Background to the complaint

1. The complainant, a small news agency based in Germany, asked Eurostat (the statistical office of the EU, which is a directorate-general of the European Commission) to include it on a mailing list for embargoed[1] press releases concerning ‘Euro indicators’[2].

2. Eurostat informed the complainant that, in order to be included on its embargo distribution list, a journalist or the news agency for which they work must provide proof that they have media accreditation with the EU institutions in Brussels[3], which is handled by the European Commission.

3. When the complainant asked the Commission how to obtain accreditation, the Commission explained that media accreditation can only be granted to individuals – media professionals working for a “bona fide organisation” – who legally reside in Belgium or work for an agency that has a domicile in Belgium.[4]

4. Dissatisfied with the replies received from Eurostat and the Commission, the complainant turned to the Ombudsman.

The inquiry

5. The Ombudsman opened an inquiry into how the Commission handled the complainant’s request to be added to the embargo list.

6. In the course of the inquiry, the Ombudsman received the reply of the Commission on the Ombudsman’s request for reply. As the Commission could not reply to questions related to the preconditions applied by Eurostat on their press material, the Ombudsman also requested and received a reply from Eurostat. The Ombudsman received the comments of the complainant in response to the Commission’s and Eurostat’s replies.

Refusal to add the complainant to the mailing list for EU statistics with an embargo marking

Arguments presented to the Ombudsman

From the complainant

7. The complainant argued that it was wrong that, in order to get embargoed press information from Eurostat, a media organisation (or its employees) must be resident in Belgium. In the complainant’s view, this undermines impartial and equal access to EU statistics, which violates the relevant EU law.[5]

8. The complainant added that the rules essentially favour large news agencies that can afford to have staff in Belgium, without any valid justification.

From the Commission

9. The Commission said that the purpose of the inter-institutional media accreditation is to enable physical (and when applicable remote) access to the press zones of the EU institutions. Therefore, since the accreditation card holders have access to the physical premises of the institutions, they must undergo a security screening. The security screening is carried out by the security services of the host country (Belgium), which is why applicants must be domiciled in Belgium.

10. Regarding the conditions for being added to the Commission’s mailing lists, the Commission noted that the inter-institutional accreditation is not a condition for joining all mailing lists. However, it is the Commission’s standard practice to require accreditation for mailing lists concerning embargoed information. In those cases, an accredited journalist and the editor-in-chief (or media director of the media organisation for which the journalist works) commit to respecting the embargo by signing a declaration.[6] In doing so, they also acknowledge that, in case of a breach, there are sanctions, such as being excluded from receiving press material or access to the off-record briefings. Requiring journalists to have media accreditation enables the Commission to implement those sanctions in case of a breach.

From Eurostat

11. Concerning the conditions for receiving Eurostat’s press material, Eurostat referred to relevant EU rules on European statistics[7] and the European Statistics Code of Practice.[8] According to that code, all users have equal access to statistical releases at the same time and any privileged pre-release access under embargo is limited, controlled and publicised.[9] The detailed rules for the pre-release access under embargo can be found in the Protocol on impartial access to Eurostat for data users, which states that “Euro-indicator news releases are transmitted under embargo to accredited news agencies in Brussels”.[10] Eurostat said that those rules are fully in line with the Commission’s standard practice. It also agreed with the Commission that requiring accreditation serves as a safeguard against information being leaked, and ensures controlled access to not-yet-released information.

12. Eurostat disagreed that its rules undermine impartial access to statistical information and/or equal treatment of media organisations. In Eurostat’s view, the Commission treats all journalists equally: the conditions for accreditation are the same, and each journalist receives accreditation if they meet those conditions.[11] Furthermore, it does not prevent journalists from receiving the ‘Euro indicators’ once they are made public.

13. Lastly, Eurostat said that it did not see any alternative way to enable non-accredited media organisations to receive the ‘Euro indicators’ before they are made public.

From the complainant

14. The complainant argued that having earlier access to information, even when it cannot be published before lifting the embargo, creates a significant advantage for media organisations. Furthermore, the complainant contended the ‘Euro indicators’ are sent to news agencies, not to the individual accredited journalists. Therefore, when a news agency receives the information, it can already distribute it to its daughter or sister companies before the embargo is lifted.

15. The fact that a news agency must, in practice, have a permanent journalist residing in Belgium, favours large news agencies that can afford to finance this, and places smaller agencies or publications at a disadvantage.

16. Furthermore, the complainant pointed out that Eurostat is based in Luxembourg, not Belgium. Therefore, the argument that the Belgian residence requirement helps ensure accountability does not apply. The complainant pointed out that the relevant sanction for breaking an embargo is exclusion from the distribution list. This can be done regardless of the journalist’s place of residence.

17. The complainant disagreed that there are no alternative measures available. For example, Eurostat could include media companies whose employees have permanent accreditation with the relevant national authority in any EU Member State or otherwise check in many other ways whether the company is ‘genuine’, for example by checking published content. As Eurostat itself says in its guidelines, the threat of exclusion from the preferred list is the best protection against any abuse.

18. The complainant claimed the Commission should either change the rules so that Belgian residence is no longer a mandatory precondition for journalists or news agencies to receive information under embargo, or it should abandon privileged access to embargoed information and provide the information to all news agencies, accredited or not, at the same time.

The Ombudsman's assessment

19. It is up to any EU body to decide whether to issue information to the media under embargo and to create an embargoed mailing list. If they decide to do so, the EU institutions are in principle also free to decide whom to include on such mailing lists. However, the conditions for being included on such a list should be transparent, proportionate and non-discriminatory.

20. Furthermore, as with any other European statistics, ‘Euro indicators’ must be disseminated in line with the principle of impartiality, which means in a neutral manner and treating all users equally.[12] This includes equal access to statistical releases at the same time. Any privileged access to European statistics should be limited, well-justified, controlled and publicised.[13]

21. The Ombudsman understands that the purpose of providing the embargoed ‘Euro indicators’ only to news agencies with EU media accreditation appears to be to limit access and ensure Eurostat can enforce the applicable conditions, also regarding unauthorised use. While it is legitimate to want to limit access and enforce the conditions, also taking into account the potentially market-sensitive character of the data, the Ombudsman is not convinced that the appropriate way to do so is by requiring EU media accreditation, given the requirements that apply to this, notably regarding Belgian domicile.

22. More generally, the Ombudsman is not convinced that it is proportionate and necessary to apply the same rules, including the Belgian residence requirement, to (i) journalists seeking physical access to the press zones of the EU institutions, and to (ii) journalists who merely wish to be added to embargoed mailing lists.

23. The Ombudsman agrees that the residence requirement may be justified on the grounds of public security, as long as it serves the purpose of enabling physical access to the EU institutions in Brussels. However, it is difficult to understand how the same requirement can be justified for inclusion on embargoed mailing lists.

24. It is highly likely that the requirement to have a journalist domiciled in Belgium favours not only media organisations based in Belgium but also organisations with larger budgets and staff. Many legitimate news agencies or journalists may have no interest or need at all to access the buildings of the EU institutions in Brussels, but have a legitimate and justifiable interest in accessing embargoed material. This is increasingly true in the context of online media.

25. In the specific case of Eurostat, it is even more difficult to see how having a Belgian residence could enable better contact with Eurostat, which is based in Luxembourg, or enable Eurostat to better enforce the conditions applying to embargoed information.

26. More generally, it is the Ombudsman’s view that there are other, less restrictive means than a domicile requirement to make sure that embargo agreements are respected and such material is distributed only to trustworthy recipients – for example, considering whether the entity is a body accredited with the relevant national authority in its own Member State, requiring participants to sign a declaration setting out the conditions for receiving embargoed information, and the sanctions in case of non-compliance. Given the sanctions typically involved, such as the removal of the related access rights and privileges, it is hard to see how a domicile requirement is proportionate or necessary.

27. While the Ombudsman agrees that thorough prior checks are necessary to ensure a proper functioning of the embargo system, she finds that there is no valid justification for coupling EU media accreditation, and the requirements that apply, with access to embargoed material. The current rules are at odds with the principle of proportionality and amount to maladministration.

28. Given that it is for the Commission to determine the conditions for access to embargoed lists, the Ombudsman does not consider it appropriate to make a prescriptive recommendation. She invites the Commission to report back within six months on the action it has taken to address the situation.

Conclusion

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

There was maladministration by the European Commission by requiring that, in order to be included on embargoed mailing lists, journalists or news agencies must have a Belgian domicile.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 11/11/2024

 

[1] An embargoed release is a document that is shared with journalists before its official release date, but with a strict agreement that the information contained within it cannot be published until a specific time and date.

[2] ‘Euro indicators’ provide general economic information on the euro area, European Union and individual Member States. More information is available here: https://ec.europa.eu/eurostat/web/euro-indicators.

[3] The European Commission grants media accreditation to journalists, photographers and TV crews, who meet certain conditions. This enables them to access the buildings of the European Commission, the European Parliament and the Council of the EU, and to access other related services: https://commission.europa.eu/about-european-commission/contact/press-services/media-accreditation_en.

[4] The Commission also provided a link to the above webpage on media accreditation, which includes other conditions.

[5] Articles 2(1)(b) and 18(1) of Regulation (EC) No 223/2009 of the European Parliament and of the Council of 11 March 2009 on European statistics and repealing Regulation (EC, Euratom) No 1101/2008 of the European Parliament and of the Council on the transmission of data subject to statistical confidentiality to the Statistical Office of the European Communities, Council Regulation (EC) No 322/97 on Community Statistics, and Council Decision 89/382/EEC, Euratom establishing a Committee on the Statistical Programmes of the European Communities, OJ 2009 L 87, p. 164.

[6] ‘Declaration of acknowledgement of the Spokesperson’s Service’s embargo conditions’

[7] Article 1 of Regulation (EC) 223/2009 on European statistics, available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32009R0223.

[8] Available at: https://ec.europa.eu/eurostat/documents/4031688/8971242/KS-02-18-142-EN-N.pdf/e7f85f07-91db-4312-8118-f729c75878c7?t=1528447068000.

[9] Principle 6: Impartiality and Objectivity of the European Statistics Code of Practice, namely Point 6.7: “Statistical authorities independently decide on the time and content of statistical releases, while taking into account the goal of providing complete and timely statistical information. All users have equal access to statistical releases at the same time. Any privileged pre-release access to any outside user is limited, well-justified, controlled and publicised. In case of breach, pre-release arrangements are reviewed so as to ensure impartiality” (emphasis added).

[10] The Protocol is not publicly accessible online. The last point of the Protocol reads as follows: “Embargo procedures for accredited news agencies: Euro-indicator news releases are transmitted under embargo to accredited news agencies in Brussels one hour before official release with the exception of the flash estimates of HICP and GDP which are transmitted 30 minutes before official release” (emphasis added).

[11] Here Eurostat only referred to the Commission’s rules.

[12] See Article 2(1)(b) of Regulation (EC) 223/2009 on European statistics: “The development, production and dissemination of European statistics shall be governed by the following statistical principles: [...] ‘impartiality’, meaning that statistics must be developed, produced and disseminated in a neutral manner, and that all users must be given equal treatment [...]”.

[13] See footnote 9 above.