# Decision of the European Ombudsman closing his inquiry into complaint 1947/2010/PB against the European Commission
- Author: European Ombudsman
- Date: 2013-10-03T00:01+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/decision/en/51882)
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> The cases concerned the Commission's general policy not to grant public access to documents that concern ongoing investigations about possible infringements of EU law by Member States. EU citizens living in Denmark had the impression that the Commission's Directorate-General for the Environment ('DG Environment') adopted a more open practice around the years 2006-2007. When it subsequently reverted to the Commission's above-mentioned policy, these citizens asked for justifications and suggested that the more open practice should continue to be followed. Since they were not satisfied with the Commission's replies, they turned to the European Ombudsman.
> 
> The cases raised two main issues. First, whether it was maladministration of the Commission not to continue DG Environment's more open practice referred to above. Second, whether the Commission could and should generally adopt practices that would allow for more openness in its handling of infringement cases.
> 
> The Ombudsman found no maladministration in relation to the first issue. With regard to the second issue, the Ombudsman made a number of recommendations to give the Commission the opportunity to pursue a more open approach to its handling of infringement case. The Commission decided not to accept these recommendations.
> 
> In his decisions, the Ombudsman noted, in summary, that the Commission's rejection is based on the presumption that greater openness will always harm its ability to ensure compliance with EU law by the Member States. The Ombudsman, however, took the view that the Commission's ability to ensure compliance with EU law will rather be strengthened if it allows for greater openness in appropriate infringement cases. This is because greater openness allows for greater involvement of the public, including civil society, who may in fact support the Commission's efforts to ensure compliance with EU law.
> 
> However, the Ombudsman noted that the Commission's decision not to embrace the opportunity to make its practices more open does not constitute an instance of maladministration as such. This is because the Court's relevant case law appears to support the Commission's confidentiality practices.
> 
The background to the complaint
-------------------------------

**1.** The case mainly concerns the Commission's general policy not to grant public access to documents that concern ongoing investigations about possible infringements of EU law by Member States. EU citizens living in Denmark had the impression that, within its policy field, the Commission's Directorate-General for the Environment ('DG Environment') adopted a more open practice around the years 2006-2007. When DG Environment subsequently reverted to the Commission's above-mentioned general policy, these citizens asked for justifications and suggested that the more open practice should continue to be followed. Since they were not satisfied with the Commission's replies, they turned to the European Ombudsman.

**2.** The more detailed background to the case is, in summary, as follows.

**3.** In a letter preceding the opening of the present case, the complainant encouraged the Ombudsman to conduct an own-initiative inquiry into this matter. He wrote as follows:

"*It was with great interest that I read your decision closing the OI/2/2009/MHZ* [\[1\]](#_ftn1 ""){#_ftnref1}*, concerning the European Commission.*

*My interest in the matter is due to the fact that I have previously requested - and obtained - public access to two opening letters from the Commission. The two opening letters were sent to Denmark in May 2006, carrying the registration numbers 2006/2144, relating to the Habitats Directive, and 2006/2134, relating to the Birds Directive. The Danish authorities granted public access to these opening letters after the Commission's DG Environment informed it as follows:*

'*DG Environment has changed practice concerning public access, and will in the future grant public access to all documents relating to ongoing infringement procedures which concern public access and will in the future grant public access to all documents which relate to ongoing infringement procedures that concern inconsistencies between national and EU legislation. In fact, dissemination in cases like the present ones can facilitate the application and the useful effect of the directives in question. This circumstance will be considered to constitute an overriding public interest which justifies disclosure.*

*I can therefore inform you that we do not oppose public access with regard to the opening letters to Denmark, concerning the application of Directives 79/409/EEA and Directive 92/43/EEA*'.

*In light of the above, the Danish authorities granted public access to the documents in December 2006. The reasons for disclosure by the Danish Ministry for Environment, are, together with the opening letters, available on the following address: <http://www.blst.dk/NATUREN/Natura2000plan/sidebar/Seneste_nyt/aabningsskrivelser.htm>*

*Denmark subsequently received a supplementary opening letter as well as a reasoned opinion in case 2006/2134. The Danish authorities refused to grant me public access to these documents. Despite the change in practice referred to above, the Danish Ministry for Environment has continued to ask the Commission whether it can grant public access. The Commission now refuses to grant public access, referring to Regulation 1049/2001 and the Petri* \[e\]*-judgment, a refusal which the Danish government relies on.*

*It is interesting that you do not, in your own initiative inquiry, mention the openness practice adopted by the Commission in autumn 2006, as formulated in its above-quoted letter to the Danish government in November 2006.*

*I would therefore suggest that the European Ombudsman seeks to obtain clarification for the change of direction between November 2006 and 2009.*

*It is puzzling that the Commission has not informed the European Ombudsman that it implemented an openness policy in this field in 2006, a policy which has now been changed. It is a change in policy which the Commission apparently prefers to see passed over in silence, given that it did not inform the European Ombudsman of it in connection with the own initiative inquiry closed in 2009.*"

**4.** The Ombudsman informed the complainant that, rather than opening an own-initiative inquiry, he considered it more appropriate to examine possible complaints on the issue.

**5.** On 5 September 2010, the complainant submitted the present complaint.

**6.** The complainant informed the Ombudsman that, in 2009, he submitted an application for public access to a supplementary opening letter which the Commission had sent to Denmark.

**7.** The Commission replied negatively, informing the complainant that disclosure of the opening letter to a Member State is incompatible with the latter's right to confidentiality in infringement cases. It referred to the 2001 judgment of the Court of First Instance in the *Petrie* case[\[2\]](#_ftn2 ""){#_ftnref2}. On 3 May 2009, the complainant submitted a confirmatory application to the Commission's Secretariat-General. He drew the Commission's attention to the fact that a previous opening letter from the Commission concerning the infringement case in question had been published in 2006 on the website of the Danish Ministry for the Environment. He also asked the Commission whether there was any request from the Danish authorities not to disclose the opening letter that he had asked for in 2009. The complainant never received a reply to his confirmatory application.

The subject matter of the inquiry
---------------------------------

**8.** On 5 October 2010, the Ombudsman opened an inquiry into the following allegations and claims.

#### Allegations

1. The Commission failed to reply to the complainant's confirmatory application of 3 May 2009.

2. The Commission failed to explain to the complainant why, following a new practice in 2006, it again introduced a restrictive practice with regard to public access to opening letters to Member States in infringement cases.

3. The Commission failed to inform the complainant whether the Danish authorities had requested it to refuse public access to opening letters and their annexes.

#### Claims

1. The Commission should respond to the requests contained in the above allegations.

2. The Commission should reconsider introducing the practice that it adopted in 2006, allowing for greater public access to opening letters addressed to Member States.

The inquiry
-----------

**9.** On 9 March 2011, the Commission submitted its opinion on the complaint. The Ombudsman forwarded the opinion to the complainant, who submitted his observations on that opinion. The Ombudsman issued a draft recommendation on 18 July 2012, on which the Commission subsequently issued its opinion. The opinion was forwarded to the complainant who submitted observations.

**10.** It should be noted the before the Commission sent its above-mentioned opinion on 9 March 2011, the complainant sent a copy of the reply that he eventually received in response to his confirmatory application.

The Ombudsman's assessment
--------------------------

### Preliminary remarks

#### This case is similar with another case before the Ombudsman

**11.** As noted in his draft recommendation, the main issue in this case is very similar to that raised in another case, that is, case 2207/2010/PB. The complainant and the Commission are aware of this fact. The Ombudsman's assessments of the two cases were coordinated.

**12.** In the case at hand, the common issues are reflected in the second allegation, which can usefully be examined through the following three headings: 'The existence of a new practice as from 2006'; 'The reasons for revoking the new practice'; 'The systemic issues raised regarding non-disclosure of infringement documents'.

**13.** Before assessing those issues, the Ombudsman will separately examine the first and third allegations.

#### The Commission's reply to the complainant's confirmatory application

**14.** As noted in paragraph 10 above, following the opening of the inquiry but before the Commission submitted its opinion, the complainant informed the Ombudsman that the Commission had replied to his confirmatory application. The reply, and a subsequent related statement in the Commission's opinion, are summarised here below.

**15.** In its detailed reply to the complainant, the Commission refused to provide access to the document concerned.

**16.** It first apologised for the late registration and handling of the complainant's confirmatory application. It stated that a thorough check of the relevant e-mail accounts had been carried out, and observed that the fact that the complainant's e-mail containing the confirmatory application did not appear amongst the incoming e-mails seemed to be due to a technical problem in the Commission's system.

**17.** The Commission then highlighted the context and object of the confirmatory application. It explained that it had sent a letter of formal notice to Denmark on 2 February 2009, in connection with the relevant infringement procedure (2006/2134). That procedure concerned the alleged inconsistency of Danish legislation with the EU's Birds Directive 79/409 (as amended). The infringement procedure was ongoing. The complainant was also a complainant with regard to the substantive issue just referred to (infringement complaint number 2007/4437), and was informed about the status of the Commission's investigation on 7 July 2010.

**18.** Under the title 'The Aarhus Convention', the Commission went on to state that, in his confirmatory application, the complainant had asked for the application to be handled in accordance with Directive 2003/4/EC concerning public access to environmental information. The Commission pointed out that this Directive, which implements part of the provisions of the Aarhus Convention, is addressed to the Member States, and that it therefore did not apply to the complainant's confirmatory application.

**19.** The Commission then referred to other legislation, Regulation 1367/2006[\[3\]](#_ftn3 ""){#_ftnref3}, which makes some of the Aarhus Convention's provisions binding on the EU institutions. The Commission noted that Regulation 1367/2006 expressly states that the definition of "*document* " in Regulation 1049/2001[\[4\]](#_ftn4 ""){#_ftnref4} comprises environmental information as defined in Regulation 1367/2006. Article 3 provides that Regulation 1049/2001 applies to any application for access to environmental information that is in the possession of the EU institutions. In light of the foregoing, the Commission concluded that the document to which the complainant in the present case requested public access contains environmental information, and that, therefore, both Regulation 1367/2006 and Regulation 1049/2001 are applicable.

**20.** The Commission also addressed the specific issue of whether public access could be granted in the present case. The Commission's negative conclusion was based on the following considerations.

**21.** The Treaty infringement procedure referred to in Article 258 TFEU implies two phases, that is, the administrative phase and the judicial phase. The purposes of the administrative phase are, first, to give the Member State in question the opportunity to bring the Treaty breach to an end, second, to grant the Member State the right to be heard, and third, to define the scope of the dispute in case the matter is submitted to the Court of Justice.

**22.** Letters of formal notice constitute the first step in the administrative procedure. In such letters, the Commission asks the Member State to put forward its comments on the concrete allegations, and to do so within a specified deadline. The supplementary letter referred to above indicates the possible breaches that the Commission became aware of through additional infringement complaints from citizens, as well as through its examination of the legislation and further information that Denmark provided.

**23.** The Commission's intention in issuing a supplementary letter of formal notice was to grant Denmark the right to be heard, before it decided whether to proceed to the next step.

**24.** The Commission then informed the complainant that, since the infringement case was ongoing, it could not grant public access to the supplementary letter of formal notice. It based its decision on the third indent of Article 4(2) of Regulation 1049/2001, which provides that "\[t\]*he institutions shall refuse access to a document where disclosure would undermine the protection of:* \[...\]*- the purpose of inspections, investigations and audits*".

**25.** The Commission explained that, in order to fulfil its task as the guardian of the Treaties, and to find a solution to breaches without having to bring judicial proceedings, it was necessary to maintain a climate of mutual trust between itself and Denmark throughout the various stages of the procedure, up to the point where the case had been finalised.

**26.** Had the document in question been disclosed at the time when the complainant asked for it and, therefore, at a point in the procedure when the case had not yet been finalised, this would have had a negative impact on the deliberations that took place between the Danish authorities and the Commission. This, in turn, would have reduced the chances of reaching an amicable solution, preferably without having to bring the matter before the Court of Justice. The document's disclosure would, therefore, have clearly undermined the purpose of the investigation of infringement procedure 2006/2134.

**27.** This interpretation has been confirmed by the Court of First Instance \[now the General Court\], in the *Petrie* case[\[5\]](#_ftn5 ""){#_ftnref5}:

"*As the Court pointed out in paragraph 63 of its judgment in WWF* ...*, the Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure. This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State in question regarding the latter's voluntary compliance with the Treaty requirements may continue during the court proceedings and up to the delivery of the judgment of the Court of Justice. The preservation of that objective, namely an amicable resolution of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgment, justifies refusal of access to the letters of formal notice and reasoned opinions drawn up in connection with the Article 226 EC proceedings on the ground of protection of the public interest relating to inspections, investigations and court proceedings, which comes within the first category of exceptions in Decision 94/90.*"

**28.** The Commission further pointed out that, when the Court of Justice interpreted the above-mentioned provision of Regulation 1049/2001 in a more recent judgment[\[6\]](#_ftn6 ""){#_ftnref6}, it emphasised the bilateral nature of the administrative procedure between the Commission and a Member State. The Court of Justice held that "*the interested parties, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission's administrative file. Account must be taken of that fact for the purposes of interpreting the exception laid down by Article 4(2), third indent, of Regulation No 1049/2001. If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission's administrative file, the system for the review of State aid would be called into question.*"

**29.** According to the Commission, infringement procedures based on Article 258 TFEU are, like the procedure for the review of state aid, a bilateral matter, in which the Commission's position is addressed exclusively to the Member State in question. The Court's interpretation cited above is therefore directly applicable to those infringement procedures.

**30.** The Commission then addressed the issue of partial access, noting that such access could not be granted. This was because the document in question was fully covered by the exception the Commission had invoked.

**31.** The Commission next addressed the issue of "*overriding public interest* ", noting that, according to Regulation 1049/2001, the exception that it invoked is not applicable if there is a so-called "*overriding public interest* " in disclosure. The Commission pointed out that such an interest must, first, be "*public*", and, second, outweigh the harm that disclosure will cause.

**32.** The Commission noted that, in accordance with Article 6 of Regulation 1367/2006 "\[a\]*s regards Article 4(2), first and third indents, of Regulation (EC) No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Community law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation (EC) No 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.*"

**33.** The Commission pointed out that the document requested by the complainant did not contain any information about emissions. Moreover, it noted that, even if the document did contain such information, the overriding public interest in disclosure referred to in the article cited above would not apply because the document forms part of an investigation concerning possible infringements of EU law.

**34.** The Commission finally explained to the complainant that the fact that its investigation was based on an infringement complaint he had submitted did not, in legal terms, grant him the status of a 'party' to the proceedings. The complainant did not, therefore, enjoy any more extensive rights of access to the investigation documents than other citizens did.

**35.** In his e-mail forwarding the Commission's decision summarised in the preceding paragraphs, the complainant emphasised that the Commission failed to take into account the more open practice referred to above.

**36.** In its subsequent opinion on the complaint to the Ombudsman, the Commission informed the complainant and the Ombudsman that, "\[s\]*ince the infringement proceedings have been closed in the meantime, the Commission has reconsidered this decision and is now disclosing the requested document.*"

### A. Allegation of failure to reply to the complainant's confirmatory application of 3 May 2009

#### Arguments presented to the Ombudsman

**37.** In its opinion, the Commission stated that it had no explanation for the fact that the complainant's application did not reach the electronic mailbox dedicated to applications for access to documents. The Secretariat-General of the Commission was unaware of his application. The complainant did not call the Commission's attention to the fact that he did not receive any feedback with regard to his application and waited quite some time before making a complaint to the Ombudsman. The Commission expressed its concern at this exceptional and unexplained event. In these particular circumstances, the Commission considered that this should not be treated as maladministration. The application was immediately registered and examined as soon as the Commission became aware of its existence.

**38.** In his observations on this part of the Commission's opinion, the complainant made the following comments.

**39.** He stated that, following his initial e-mail to the Commission's Secretary-General, he received two return e-mails. He understood these return e-mails as a clear indication that the Commission had, in fact, received his e-mail.

**40.** The complainant indicated that, in light of these return e-mails, and because he thought that the Secretary-General's case-handling could take a considerable time, he initially did not complain about the slow handling of his confirmatory application.

#### The Ombudsman's assessment

**41.** The Ombudsman noted that the Commission maintains a dedicated functional electronic mailbox designed to facilitate the efficient handling of applications for public access ([sg-acc-doc@ec.europa.eu](mailto:sg-acc-doc@ec.europa.eu)). It appeared that, in this case, the complainant sent his confirmatory application dated 3 May 2009 to that mailbox. In its opinion on the present complaint, the Commission expressed its puzzlement at the fact that the confirmatory application remained unidentified. It took the view that, since no-one knew about the confirmatory application, the fact that it was not handled should not be considered to constitute an instance of maladministration.

**42.** The Ombudsman shared the Commission's bewilderment. In his observations, the complainant enclosed copies of two return e-mails from the Commission, both apparently sent in reply to his confirmatory application. Whereas the first return e-mail stated that the complainant's e-mail had been "*deleted without being read* ", the second one indicated that the e-mail "*was read on Mon, 4 May 2009*...". In these circumstances, the complainant could reasonably presume that the Commission was handling his application.

**43.** The Ombudsman considered that the information relating to this part of the case need not give rise to a formal finding of maladministration. The Ombudsman underlined that his institution's relationship with the other institutions is governed by mutual trust and confidence. He therefore had no reason to believe that, when the Commission examined the present complaint and drafted its opinion, it was aware of the two return e-mails that the complainant enclosed in his above-mentioned correspondence.

**44.** Moreover, the Ombudsman noted that the failure to handle the complainant's confirmatory application was a secondary issue in the present case, which mainly concerned the issue examined in relation to the second allegation.

**45.** The Ombudsman nevertheless invited the Commission to provide information on the outcome of its investigation into the issue of what became of the above-mentioned correspondence[\[7\]](#_ftn7 ""){#_ftnref7}.

### B. Allegation of failure to inform the complainant whether the Danish authorities had requested the Commission to refuse public access

#### Arguments presented to the Ombudsman

**46.** The complainant alleged that the Commission failed to inform him whether the Danish authorities had requested it to refuse public access to the opening letters and their annexes.

**47.** In its opinion, the Commission stated that, as the documents are Commission documents, the Danish authorities were not consulted on their disclosure. It referred to Article 4(5) of Regulation 1049/2001, pursuant to which Member States can only request the Commission not to disclose documents originating from them.

**48.** In his observations, the complainant did not comment further on this aspect of the case.

#### The Ombudsman's assessment

**49.** It appeared from the Commission's opinion that the reply to the complainant's query was negative. The Ombudsman moreover confirmed that the Commission accurately stated the law in its reasoning.

**50.** In light of the foregoing, and the lack of any comments on this issue in the complainant's observations, the Ombudsman concluded that there were no grounds for further inquiries into this aspect of the case.

### C. Allegation of failure to explain why, following a new practice in 2006, the Commission again introduced a restrictive practice with regard to public access to opening letters addressed to Member States in infringement cases and related claims

#### The short-lived new practice

**51.** This issue required an assessment that was frank and free of semantic considerations. To attempt a definition of the term 'practice' was neither useful nor necessary. On the basis of the available evidence, referred to in paragraph 3 above, it was clear that the Commission's DG Environment at one point in time stopped systematically following the Commission's usual approach of not granting public access to opening letters in infringement procedures relating to its own specific field of work. It was not clear why this happened and the possible explanations are at any rate not necessary for the present part of the assessment. Subsequently, the persons in charge within the Commission brought DG Environment's approach into line with the above-mentioned usual approach. This was essentially what the Commission stated in its opinion when it declared that "\[o\]*n further consideration following internal debate, in 2009, DG Environment re-aligned its approach with the general approach of the Commission, which is based on a presumption of non-disclosure, as confirmed by the case-law.*"

**52.** The Ombudsman fully understood the complainant's disappointment at the fact that the Commission did not more openly and expressly engage with his understanding that the above-mentioned steps taken by DG Environment constituted a new disclosure practice, authorised and formally established by the Commission as an institution. It was true that the Commission hesitated, first in its correspondence with the complainant and, subsequently, before the Ombudsman, openly to acknowledge the fact that DG Environment tried out a new approach that was intended to constitute a rule. The Commission could have shown greater openness and frankness towards the complainant from the beginning, and could have avoided certain not very empathetic remarks in its opinion that seemed to suggest that the complainant had simply misunderstood what had happened.

**53.** At the same time, the Ombudsman also noted that the above-mentioned development brought to light important diverging views within the Commission as to what is the most effective approach to openness in infringement cases. It goes without saying that such divergences are potentially embarrassing to any organisation, and that an initial defensive approach, intended to avoid openness on that issue, is not unnatural. The common understanding of openness in the EU public administration requires, however, that the citizen be told the truth from the outset. This did not happen in the present case.

**54.** Moreover, in light of the delay that occurred in the submission of that opinion, the Ombudsman ventured to conclude that the issue was the subject of some discussion, possibly even debate, within the Commission. Again, that was a sign of a normally functioning administration. The fact that the Commission's opinion could have been more frank in its account of the facts and its related conclusions did not detract from the fact that the Commission in the end conveyed information, quoted above, which enabled the Ombudsman to reach his related factual finding.

**55.** In light of the above, the Ombudsman concluded that it was regrettable that the Commission did not more openly engage with the complainant about the actual and well-documented facts relating to the new approach that its DG Environment experimented with. The Ombudsman did not, however, consider it necessary to issue a formal, public critical remark in this respect.

##### The explanations given for revoking the short-lived new practice

**56.** This part specifically concerns the specific issue of a revocation of the practice that the complainant was led to believe existed.

**57.** The Ombudsman noted that the Commission made the following correct remarks, initially in its communications with the complainant and subsequently in its opinion.

**58.** First, the EU regulation 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[\[8\]](#_ftn8 ""){#_ftnref8}, excludes the application of the presumption of an overriding public interest in disclosure of documents as far as infringement procedures are concerned. The importance of this point was that, in certain circumstances, the Aarhus Convention provides for a presumption of an overriding public interest in the disclosure of information.

**59.** Second, the EU's rules on public access to documents, as confirmed by case-law, provide that the specific documents to which citizens request access must be subject to an individual and concrete assessment. The case-law only exceptionally allows the institutions to decide on public access to documents on the basis of categories of documents. It would therefore be very problematic to reach the conclusion that the Commission should instruct its DG Environment to make opening letters public as a rule.

**60.** In light of the above, the Ombudsman could not conclude that principles of good administration require the Commission to (re)introduce the approach that its DG Environment experimented with for a short period.

##### The systemic issues raised regarding non-disclosure of infringement documents

**61.** The systemic and well known issues raised in the present case led the Ombudsman to make the recommendations[\[9\]](#_ftn9 ""){#_ftnref9} here below. The Ombudsman's recommendations were in particular intended to offer the Commission the opportunity to consider pursuing a more nuanced approach to openness in the field of infringement proceedings.

1. The Commission should, when it receives applications for public access to documents relating to ongoing infringement cases, systematically consult the Member State concerned in order to obtain its view on whether it wishes to insist on its right to confidentiality referred to in the case-law on that issue. The written correspondence on the consultation should, as a rule, be public.

2. The Commission should, whenever a Member State consults it about possible public disclosure of documents relating to ongoing infringement investigations, and in case of a negative opinion, produce a reply that complies with the standards now required of Member States when they recommend the non-disclosure of a document by the Commission. Relatedly, the Ombudsman recommends that, as a rule, the Commission's reply be classified as public.

3. The Commission should, in the present case and, generally, when handling applications for access, explain to applicants what it means by the expression "*undue external pressure* " used to invoke the protection of the purpose of investigations as a basis for non-disclosure of documents relating to ongoing infringement investigations. Specifically, the Commission should explain what kind of potential external actors it wishes to refer to, and what it means by "*undue* " and "*pressure*".

4. Moreover, the Commission should examine, when preparing its response to the present draft recommendations, whether it possesses concrete information on specific examples of intended or accidental disclosure of documents relating to ongoing infringement investigations which clearly resulted in harm to the purpose of the investigations in question, within the restrictive meaning of that term in Regulation 1049/2001. It should give such information in its response, and it should provide copies of any relevant documentation.

#### The arguments presented to the Ombudsman after his draft recommendation

The Commission's response to the draft recommendation was succinct and clear and is useful to quote in full:

"*2. GENERAL OBSERVATIONS*

*Before taking a position on each of the recommendations, the Commission would like to make some general observations.*

*Preliminary remark*

2.1.*The Commission did not change its practice with regard to granting access to documents related to ongoing infringement proceedings. As was explained in previous communications to the Ombudsman, the Directorate-General for the Environment (DG Environment) had given its agreement to disclosure by the Danish authorities of a letter of formal notice in an ongoing infringement case. By referring to "its practice" in its reply to the Danish authorities, the Directorate-General gave the impression that there had been a change of policy in the Commission regarding access to documents related to ongoing infringement proceedings. The Commission did not suggest that the complainant misunderstood the announcement made by DG Environment to the Danish authorities. In its communication to the Ombudsman, the Commission noted that DG Environment had wrongly created the impression that there was a "Commission practice" of disclosing documents in certain infringement cases. The Commission expressed regret that the impression of a change of practice was created and understands the disappointment of the complainant.*

2.2.*Observations*

2.3.*Regulation 1049/2001 provides for a consultation of third parties and in particular of Member States when access is requested to documents originating from them and when it is not clear to the Commission whether they should be disclosed or, on the contrary, withheld. In principle, the Commission does not consult third parties on disclosure of its own documents.*

2.4.*The opinion of Member States on disclosure of the letters of formal notice or reasoned opinions sent to them could not have the same status as their opinion on disclosure of their own documents. In the latter case, the specific procedure of Article 4(5) of the Regulation and the judgment of the Court of Justice in Sweden v Commission* [\[10\]](#_ftn10 ""){#_ftnref10}*apply. This means that the Member State has a "right of assent" and participates in the decision making. Such could not be the case with regard to Commission documents, where the Commission has to make its own assessment and cannot make disclosure dependent on the opinion of the Member State.*

2.5.*The confidentiality of exchanges between the Member States and the Commission in infringement proceedings is not an exclusive right of Member States which they can waive. It is intended to protect the process of investigating whether a Member State may be breaching EU law and, if that is the case, of finding an agreed solution avoiding to have to refer the matter to the Court of Justice. Therefore, this is a mutual interest of the Commission and of the Member State concerned.*

2.6.*When the Commission is consulted by Member States on the disclosure of documents related to ongoing infringement proceedings which it has sent to the Member State, it informs that Member State that, if it would have received the request for access, it would not grant access at this stage on the basis of the exception aimed at protecting the purpose of the investigation. It should be noted that the Commission cannot block disclosure of its documents by a Member State. The position of the Commission in such cases is not identical to the position of Member States when they object to disclosure of their documents by the Commission. In the latter case, they participate in the decision making, as the Court ruled in Sweden v Commission. Conversely, the Commission does not participate in the decision making by national authorities when they handle a request for access to a Commission document under their national access to documents or freedom of information laws.*

2.7.*Experience has shown that Member States attach great importance to the confidentiality of their exchanges with the Commission in infringement cases. Even countries with a tradition of transparency are not systematically in favour of disclosing such exchanges. On the other hand, the Commission would not refuse access to a document which has been lawfully disclosed by a Member State.*

2.8.*The Commission's policy is based on a presumption that disclosure during the proceedings would be harmful. This presumption has been recognised by the General Court in the Petrie* [\[11\]](#_ftn11 ""){#_ftnref11}*and LPN* [\[12\]](#_ftn12 ""){#_ftnref12}*judgments, as well as in the Germany v Commission* [\[13\]](#_ftn13 ""){#_ftnref13}*judgment. The Commission understands that members of the public have an interest in obtaining access to exchanges between the Commission and Member States in infringement proceedings.*

*However, the Commission must strike a balance between openness and efficiency of infringement proceedings, not in its own interest or in that of the Member States, but in the public interest. Indeed, the purpose of infringement proceedings is to ensure that Member States transpose and apply correctly EU law and that breaches of EU law are corrected as quickly as possible. Disclosing documents exchanged in the process of ongoing infringement proceedings would undoubtedly reduce the chances of reaching an agreed solution with the Member States concerned to solve the violation of EU law. It is a well known fact that a vast majority of issues related to the correct application of EU law are currently resolved before reaching the courts.*

2.9.*The Commission has struck the balance between openness and efficiency by disclosing documents in closed infringement cases, even against the will of Member States, as is demonstrated by the case Germany v Commission* [\[14\]](#_ftn14 ""){#_ftnref14}*. The Ombudsman also refers to that judgment, where the General Court stressed the requirement that the reasons given for non-disclosure "must be of a specific nature and the risk of a protected interest being adversely affected must be reasonably foreseeable and not merely hypothetical".*

*However, this case concerns access to documents related to closed infringement proceedings. The General Court ruled that "by contrast with an infringement procedure which is still under way, there is no general presumption that the disclosure of exchanges between the Commission and a Member State in the context of an infringement procedure which has been closed would adversely affect the purposes of the investigations". The Court has thus clearly established the presumption that disclosure of documents related to ongoing infringement procedures would undermine the protection of the purpose of the investigation* [\[15\]](#_ftn15 ""){#_ftnref15}.

3.*OPINION OF THE COMMISSION*\[on the specific recommendations in the above order\]

3.1.*The Commission cannot accept the draft recommendation to systematically consult the Member State concerned when it receives a request for access to documents related to ongoing infringement proceedings.*

3.2.*The Commission does not have the same status regarding the disclosure of its documents by Member States as Member States enjoy under Article 4(5) of Regulation 1049/2001 as interpreted by the Court of Justice. Therefore, it cannot comply with the same standards as those required from Member States when they object to disclosure of their documents under Article 4(5) of Regulation 1049/2001.*

3.3.*The term "undue pressure" means that, if exchanges between a Member State and the Commission related to an ongoing infringement case are disclosed under Regulation 1049/2001, they might be used by third parties to put pressure on the Commission and/or on the Member State and to influence the positions of one or the other. This would, therefore, interfere with the bilateral discussions and disturb the serenity of the ongoing dialogue between the Commission the Member State. Such interference could result in slowing down the process of making Member State legislation and/or practice compliant with EU law and would thus be counterproductive.*

3.4.*Since such documents have hardly ever been disclosed, there is no documentation evidencing actual harm to ongoing infringement proceedings.*"

The complainant essentially maintained his case following the Commission's above-quoted response.

#### The Ombudsman's assessment after his draft recommendation

**62.** The Ombudsman would first like to put on record his appreciation for the clarity and directness of the Commission's response to his draft recommendation. He also recalls his above-mentioned point that the draft recommendations made in this case were intended to provide an opportunity to the Commission to further develop aspects of its confidentiality practices related to its handling of infringement issues involving Member States. The Ombudsman regrets that the Commission chose not to seize this opportunity for the said purpose.

**63.** The Commission is convinced that public disclosure of documents exchanged with the member states during infringement procedures will necessarily harm the purpose of that procedure, which is to ensure the correct application of EU law. The Ombudsman considers, however, that this position is not immediately evident or self explanatory. Indeed, it is not reasonably foreseeable that a confidential exchange of arguments between the Commission and the Member State will always promote a solution to an infringement more than would a transparent discussion of the various legal viewpoints and interests at stake. On the contrary, one can imagine infringement procedures where public disclosure of the different opinions and arguments exchanged, exactly because of the robust involvement of public opinion and civil society, both national and European, could actually favour or facilitate an end to the infringement. One can even reasonably suppose that public disclosure of documents in infringement procedures where environmental issues are at stake would likely be one of those situations. It is indeed plausible that, with an eye to bringing the member state legislation in line with EU law, involvement of civil society and public opinion would be highly favourable. The general and blanket assertion that public disclosure of documents exchanged in infringement procedures will always harm the purpose of that procedure (which is the protected interest in Art 4(2) third indent) appears to be too general in nature and can therefore be understood as merely hypothetical.

**64.** The Ombudsman acknowledges, however, that it is possible to interpret the Commission's current practices as being supported by the Court's relevant case law, in particular as recently interpreted by the General Court in its judgment of 13 September 2013 in the case T-111/11 ClientEarth v Commission (not yet published). The practices therefore do not, in the Ombudsman's view, constitute instances of maladministration as such.

**65.** Bearing in mind, however, that a court reviews cases within a more stringent set of procedures and rules of review, the Ombudsman, in the present case, identified systemic opportunities that could render the Commission's current practices more open. However, the Commission's decision not to embrace these opportunities does not, in the Ombudsman's view, constitute an instance of maladministration. This is because the Court's relevant case law appears to be adequately supportive of the Commission's practices in question.

**66.** The Ombudsman also encouraged the Commission to carry out research in order to identify any empirical evidence that might help to clarify whether it remains reasonable to presume that serious harm would be caused to its "investigations" by disclosing the documents here in question. The Ombudsman found it appropriate to do so in light of the fact that the area here concerned is one of the main areas of the Commission's work, going back to the 1950s. The Ombudsman thought that several decades of experience could provide at least some empirical insight into the concerns that underlie the Commission's confidentiality practices here in question. In its response, however, the Commission concluded that, in relation to disclosure of documents related to ongoing infringement proceedings, "...*there is no documentation evidencing actual harm to ongoing infringement proceedings.*"

**67.** The Ombudsman recalls that, in his recommendation, he referred to "*intended **or accidental** disclosure*" (emphasis added). The Commission's response can therefore only be read to mean that, not only has the Commission never officially decided to disclose the kind of documents here in question, but no unintended disclosure - leaks or otherwise - has ever, to the Commission's knowledge, taken place either. The Commission's response can therefore rightly be understood to mean that the Commission is not aware of any disclosure of any such documents ever having taken place. The harm referred to can therefore be understood, on the basis of the Commission's response, to be purely hypothetical.

**68.** The Ombudsman considers it obvious that further attempts to convince the Commission of the possibilities and benefits of introducing greater openness into the procedures here concerned would not bear fruit at present. He therefore closes the case with the conclusion that further inquiries would not be useful and, hence, are not justified.

### D. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

**No further inquiries would be justified in this case.**

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

P. Nikiforos Diamandouros

Done in Strasbourg on 26 September 2013

*** ** * ** ***

[\[1\]](#_ftnref1 ""){#_ftn1} [http://www.ombudsman.europa.eu/en/cases/decision.faces/en/4390/html.bookmark](/en/cases/decision.faces/en/4390/html.bookmark)

[\[2\]](#_ftnref2 ""){#_ftn2} Case T-191/99 *Petrie and others v Commission* \[2001\] ECR II-3677.

[\[3\]](#_ftnref3 ""){#_ftn3} 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, OJ 2006 L 264, p. 13.

[\[4\]](#_ftnref4 ""){#_ftn4} 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 2001 L 145, p. 43.

[\[5\]](#_ftnref5 ""){#_ftn5} *Petrie v Commission*, referred to in footnote 4 above, paragraph 68.

[\[6\]](#_ftnref6 ""){#_ftn6} Case C-139/07 P *Commission v Technische Glaswerke Ilmenau* \[2010\] ECR I-5885, paragraph 58.

[\[7\]](#_ftnref7 ""){#_ftn7} The Commission eventually did not appear to have retrieved any such information.

[\[8\]](#_ftnref8 ""){#_ftn8} Regulation No 1367/2006, referred to in footnote 3 above.

[\[9\]](#_ftnref9 ""){#_ftn9} The draft recommendation was published in full on the cases section of the Ombudsman's website: [http://www.ombudsman.europa.eu/cases/draftrecommendation.faces/en/11766/html.bookmark](/cases/draftrecommendation.faces/en/11766/html.bookmark)

[\[10\]](#_ftnref10 ""){#_ftn10} Case C-64/05 P, Sweden v Commission, \[2007\] ECR I-11389.

[\[11\]](#_ftnref11 ""){#_ftn11} Case T-191/99, judgment of 11 December 2001, \[2001\] ECR II-3677.

[\[12\]](#_ftnref12 ""){#_ftn12} Case T-29/08, LPN v Commission, judgment of 9 September 2011, \[2011\] II-6021.

[\[13\]](#_ftnref13 ""){#_ftn13} Case T-59/09, judgment of 14 February 2012, Germany v Commission, not yet reported, paragraph 74.

[\[14\]](#_ftnref14 ""){#_ftn14} Cited above.

[\[15\]](#_ftnref15 ""){#_ftn15} Paragraph 78 of the judgment Germany v Commission.