Background to the complaint

1. In October 2022, the EU delegation to Egypt announced that the “European Commissioner for Neighbourhood and Enlargement [...] launched with the Egyptian Ministry of Foreign Affairs and the Egyptian Ministry of Defence, the first phase of a new EUR 80 million programme to enhance border management, search and rescue at land and sea”[1]. The Commission Directorate-General for Neighbourhood and Enlargement Negotiations (DG NEAR) announced in parallel an agreement on a package to enhance EU-Egypt cooperation in migration management, with the International Organization for Migration (IOM) and CIVIPOL[2].

2. According to an “Action Document” published by the Commission in October 2022, the package corresponded to an action funded under the EU Neighbourhood, Development and International Cooperation Instrument (NDICI) budget of 2022, its main priority being “to support the Egyptian Government in coping with the migration challenges it is facing at its maritime and land borders”[3].

3. In June 2023, the complainant, a journalist, requested public access to the agreement between the EU and Egypt signed in October 2022[4]. They also requested access to all documents containing information related to this agreement.

4. In July 2023, the Commission issued its initial reply identifying twelve documents[5], which included the “Contribution Agreement”[6] between the EU, IOM and CIVIPOL[7], and related contractual documents. It granted access to one of the twelve documents[8] and refused access to the remaining documents in their entirety, invoking several exceptions to disclosure under the EU legislation on public access to documents (Regulation 1049/2001)[9].

5. In particular, the Commission invoked the protection of the public interest as regards public security[10]. It stated that the documents contain sensitive operational information on the activities of IOM in terms of capacity building initiatives on border management and search and rescue at land and sea in Egypt. The Commission stated that the release of the information could put at risk IOM's and partner organizations' personnel, IOM partners, and Egyptian authorities.

6. The Commission also invoked the protection of the public interest as regards international relations[11]. The Commission stated that the specific sensitive information in the documents was shared with DG NEAR confidentially as part of the relationship between IOM, CIVIPOL and DG NEAR and was not designed for external communication purposes. The disclosure of these documents, according to the Commission, might lead to misunderstandings regarding the nature of EU-funded activities implemented by IOM in Egypt, with the effect of negatively impacting international relations with Egyptian authorities and partner organisations.

7. The Commission also relied on the need to protect personal data[12], as well as commercially sensitive information[13]. Regarding the latter, the Commission stated that the documents at issue include specific conditions applicable to the IOM activities negotiated with DG NEAR. The documents also contain, according to the Commission, detailed information on the project including regarding IOM activities, timelines, outcomes, risks and budget. The Commission considered that this information, if released, could jeopardise IOM's advantage in terms of cost-effectiveness and efficiency over other entities that may also apply for funding from the EU. The documents, if disclosed, could also, according to the Commission, severely interfere not only with the IOM’s negotiations with other partners involved in Egypt, and possibly elsewhere, but also with other programmes. The Commission added that it did not identify an overriding public interest in disclosure.

8. In July 2023, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’). They contended that the migration deal between the EU and Egypt is of public interest and therefore expressed surprise that the Commission did not provide access to at least parts of the documents. The complainant also stated that they were open to any constructive solution that would allow for greater access to these documents.

9. In August 2023, the Commission extended the time limit to issue its final decision to 1 September 2023. In September 2023, the complainant asked the Commission for an update and, in the absence of a reply, turned to the Ombudsman.

The inquiry

10. The Ombudsman opened an inquiry into how the Commission handled the complainant’s request for public access.

11. Although the inquiry initially focused on securing a final decision on the complainant’s access request, in light of the persisting delay, the Ombudsman inquiry team inspected the eleven documents to which access was denied. Following a review of the documents, the Ombudsman made a proposal for a solution that the Commission grant the widest possible access to the documents at issue.

12. The Commission replied, after a very significant delay, to the complainant’s confirmatory application and, several months later, to the Ombudsman’s proposal for a solution. The complainant informed the Ombudsman inquiry team that they are satisfied with the access granted following the adoption of the confirmatory decision.

The Ombudsman's proposal for a solution

13. In her proposal for a solution of January 2024[14], the Ombudsman acknowledged that EU institutions enjoy a wide margin of discretion when deciding on what the protection of the public interest as regards public security and international relations calls for in terms of disclosure of documents[15]. However, the Ombudsman stressed that the institutions are still required to demonstrate a `specific and actual risk’ undermining that public interest.

14. The inspection showed that most of the information related to the operations or activities planned by the contractor, and the information describing the situation in Egypt, appears to have already been made public in an “Action Document” published by the Commission on 11 October 2022[16]. As a result, the Ombudsman concluded that it was not readily clear how (partial) disclosure of the documents could pose a serious and foreseeable risk to public security or to international relations.

15. Regarding the contractual arrangements, the Ombudsman noted that they seem to correspond to standard clauses that are published on the Commission’s website[17], similar to the “General Conditions”, to which the Commission granted full access. It was thus not clear why the Commission refused access to the contractual documents in their entirety.

16. Regarding the budget set out as an annex to the contract, the Ombudsman reminded the Commission that, when applying the exception protecting commercial interests[18], EU institutions have to explain how disclosure would specifically and actually undermine the legitimate commercial interests at stake[19]. She added that the public should be adequately informed about the implementation of projects financed using public money, as stated in the EU Financial Regulation[20].

17. The Ombudsman therefore proposed that the Commission review its initial position on the complainant’s public access request with a view to granting the widest possible access to the documents requested.

18. Following the Ombudsman’s solution proposal, the Commission replied to the complainant’s confirmatory application in April 2024.

19. The Commission granted wider access to the documents already identified at initial stage. It granted full access to three documents that seemed to correspond to standard clauses in contribution agreements. It granted wide access[21] to the special conditions of the contribution agreement at issue, as well as to cover letters. It refused access to three documents in their entirety, invoking the protection of commercial interests[22] and personal data.

20. The Commission also identified ten additional documents to which it granted (wide) partial access.

21. In September 2024, the Commission replied to the Ombudsman’s proposal for a solution.[23] It provided an overview of the confirmatory decision and concluded that the widest possible access has now been granted to the documents at issue.

22. The complainant informed the Ombudsman that they are satisfied with the access granted.  

The Ombudsman's assessment after the proposal for a solution

23. The Ombudsman welcomes the Commission’s positive response to her solution proposal and the wider access now given to the documents at issue.

24. That said, it is regrettable that the Commission refused access to two documents in their entirety, which the Ombudsman considered could at least be partially disclosed (namely, two annexes to the contribution agreement, describing the action and detailing the budget). However, considering that the complainant is satisfied with the access granted, the Ombudsman concludes that the Commission’s confirmatory decision and its reply to her proposal for a solution have resolved the complaint as to the access granted[24].  

25. The Ombudsman notes, however, the very significant delay incurred by the Commission in replying to the complainant’s confirmatory application. According to Regulation 1049/2001, an EU institution should, within 15 working days from registration of the confirmatory application, either grant access to the document requested or, in a written reply, state the reasons for the total or partial refusal. The time limit of 15 working days may be extended by a further 15 working days in exceptional circumstances.[25]

26. In this case, it took the Commission nine months to adopt a confirmatory decision. This case is thus another example of the significant and systemic delays the Commission encounters in dealing with confirmatory applications, which the Ombudsman considered to amount to maladministration[26]. Following a Special Report of the Ombudsman to the European Parliament on the matter, the European Parliament urged the Commission to correct its systematic and significant delays in processing requests for public access to documents.[27]

27. The Ombudsman profoundly regrets the delay incurred by the Commission in replying to the complainant’s request, considering, in particular, the significant public interest in agreements with third countries related to migration management and the importance of public scrutiny thereof[28].

Conclusions

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

Since the Commission has provided wider access to the requested documents, the complaint is considered resolved.

The Ombudsman profoundly regrets the delay incurred by the Commission in replying to the complainant’s request (9 months at review stage). Failure to comply with the time limits established by the legislature in Regulation 1049/2001 cannot be good administration. She again urges the Commission to improve its handling of public access requests as a matter of priority, and refers it to the recommendation in her strategic inquiry OI/2/2022/OAM.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 06/11/2024

 

[1] https://enterprise.press/wp-content/uploads/2022/10/Border-Management-EN-30102022.pdf

[2] https://south.euneighbours.eu/news/new-package-to-enhance-eu-egypt-cooperation-in-migration-management/.

[3] Published on 11 October 2022 as an annex to the Commission Implementing Decision of 4.10.2022 on the financing of the individual measure for the multi-country migration programme in favour of the Southern Neighbourhood for 2022, available at: https://neighbourhood-enlargement.ec.europa.eu/commission-implementing-decision-4102022-financing-individual-measure-multi-country-migration_en , see Annex IV: https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-10/C_2022_6933_F1_ANNEX_EN_V1_P1_2132169.PDF

[4] They referred to the following press article: https://www.euronews.com/2022/10/31/egypt-eu-migration.

[5] As explained in the initial reply of the Commission to the request for public access, the Commission unilaterally restricted the scope of the request to 12 documents, due to the very large number of pages of the documents it first identified (in 24 documents), and in the absence of a response on this scope from the applicant.

[6] As explained by the Commission: “The Commission may delegate the implementation of EU-funded projects to partner organisations (so-called ‘indirect management’). In this set-up, partner organisations are fully in charge of the implementation of the project on the ground. However, the Commission remains accountable to the Parliament and Council for the proper use of the funds. [...] Individual projects to be implemented by Partner organisations are subject to the conclusion of so-called Contribution Agreements, which contain, among others, the description and planning of the activities, the budget and the contractual provisions (including any arrangements concluded through FFPAs) applicable to the EU-funded project.” https://international-partnerships.ec.europa.eu/funding-and-technical-assistance/guidelines/working-partner-organisations_en.

[7] Announced on 31 October 2022 (https://south.euneighbours.eu/news/new-package-to-enhance-eu-egypt-cooperation-in-migration-management/) and entitled “Strengthening the operational capacity of the Egyptian Coast Guard and Egyptian Border Guards to manage migration flows through effective border surveillance and search and rescue at land and sea”.

[8] The “general conditions” for the Contribution Agreement.

[9] 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.

[10] Article 4(1)(a) first indent of Regulation 1049/2001.

[11] Article 4(1)(a) third indent of Regulation 1049/2001.

[12] Under article 4(1)(b) of Regulation 1049/2001.

[13] Under article 4(2) first indent of Regulation 1049/2001.

[14] The full text of the Ombudsman’s proposal for a solution is available at: https://www.ombudsman.europa.eu/solution/195116.

[15] See, for example, judgment of the General Court of 27 November 2019, Izuzquiza and Semsrott v. Frontex, T-31/18, EU:T:2019:815, para. 63-66, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=221083&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=631205.

[16] As Annex IV to Commission Decision of 4 October 2022 on the financing of the individual measure for the multi-country migration programme in favour of the Southern Neighbourhood for 2022, available at: https://neighbourhood-enlargement.ec.europa.eu/commission-implementing-decision-4102022-financing-individual-measure-multi-country-migration_en.

[17] See the Commission’s manual on contribution agreements available at: https://international-partnerships.ec.europa.eu/system/files/2023-07/contribution-agreement_manual_en.pdf, and for example: https://international-partnerships.ec.europa.eu/system/files/2023-07/contribution-agreement-annex-iia_en.pdf.

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

[19] See, for example, judgment of 15 December 2021, Breyer v. European Research Executive Agency, T-158/19, EU:T:2021:902, paragraph 87, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019TJ0158.

[20] “[...] citizens should know where, and for what purpose, funds are spent by the Union. Such information fosters democratic debate, contributes to the participation of citizens in the Union’s decision-making process, reinforces institutional control and scrutiny over Union expenditure, and contributes to boosting its credibility”, recital 11 of Regulation 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1046; repealed on 23 September 2024 by Regulation 2024/2509 (recast), see recital 33, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32024R2509.  

[21] Redacting only personal data or the legal entity number considered as commercially sensitive information.

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

[23] The Commission’s reply is available at:  https://www.ombudsman.europa.eu/doc/correspondence/195117.

[24] The scope of this inquiry was limited to the documents identified at initial stage. Therefore, the present decision does not cover the extent of the access to the documents newly identified at confirmatory stage.

[25] Article 8 of Regulation 1049/2001.

[26] Recommendation on the time the European Commission takes to deal with requests for public access to documents (strategic inquiry OI/2/2022/OAM)

[27] See https://www.europarl.europa.eu/doceo/document/TA-9-2024-0172_EN.html

[28] See for example Decision of the European Ombudsman on how the European Commission intends to guarantee respect for human rights in the context of the EU-Tunisia Memorandum of Understanding (OI/2/2024/MHZ), available at: https://www.ombudsman.europa.eu/en/decision/en/193851; Decision of the European Ombudsman in the joint inquiry into complaints 506-509-674-784-927-1381/2016/MHZ against the European Commission concerning a human rights impact assessment in the context of the EU-Turkey Agreement, available at: https://www.ombudsman.europa.eu/en/decision/en/75160