Dear Mr X,

You recently submitted a complaint to the European Ombudsman against the European Commission concerning the above issue.

On 7 March 2024, you requested public access[1] to the letter that the Commissioner for Energy had sent to the German Federal Minister for Economic Affairs concerning the German gas storage neutrality charge. On 9 April 2024, the Commission sent its initial reply. It refused access to the letter arguing that its disclosure was prevented by the need to protect the purpose of inspections, investigations and audits.[2]

On 10 April 2024, you asked the Commission to review its decision (by making a ‘confirmatory application’).

On 2 July 2024, after the intervention of the Ombudsman[3], the Commission replied to your confirmatory application. It maintained its refusal to grant public access to the letter. In doing so, the Commission invoked exceptions under the EU legislation on access to documents (Regulation 1049/2001), arguing that disclosing the letter would undermine the protection of the purpose of investigations and an ongoing decision-making process[4]. 

Dissatisfied with this reply, you turned to the Ombudsman on 3 July 2024.

After careful analysis of all the information you provided with your complaint, and for the reasons set out below, we have decided to close the inquiry with the following conclusion:

Based on the information provided in the complaint, there was no maladministration by the Commission.

In its confirmatory decision, the Commission stated that the letter is part of the ongoing EU Pilot procedure EUP(2023)10538 that it had launched on 14 July 2023 and that concerns the compatibility of the German gas storage neutrality charge with EU law.

The EU Pilot is a mechanism that the Commission uses to address potential breaches of EU law. It is an informal dialogue between the Commission and the Member State concerned on issues relating to the Member State’s potential non-compliance with EU law. This informal dialogue during the EU Pilot may lead to the issue at stake being resolved or help the Commission identify more clearly the potential breach of EU law that requires the launch of a formal infringement procedure.^[5]

In accordance with EU case-law[6], EU Pilot procedures fall under the exception to disclosure set out in Article 4(2), third indent, of Regulation 1049/2001. As long as there is a risk of affecting the nature of the infringement procedure, altering its progress or undermining its objectives, a general presumption of non-disclosure applies.

The Commission said that it is still analysing the reply that it received from the German authorities in the context of this EU Pilot. The letter to which you seek public access was sent in February 2024 as part of the informal exchange within the EU Pilot procedure. Thus, the EU Pilot is still ongoing and it seems reasonable for the Commission to rely on the general presumption of non-disclosure.

However, this being said, the application of a general presumption does not exclude the possibility of demonstrating that a given document is not covered by it or that there is an overriding public interest justifying the disclosure of the requested document.[7]

You consider that there is an overriding public interest in disclosing the letter. You refer to the statement[8] that the Commissioner for Energy made at a press conference, following the Energy Council on 4 March 2023, that unilateral measures are a form of export restrictions that would put at risk energy solidarity. You further consider that there is a very high public interest in the security gas supply of EU countries, which can also be seen in the complaint[9] that several Member States have lodged against the German surcharge.

While we agree that the security of gas supply of the EU is an important topic, general considerations are not sufficient to show that the principle of transparency is especially pressing so as to constitute an overriding public interest in disclosure.[10] The citizen’s right to be informed about the compatibility of national law with EU law is also not sufficient to demonstrate that the principles of transparency and democracy are particularly pressing and prevail over the reasons justifying the refusal to disclose.[11] It is not for an applicant to determine the extent to which EU law is complied with by the national authorities.[12] Rather, it is in the public interest that the Commission clarify whether EU law has been complied with by the Member State[13], as the Commission’s examination of compliance with EU law is the most effective way of protecting the public interests concerned[14].

Therefore, we consider that the Commission was justified to rely on the general presumption of non-disclosure that applies to EU Pilot procedures. As such, there is no need to assess whether the Commission could also reasonably rely on an ongoing decision-making process in refusing access to the letter. However, given that the Commission stated that it is still assessing the response of the German authorities, its position that the internal decision-making process as to the next steps in this matter is still ongoing is reasonable.

Given the above, we consider that the Commission’s confirmatory decision was reasonable.

We appreciate that this may not be your desired outcome but we nevertheless hope that you find the above explanations helpful.

Yours sincerely,

 

Rosita Hickey 

Director of Inquiries

Strasbourg, 26/07/2024

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

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

[3] 1042/2024/SF.

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

[5] More information available at: https://single-market-scoreboard.ec.europa.eu/enforcement-tools/eu-pilot_en#:~:text=EU%20Pilot%20is%20a%20mechanism,launching%20a%20formal%20infringement%20procedure.

[6] Judgment of the General Court in case T-306/12, Spirlea v Commission, para 57; available at: https://curia.europa.eu/juris/liste.jsf?num=T-306/12&language=EN; Judgment of the Court in Case C-562/14 P, Sweden and Spirlea v Commission, paras 38 - 45; available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-562/14

[7] Ibid, para 46.

[8] See https://www.argusmedia.com/en/news-and-insights/latest-market-news/2572837-eu-states-call-for-action-on-german-gas-storage-levy

[9] Austria, Czech Republic, Hungary and the Slovak Republic have noted that addressing the negative consequences of this requires concerted efforts and coordination at EU level. They stated that it is urgent to find a solution together with the Commission. For further information see 6932/24 (available at: https://data.consilium.europa.eu/doc/document/ST-6932-2024-INIT/en/pdf) and 10265/24 (not published).

[10] Judgment of the General Court in Case T-662/21, Troy Chemical Company v Commission, paras 113 - 115; available at: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-662/21.

[11] Judgment of the Court of 16 July 2015 in Case C-612/13 P, ClientEarth v Commission, paras 91-93; available at: https://curia.europa.eu/juris/liste.jsf?num=C-612/13&language=EN.

[12] T-306/12, Spirlea v Commission, para 98;

[13] Ibid.

[14] Judgment of the General Court in Case T-634/17, Anikó Pint v Commission, para 53; available at: https://curia.europa.eu/juris/liste.jsf?num=T-634/17&language=en.

[15] Full information on the procedure and rights pertaining to complaints can be found at  

  https://www.ombudsman.europa.eu/en/document/70707