# Decision of the European Ombudsman on complaint 1286/2003/JMA against the European Commission
- Author: European Ombudsman
- Date: null
- [URL](https://www.ombudsman.europa.eu/en/decision/en/1939)
---
Strasbourg, 19 October 2004   

Dear Mr M.,

On 15 July 2003, you lodged a complaint with the European Ombudsman
against the European Commission on behalf of the environmental organisation
"Friends of the Earth" (FoE). Your complaint concerns the Commission's
decision of 5 May 2003 to refuse your request for public access to a number
of documents related to the ongoing negotiations taking place under the
auspices of the World Trade Organisation (WTO), under the General Agreement
on Trade in Services.

On 29 September 2003, I forwarded the complaint to the President of
the Commission. On 18 November 2003, the Commission sent me its opinion,
which I forwarded to you with an invitation to submit observations. I
received your observations on the Commission's opinion on 18 December
2003.

I am writing now to let you know the results of the inquiries that have
been made. I apologise for the length of time it has taken to deal with
your case.

THE COMPLAINT
-------------

According to the complainant, the facts of the case are, in summary,
as follows:

On 21 February 2003, "Friends of the Earth" (FoE), wrote to
the Secretariat-General of the Commission, requesting access to a number
of documents, on the basis of Art 6 of Regulation 1049/2001 \[henceforth,
"the Regulation"\]. The documents in question were as follows: (i) requests
made by the EU to other WTO members in the context of the negotiations
on trade in services in accordance with the Doha Development Agenda; (ii)
all requests and supplementary requests made by non-EU WTO members to
the EU; and (iii) the draft initial offer made by the EU to non-EU WTO
members.

In the absence of a response, the complainant notified the Commission
on 17 March 2003 of its intention to make a confirmatory application in
accordance with the provisions of Art. 7 (4) of the Regulation. Whereupon,
he sent a confirmatory application on 19 March 2003. On 20 March 2003,
the Commission's Director General for Trade refused the complainant's
request. On 4 April 2003, the complainant made a second confirmatory application
which contested the substance of the refusal. On 5 May 2003, the Secretary
General of the Commission confirmed the position taken by the responsible
services.

In parallel to the above requests, FoE also requested identical information
from the UK authorities. These requests were also refused.

The complainant alleged that the Commission misunderstood and acted in
breach of its obligations under the Regulation. He put forward the following
arguments in support of his allegations:
*++Failure to demonstrate that the protection of the public interest
was impaired++*   

The complainant argued that the Commission was wrong to base its refusal
on the exception provided in Art. 4 (1) of the Regulation, concerning
the protection of the public interest in international relations. He considered
that the Commission's Secretary General erred in his overly broad interpretation
of Art. 4 (1) of the Regulation by arguing that the documents related
to a traditional method of negotiation and, as a result, all bilateral
requests should be kept confidential among negotiators. In the complainant's
view, the Commission's argument merely demonstrates that international
relations could be affected by the release of the requested documents.
He believed, however, that the Commission had not been able to demonstrate
that disclosure would undermine the protection of the public interest
as regards international relations.
*++Nature of the method of negotiation within the WTO++*   

The complainant argued that the right of access to information under
the Regulation is of particular importance in this type of situation,
because of the implications of trade-related agreements negotiated under
the WTO. In his view, the fact that a method of negotiation might be traditional
or generally agreed upon is not sufficient to justify withholding the
requested documents.

Regardless of the Commission's apparent reliance on the notion of sovereignty,
the complainant underlined that in its dealings with the British authorities,
the institution insisted that the requested documents should be treated
confidentially and were not to be released to the general public or for
wider circulation, thereby expressly undermining the sovereignty of the
UK.

The complainant argued that the Commission's Secretary General provided
no information as to why the method of negotiation followed by the parties
to the WTO was to be considered traditional. Nor did he explain in what
context the method had been generally agreed upon. In his view, all WTO
members were free at the outset of the negotiations to establish their
own procedures. The Commission had not suggested that it took into account
the provisions of the Regulation when it agreed to take part in negotiations
with a method which would undermine public access, and therefore the aim
of the Regulation. In the complainant's view, the only reason offered
by the Commission in support of this particular negotiation method is
that disclosure of the requests would impinge on the ability of sovereign
states to decide how to take those requests back to their own stake-holders.
Yet, the complainant noted that no explanation had been given on how this
would be so. For the complainant, the expectation that the European Commission
should negotiate in accordance with a traditional method was not a sufficiently
strong basis to give rise to the exemption provided for in Article 4 (1)
of the Regulation.
*++No balancing of the interests at stake++*   

The complainant argued that the Regulation requires a balancing exercise
between the public interest, as regards international relations, and the
public interest in access to information. According to the complainant,
the Commission had not properly weighed up the competing public interests.
*++Failure to apply the exception in a restrictive manner++*   

The complainant pointed out that the Commission had not applied the exceptions
in an appropriately restrictive manner, as required by the Community courts.
On the contrary, the relevant exemption had been interpreted in an unnecessarily
broad manner so as to prejudice the right of access to information, to
which Art. 4 (1) of the Regulation is only an exception. The complainant
noted that, as the Community courts have held, the responsible institution
has to provide evidence that disclosure is likely to cause actual harm
to relations with third countries, and that the risk of the public interest
being undermined must therefore be reasonably foreseeable and not purely
hypothetical.

In view of the above, the complainant concluded that the Commission had
failed to justify its refusal of access to his requests, in breach of
its obligations under the Regulation.

In summary, the complainant alleged that the Commission erred in its
interpretation of Article 4 (1) of Regulation 1049/2001 regarding public
access to European Parliament, Council and Commission documents, and claimed
that the requested documents be disclosed.

THE INQUIRY
-----------

**The Commission's opinion**   

In its opinion, the Commission argued that it had met its legal obligations
by demonstrating that disclosure of the requested documents would undermine
the public interest as regards international relations. The Commission
noted that it had been assigned the task of negotiating international
trade agreements in the framework of the WTO, which is negotiated on behalf
of the EC and the Member States. The public interest was to be understood
in this instance as enabling the Commission to successfully carry out
the negotiations. Traditionally, this type of trade negotiation has been
carried out through a method based on the request-offer approach. By overturning
the traditional manner of trade negotiations, the Commission would have
breached the expectations of the negotiating parties whereby they should
be in a position to decide themselves on how to take requests back to
their own stakeholders for review, and how to develop counter-bids. This
would have affected the Commission's relations with its trading partners,
and as a result, generated a negative impact on these very sensitive negotiations.

As regards the traditional nature of the negotiations generally agreed
upon by all partners, the Commission pointed out that this concept is
to be found in paragraph 11 of the WTO's Guidelines and procedures for
the negotiations on trade in services. This method allows WTO members
to make clear to their trading partners what their respective interests
are and to facilitate the convergence of positions with a view to achieving
an overall agreement. As a result of this obligation, the Commission did
not consider it appropriate to try to impose a more transparent negotiation
method, even if it was not legally prevented from doing so.

The complexity and the sensitivity of the negotiations have to be seen
as a whole. The legitimate expectations of the EU's trading partners and
the Commission's possibilities to successfully fulfil its negotiation
mandate also have to be considered as substantive reasons in support of
not breaching the negotiation method. A breach of these expectations would
have led to a situation where the trading partners would develop a less
open and a more hostile attitude towards the Commission and that this,
in turn, would reduce the Commission's possibilities to bring negotiations
to a successful close.

With regard to the complainant's position on the balancing of interests,
the Commission agreed that there is always a public interest in transparency
and thus in disclosure of any document held by a public administration,
in accordance with recital 2 of the Regulation. However, the Regulation
establishes certain exceptions to this rule. Accordingly, all documents
held by the Commission are in principle accessible to the public, unless
their disclosure would undermine certain public and private interests
listed in Article 4 of the Regulation.

The Commission pointed out that the key element of the treatment of an
application for access to documents is to carry out a harm test in order
to determine whether disclosure would undermine any of those interests.
If no exception applies, access is granted, without any need for a balancing
of interests. If an exception applies, access is refused. Nevertheless,
as regards the exceptions laid down in Article 4 (2) and 4 (3), there
is a possible further exception to these exceptions, namely the existence
of an overriding public interest in disclosure. In order to establish
whether such interest exists, a balancing of interests must be carried
out. The institution noted that the protection of international relations
(Article 4.1 a of the Regulation), however, is a mandatory exception,
and not subject to any further balancing of interests.

Hereupon, the Commission concluded that some of the arguments raised
by the complainant, namely his concerns with regard to whether the process
of setting the WTO agreements is sufficiently democratic or the alleged
public interest in renegotiating the method of negotiation, were not pertinent.

As regards whether the exception had been interpreted in a restrictive
manner, the Commission explained that withholding the documents is justified
not because the negotiation method is traditional or generally agreed
upon, but because disclosure would undermine the protection of the public
interest as regards international relations. The Commission contends that
this is a restrictive interpretation of the exception, strictly confined
to a concrete context.

The Commission justified its contacts with the UK authorities on the
grounds that the consultation system set out in Articles 4 (4) (5) and
5 of the Regulation, requires that consultation of the author take place
if it is not clear that the document shall or shall not be disclosed.
The Regulation applies to all documents held by the concerned institutions,
including documents originating from third parties. Taking into consideration
this premise and the nature of the documents concerned, the Commission
dismissed the complainant's argument that the Commission may have undermined
the sovereignty of the UK authorities by replying to the consultation
made in accordance with Article 5 of the Regulation.

Consequently, for the reasons set out above, the Commission considered
that it had adequately handled the complainant's request for access to
documents both at the initial and at the confirmatory level. The institution
believed that its services did not err in their interpretation of the
Regulation, in particular that of Article 4 (1) (a), and that they did
not fail to justify the refusal of access to the documents concerned.
**The complainant's observations**   

In reply to the Ombudsman's invitation to submit observations, the complainant
indicated that the Commission's opinion did not raise any further issue
which would either alter the substance of the complaint or require a further
response.

THE DECISION
------------

**1 Commission's refusal to grant access to the documents related to the
WTO negotiations**   

1.1 The complainant's application to the Commission for access to a number
of documents concerning the ongoing negotiations taking place under the
auspices of the World Trade Organisation (WTO) was refused. The complainant
alleges that the Commission erred in its interpretation of Article 4 (1)
of Regulation 1049/2001. He therefore claims that the requested documents
should be disclosed.

In support of his allegation and claim, the complainant argues that
the Commission failed to: (i) demonstrate that disclosure would undermine
the protection of the public interest; (ii) justify why the confidential
method of negotiation followed by the WTO was traditional or generally
agreed upon; (iii) balance the interests at stake; and (iv) apply the
relevant exception in a restrictive manner.

1.2 The Commission considers that it handled the complainant's request
for access to documents properly both at the initial and at the confirmatory
level. The institution believes that its services did not err in their
interpretation of the Regulation, in particular that of Article 4 (1)
(a), and that it adequately justified its refusal.

1.3 At the outset, and before addressing the detailed arguments made
by the complainant and the Commission, the Ombudsman considers it useful
to recall some of the general principles which inform the scheme for public
access to documents enshrined in Regulation (EC) No 1049/2001[(1)](#(1)){#Footnote1}
\[henceforth, the Regulation\], which replaced, among others, Council Decision
93/731/EC on public access to Council documents[(2)](#(2)){#Footnote2}
and Commission Decision 94/90/EC on public access to Commission documents[(3)](#(3)){#Footnote3}.

The Regulation confers on citizens a right of access to documents held
by the European Parliament, the Council and the Commission and their agencies,
by laying down the general principles and limits on such access in accordance
with Article 255(2) of the EC Treaty[(4)](#(4)){#Footnote4}.

Even though the Regulation is aimed at developing the general principle
that citizens are to have access to documents, it contains two categories
of exceptions. The first category is worded in mandatory terms and provides
that the institutions will refuse access to any document where disclosure
could undermine, *inter alia* , the protection of the public interest
in cases in which the issues at stake refer to public security, defence
and military matters, international relations, financial, monetary or
economic policy, privacy and the integrity of the individual[(5)](#(5)){#Footnote5}.
The second category of exceptions concerns the protection of commercial
interests, court proceedings and legal advice, documents related to inspections,
investigations and audits, documents for internal use in pending matters,
which may justify a refusal of access if and only if there is no overriding
public interest in disclosure, for which a balancing of interests has
to be carried out[(6)](#(6)){#Footnote6}.

However, as the Community courts have stated in relation to the provisions
of the previous legislation, the exceptions to public access to documents
have to be interpreted and applied restrictively, so as not to frustrate
the application of the general principle of giving the public the widest
possible access to documents[(7)](#(7)){#Footnote7}.

1.4 The Ombudsman notes that, as the Community courts have held in the
context of decisions taken by both the Council and the Commission to refuse
access on the basis of the exception relating to the protection of the
public interest in the field of international relations, the responsible
institution exercised in those cases a discretion which is among the political
responsibilities conferred on it by provisions of the Treaties. In those
circumstances, the scope of review has been limited to verifying whether
the procedural rules have been complied with, the decision at issue is
properly reasoned and the facts have been accurately stated, and whether
there has been a manifest error of assessment of the facts or a misuse
of powers[(8)](#(8)){#Footnote8}.

Taking account of the above case law, the Ombudsman considers that his
own review of the substance of the Commission's decision in the present
case should focus on whether it is reasonable.
*++Alleged failure to demonstrate impairment of the protection of the
public interest++*   

1.5 The complainant argues that the Commission erred in its overly broad
interpretation of Art. 4 (1) of the Regulation, since it has not been
able to demonstrate that disclosure would undermine the protection of
the public interest as regards international relations. In the complainant's
view, the Commission's argument only demonstrates that international relations
may be affected by the release of the requested documents.

The Commission takes the view that since it was assigned the task of
negotiating international trade agreements in the framework of the WTO
on behalf of the EC and the Member States, the public interest should
be to enable a successful conclusion of the negotiations. In order to
do so, the institution has to abide by the traditional manner of trade
negotiations in the context of the WTO, whereby bids and counter bids
are confidentially exchanged among the parties.

1.6 The Ombudsman notes that a limitation of public access based on the
protection of public interest as regards international relations can only
be triggered under limited circumstances. It is apparent from the Community
courts' case-law regarding the application of identical provisions in
the context of Decisions 93/731/EC and 94/90/EC that the responsible institution
is obliged to consider in respect of each requested document or each category
of documents[(9)](#(9)){#Footnote9} whether, in the light
of the available information, disclosure is likely to undermine the public
interest as regards, among others, international relations[(10)](#(10)){#Footnote10}.
Furthermore, if this exception is to apply, the risk of the public interest
being undermined must be reasonably foreseeable and not purely hypothetical[(11)](#(11)){#Footnote11}.

The Ombudsman is also aware that, as the Community courts have stated,
refusal of access to the requested documents must be founded on an analysis
of factors specific to either the contents or the context of each document
or each category of documents, from which it can be concluded that, because
of certain specific circumstances, disclosure of such document or category
of documents would pose a danger to a particular public interest[(12)](#(12)){#Footnote12}.

1.7 In this instance, the Commission came to the conclusion that disclosure
of the requested documents would impair the protection of the public interest
as regards international relations, taking into consideration the context
in which these documents were being produced, namely the international
trading negotiation process in which the institution was involved. The
Ombudsman notes that the Commission considered that the nature of the
negotiations taking place within the WTO framework did not allow public
access. It has been explained that by general consensus, trade negotiations
within the WTO traditionally involve a confidential exchange of offers
and counteroffers, whose disclosure to third parties would disrupt the
process and endanger the successful conclusion of the negotiations.

1.8 The Ombudsman finds that, should the context of these international
negotiations reflect the Commission's description of the negotiation process,
it could not then be concluded that the Commission made an unreasonable
assessment in deciding that disclosure of the documents at issue was likely
to undermine the public interest in the field of international relations.

It appears necessary, therefore, to corroborate whether this description
of the nature of the negotiation method has been accurately stated, or
whether, in the light of the evidence, there appears to have been an unreasonable
assessment of these facts.
*++Nature of the method of negotiation in the WTO++*   

1.9. The complainant argues that the Commission provided no information
as to why the WTO method of negotiation was to be considered traditional,
or in what context the method had been generally agreed upon. In his view,
the fact that a method of negotiation might be traditional or generally
agreed upon would not be sufficient to justify withholding the requested
documents. The Commission notes, however, that the reference to the traditional
nature of the negotiations which is generally agreed upon by all partners
is to be found in paragraph 11 of the WTO's Guidelines and procedures
for the negotiations on trade in services.

1.10 The Ombudsman notes that the WTO's Guidelines and Procedures for
the Negotiations on Trade in Services of 29 March 2001, adopted by the
Special Session of the Council for Trade in Services, and therefore applicable
to the European Union as a member to the WTO, provides in point 11 that,
> *"Liberalisation shall be advanced through bilateral, plurilateral
> or multilateral negotiations. The main method of negotiation shall be
> the request-offer approach".*

Even though the content of the request-offer approach has not been formally
spelled out in a legal text, the Ombudsman notes that -as the Commission
has explained- the practice has developed through the years through what
appears to be a long-standing international custom. On the basis of this
long-standing practice, the request-offer approach has traditionally involved
a confidential exchange of offers and counteroffers among the parties
to the negotiation. In this context, disclosure of these documents to
third parties appears to have been excluded since it might disrupt the
process and endanger the successful conclusion of the negotiations.

1.11 Having reviewed all available information, the Ombudsman finds that
the factual existence of this customary method of negotiations has not
been called into question and therefore appears undisputed. Notwithstanding
the complainant's suggestion that a different negotiation procedure might
have been established, and indeed, that the Commission should have made
such proposal at the outset, the Ombudsman notes that neither the customary
nature of the request-offer approach in the context of the WTO negotiations
nor its very existence, have been questioned.

In light of the foregoing, and taking into account the context in which
the trade negotiations in the framework of the WTO took place, the Ombudsman
considers that the Commission did not appear to make an unreasonable assessment
in deciding that disclosure of the documents at issue was likely to undermine
the public interest in the field of international relations.

The Ombudsman has therefore concluded that there appears to be no maladministration
as regards this aspect of the case.

1.12 The Ombudsman finds, however, that even if the limitations on public
access imposed by the nature of the negotiations within the WTO framework
are legally acceptable, regard has to be had to the expectations of many
citizens towards greater transparency and openness in this important policy
area, as the complaint to the Ombudsman illustrates. Particularly so,
in view of the recognition of the importance of transparency in the WTO's
Guidelines and Procedures for the Negotiations on Trade in Services which
in its point 9 provides that negotiations shall be transparent and open
to all Member and acceding State.

In the Ombudsman's view, transparency cannot be attained by entirely
excluding public access to information. The Ombudsman believes that it
would therefore be advisable for the Commission to consider additional
means which may render these negotiations more open and transparent for
the citizens, and thus facilitate public access to the exchanges among
the parties.

The Ombudsman will address a further remark to the Commission to this
effect below.
*++No balancing of the interests at stake++*   

1.13 The complainant alleges that the Commission had not properly weighed
up the competing public interests as required by the Regulation, which
demands a balancing exercise between the public interest, as regards international
relations, and the public interest in access to information. The Commission
argues, on the contrary, that the protection of international relations
constitutes a mandatory exception, and is therefore not subject to any
further balancing of interests.

1.14 As already stated above in the decision, the Ombudsman notes that,
in contrast to the exceptions contained in Articles 4 (2) \[protection
of commercial interests, court proceedings and legal advice, documents
related to inspections, investigations and audits\] and 4 (3) \[documents
for internal use in pending matters\] of the Regulation, those contained
in Article 4 (1), which includes the protection of the public interest
as regards international relations, are not subject to an overriding public
interest in disclosure. Accordingly, the institution concerned has an
obligation to refuse access if disclosure of a document would undermine
the public interest as regards international relations.

The Ombudsman is mindful of the fact that the Community legislator has
determined that, in a case where the disclosure of a document would undermine
the public interest as regards international relations, the latter interest
outweighs any public interest in the disclosure of the document. The Ombudsman
does not, therefore, consider that the complainant's argument that the
Commission failed to carry out a balancing of the interests at stake is
sustainable.
*++Failure to apply the exception in a restrictive manner++*   

1.15 The complainant argues that Commission's interpretation of the exception
based on the protection of the public interest regarding international
relations had been interpreted in an unnecessarily broad manner so as
to substantially and disproportionately prejudice the right of access
to information, to which Art. 4 (1) is only an exception. The Commission
considers that its interpretation of the notion of the protection of the
public interest as regards international relations was strictly confined
to a concrete context, and thus carried out in a restrictive manner.

1.16 Taking into account the mandatory nature of the exception based
on the protection of the public interest regarding international relations
as explained above in paragraphs 1.3 and 1.14 of the decision, and in
view of the conclusions reached above in paragraph 1.11, namely that the
Commission did not appear to make an unreasonable assessment in deciding
that disclosure of the documents at issue was likely to undermine the
public interest in the field of international relations, the Ombudsman
finds that the Commission acted in accordance with its legal obligations,
and therefore that there appears to be no maladministration as regards
this aspect of the case.
**2 Disclosure of the requested documents**   

2.1 The complainant claims that the requested documents be disclosed.

2.2 Taking into consideration the above findings, the Ombudsman does
not consider it necessary to deal with the complainant's claim.
**3 Conclusion**   

On the basis of the Ombudsman's inquiries into this complaint, there
appears to have been no maladministration by the Commission. The Ombudsman
therefore closes the case.

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

FURTHER REMARK
--------------

The Ombudsman finds that even if the limitations on public access imposed
by the nature of the negotiations within the WTO framework are legally
acceptable, regard has to be had to the expectations of many citizens
towards greater transparency and openness in this important policy area.
Particularly so, in view of the recognition of the importance of transparency
in the WTO's Guidelines and Procedures for the Negotiations on Trade in
Services. Transparency cannot be attained by entirely excluding public
access to information. The Ombudsman believes that it would therefore
be advisable for the Commission to consider additional means which may
render these negotiations more open and transparent for the citizens,
and thus facilitate public access to the exchanges among the parties.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

*** ** * ** ***

[(1)](#Footnote1){#(1)} Regulation (EC) No 1049/2001
of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents
(OJ L 145, 31.05.2001, p. 43).

[(2)](#Footnote2){#(2)} OJ L 340, 31.12.1993, p. 43.

[(3)](#Footnote3){#(3)} OJ L 46, 18.2.1994, p. 58.

[(4)](#Footnote4){#(4)} Whereas (4), Regulation 1049/2001.

[(5)](#Footnote5){#(5)} Article 4 (1), Regulation 1049/2001.

[(6)](#Footnote6){#(6)} Article 4 (2)-(3), Regulation
1049/2001.

[(7)](#Footnote7){#(7)} Case T-309/97 *Bavarian Lager
v Commission* \[1999\] ECR II-3217 par. 39 (see reference to case law
mentioned herein).

[(8)](#Footnote8){#(8)} Case T-14/98 *Heidi Hautala
v Council* \[1999\] ECR II-02489 par. 72; case T-204/99 *Olli Mattila
v Council and Commission* \[2001\] ECR II-02265 par. 59; case T-211/00
*Aldo Kuijer v Council* \[2002\] ECR II-0485 par. 53.

[(9)](#Footnote9){#(9)} Case T-105/95 *WWF UK v Commission*
\[1997\] ECR II-313, par. 64.

[(10)](#Footnote10){#(10)} Case T-174/95 *Svenska Journalistförbundet
v Council* \[1998\] ECR II-2289, par. 112.

[(11)](#Footnote11){#(11)} *Supra* , case T-211/00
*Aldo Kuijer*, par. 56.

[(12)](#Footnote12){#(12)} *Supra* , case T-211/00
*Aldo Kuijer*, par. 61.