestation of peat lands, that is, the planting of new forests in specific wetland ecosystems containing a lot of organic matter.^[12] Peat lands are one of the largest carbon stores on land, meaning that they capture carbon dioxide (CO₂). One of the risks of afforestation of peat lands is that carbon dioxide could be released into the water and, in general, the environment.

23. In light of this, the Ombudsman inquiry team asked to meet with the relevant Commission services in order to obtain additional clarifications on the statement made in the reply to the complainant’s confirmatory application that “the requested documents do not contain information as regards emissions into the environment”.

24. During the meeting, the Commission representatives confirmed that the Commission had not carried out an individual assessment of each document but had rather relied on the general presumption of non-disclosure.

25. The Commission noted that whether or not the documents contain information on emissions into the environment is irrelevant for the assessment of whether an overriding public interest in disclosure is deemed to exist in this case. This is correct. Article 6(1) of the Aarhus Regulation[13] excludes from its scope of application information obtained in the course of investigations carried out by the EU institutions (including State aid investigations). As such, there is no ‘automatic’ overriding public interest in this case. The assessment therefore requires weighing the different public interests at stake.

26. The Commission confirmed that it had assessed each argument brought forward by the complainant as regards the existence of an overriding public interest. In particular, the Commission found that the complainant had not sufficiently specified to what extent the disclosure of documents could serve the general interest. The complainant had invoked previous programmes (which were separate from the current State aid schemes), and argued that access to the file is an essential procedural safeguard in relation to access to justice. The Commission concluded that the balance of interests weighed in favour of protecting its State aid procedures. The Ombudsman does not find that the Commission’s balancing exercise was unreasonable.

27. The inspection carried out by the Ombudsman inquiry team confirmed that the redactions applied by the Commission to ‘document 1’ concern personal data and are reasonable.

28. Therefore, the Ombudsman considers that the Commission’s decision to refuse access to the documents at issue was reasonable.

Conclusion

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

There was no maladministration by the Commission.

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

 

Emily O'Reilly
European Ombudsman

Strasbourg, 11/07/2024

 

[1] Under Regulation 1049/2001 regarding 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] The Irish Forestry Programme 2023-2027 provides financial incentives for farmers and other landowners to engage in afforestation, that is, the conversion of abandoned and degraded agricultural lands into forests.

[3] Laid down in Article 107 of the Treaty on the Functioning of the European Union (TFEU): https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A12008E107

[4] Set out in Article 4(2), third indent and Article 4(3) of Regulation 1049/2001.

[5] The document is publicly available at: https://ec.europa.eu/transparency/documents-request/search/document-details/1013.

[6] Available at: https://competition-cases.ec.europa.eu/search?search=SA.107220%20

[7] The report on the meeting is available at: https://www.ombudsman.europa.eu/doc/inspection-report/188736

[8] The Aarhus Convention is a United Nations agreement on environmental democracy, to which the EU is a party. See the United Nations Convention on access to information, public participation in decision-making and access to justice in environmental matters, done at Aarhus, Denmark, on 25 June 1998, available at: https://unece.org/DAM/env/pp/documents/cep43e.pdf

[9] The Commission referred to the judgment of the EU Court of Justice of 29 June 2010, European Commission v Technische Glaswerke Ilmenau GmbH, case C-139/07 P, available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=c-139/07

[10] 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, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006R1367

[11] See Judgment of the General Court of 5 October 2022 in case T-214/21, Múka v European Commission, paragraph 55, available at: https://curia.europa.eu/juris/liste.jsf?num=T-214/21

[12] The Commission’s letter to the Irish authorities closing the investigation in case SA.107220 (2023/N), which is publicly available, mentions the need to ensure a neutral or positive carbon balance for afforestation of organo-mineral soils with peat depth lower than 30 cm (see paragraph 63 of the letter, available at: https://ec.europa.eu/competition/state_aid/cases1/202335/SA_107220_7043418A-0100-C21A-B638-CE0D74FE19EA_88_1.pdf)

[13] See footnote 10.