The background to the complaint

1. This complaint concerns the European Commission's handling of a request for access to documents made under Regulation 1049/2001[1].

2. On 11 May 2012, the complainant, an Irish citizen, requested access to documents sent by the Irish authorities to the Commission in the context of an investigation into the compatibility with EU rules on state aids of a particular scheme of the Irish National Asset Management Agency ('NAMA'), known as the 'Deferred Payment Initiative' (hereinafter, 'the scheme'). This scheme protects home buyers against a 20% decline in property values over a five-year period. The complainant's request concerned the following documents:

1) The Commission decision approving the scheme;

2) Documentation and responses to queries provided by NAMA to the Commission in relation to the scheme;

3) Documentation and responses to queries provided by the Irish Competition Authority ('ICA') to the Commission in relation to the scheme;

4) Documentation and responses to queries provided by the Government of Ireland and its agencies to the Commission in relation to the scheme;

5) Copies of representations made by any party, including financial institutions, to the Commission in relation to the scheme.

3. On 27 June 2012, the Commission informed the complainant that the document identified as number 1) does not exist. As regards the documents identified as numbers 2) to 5), the Commission refused access to them on the following grounds. First, the Commission submitted that it had consulted the Irish authorities which objected to disclosure. Second, the Commission invoked some of the exceptions to disclosure provided in Regulation 1049/2001, namely, (i) the protection of the financial, monetary or economic policy of a Member State, (ii) the protection of the commercial interests of a natural or legal person, and (iii) the protection of the purpose of the State aid investigation. The Commission added that the complainant did not establish the existence of an overriding public interest in disclosing the documents. It concluded that granting partial access was not possible because the documents were covered in their entirety by the aforementioned exceptions.

4. On 27 June 2012, the complainant made a confirmatory application for access.

5. In its reply of 20 July 2012 to the complainant's confirmatory application, the Commission confirmed that it had not approved the scheme and that, for that reason, the document identified as number 1) does not exist. The Commission stated that it does not possess the documents identified as numbers 2) and 3), while the documents under number 5) above were already in the public domain. As for the documents identified as number 4), that is, the documentation and responses to queries provided by the Government of Ireland and its agencies to the Commission in relation to the scheme, the Commission explained that it was in the process of analysing these documents and that this could require it to consult the Irish authorities again. Consequently, the Commission stated that, in accordance with Article 8(2) of Regulation 1049/2001, it had to extend the time limit for replying to the complainant's confirmatory application by 15 working days.

6. On 9 August 2012, the Commission informed the complainant that, regrettably, it was unable to reply within the extended time limit. The Commission also noted that it had decided to consult the Irish authorities before taking a definitive decision on the disclosure of the requested documents.

7. The complainant sent a reminder to the Commission on 23 November 2012 and received a further holding reply on 21 December 2012. The complainant sent another reminder on 10 January 2013 but received no reply.

8. On 17 January 2013, the complainant lodged the present complaint with the European Ombudsman.

The inquiry

9. The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

1) The Commission wrongly failed to (i) process the complainant's confirmatory application for access within the time limit provided in Regulation 1049/2001, and (ii) grant the complainant access to documentation and responses to queries provided by the Government of Ireland and its agencies to the Commission in relation to the scheme.

2) The Commission should release the requested documents.

10. As a first measure of inquiry, the Ombudsman's services carried out an inspection of the Commission's file concerning the present case.

11. Following the inspection of documents, the Commission replied to the complainant's confirmatory application (hereinafter, the 'decision of 2 May 2013'). In its decision, which was sent to the Ombudsman's office and, in turn, was forwarded to the complainant, the Commission identified 14 documents as covered by the complainant's request. The Commission argued that two documents were e-mails without substantive content, two documents were attachments to e-mails that were available on the internet and, moreover, fell outside the scope of the request. The Commission granted partial access to five e-mails concerning exchanges between the Irish authorities and the Commission and to one document which contained the answers to the Commission's questions (a Question and Answer sheet). The Commission refused access to the remaining four documents which concerned A) the scheme itself, B) the framework agreement on the scheme, C) the cash flow analysis and D) a report on the potential impact of the scheme on the Irish housing market.

12. Next, the Ombudsman received the Commission's opinion on the complaint which was forwarded to the complainant for observations. However, the complainant did not submit any observations.

13. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Allegation that the Commission failed (i) to process the complainant's confirmatory application within the time limit and (ii) to grant the complainant access to the requested documents, and related claim

Arguments presented to the Ombudsman

First aspect of the allegation

14. The Commission acknowledged that it had not adopted a decision on the complainant's confirmatory application within the time limit prescribed by Regulation 1049/2001 and apologised for the delay. However, the Commission argued that the initial extensions of the time limits for responding were justified on the grounds of the complexity of the complainant's requests and the need to carry out consultations with the Irish authorities as well as internal consultations within the Commission's services.

Second aspect of the allegation and related claim

15. The Commission argued that, in its decision of 2 May 2013, it had already given detailed explanations for its position regarding the substance of the request. It added that, considering that the requested documents belong to the administrative file of a State aid investigation, it was unable to release all documents but that it granted the widest possible access. However, neither full nor partial access to certain other documents could be granted on the ground that the Irish authorities objected to their disclosure in accordance with the exceptions laid down in Regulation 1049/2001.

16. Specifically, with regard to all the documents and parts of documents to which it refused access, the Commission based its refusal on the exception concerning (a) the protection of the financial, monetary or economic policy of a Member State[2]. In this regard, the Commission observed that the Irish authorities put forward that "the introduction and operation of the asset relief scheme for banks in Ireland was apt to remedy a serious disturbance in the Irish economy, ... therefore the activities of NAMA are central to the financial and economic policy of the Irish State". Moreover, the requested documents related to the "internal development of policy within NAMA and as such to the development of aspects of the financial and economic policy of the Irish State" and were intended to improve the liquidity of the housing market in Ireland. Consequently, in the Commission's view, disclosure of the documents to which access was refused could have a prejudicial effect on Ireland's room for manoeuvre in developing its economic policy.

17. Moreover, the Commission invoked the exception concerning (b) the protection of commercial interests[3] in order to justify its refusal to grant access to certain parts of the documents in question. Specifically, the Commission reasoned that, as stated by the Irish authorities, the requested documents include confidential information, relating but not limited to: "(i) a draft version of confidential and commercially sensitive agreements between NAMA and the banks participating in the [scheme], (ii) confidential and commercially sensitive data regarding NAMA´s internal estimation of the likely financial and cash flow impact of the [scheme] for NAMA, (iii) [a] confidential economic study commissioned by NAMA and (iv) confidential details of the State aid analysis carried out by NAMA". The Commission added that it was unable to be more specific with regard to the content of the individual documents concerned, since this would deprive the exception of its purpose. As regards the existence of an overriding public interest in disclosure, the Commission concluded that the arguments put forward by the complainant did not show the existence of a public interest that would outweigh the interest of protecting the commercial interests of NAMA.

18. In addition, the Commission endorsed (c) the Irish authorities' argument that NAMA could not be required to disclose the documents in question under national law.

19. Finally, the Commission argued that the Irish authorities also invoked (d) the exception concerning the protection of the purpose of investigations. However, because this exception would require further clarifications and because, in any event, the documents were covered by exceptions (a) and (b) and argument (c) above, the Commission saw no need to base its decision on this exception.

The Ombudsman's assessment

First aspect of the allegation

20. The Ombudsman notes that the complainant made the confirmatory application on 27 June 2012 and that the Commission responded to it on 2 May 2013, that is, almost a year later. It is thus manifest that the Commission failed to comply with the time limits provided in Regulation 1049/2001[4].

21. While the Commission referred to the complexity of the request, the need to consult and re-consult the Irish authorities, and the extensive internal consultation within its services, none of these arguments convincingly accounts for the delay in processing the complainant's confirmatory application. As regards, in particular, the need to consult the Irish authorities, the Ombudsman points out that, according to the case-law of the Court of Justice[5], the fact that an institution has initiated a dialogue with the Member State from which the requested document originates does not entitle it to exceed the time limits established by Regulation 1049/2001. Likewise, the complexity of an access request as such is not sufficient to justify exceeding the relevant deadline. After all, Article 8(3) of Regulation 1049/2001 entitles institutions to extend the deadline for processing confirmatory applications in "exceptional cases" and, in any event, by 15 working days only. Finally, based on the inspection of the file, the Ombudsman sees no reason to doubt that extensive consultations within the Commission have taken place. Nevertheless, Regulation 1049/2001 does not consider such consultations to constitute a justification for exceeding the deadline for processing a confirmatory application.

22. Notwithstanding the above findings, the Ombudsman considers it important to note that, both in its letter of 9 August 2012 and in its opinion, the Commission apologised for the delay and, importantly, has now decided on the complainant's confirmatory application. The Ombudsman points out, moreover, that she has recently opened an own-initiative inquiry aimed at ascertaining how the Commission, the Council and the European Parliament comply with the deadlines set out in Regulation 1049/2001[6]. In these circumstances, the Ombudsman finds that no further inquiries are justified in respect of the first aspect of the complainant's allegation.

Second aspect of the allegation and related claim

23. As a preliminary point, it should be noted that the object of the inquiry at the time it was opened was the Commission's failure to reply to the request for access within the statutory time limit, which amounted to an implied refusal to grant access[7]. During the Ombudsman's inquiry, the Commission's implied refusal was replaced by the decision of 2 May 2013, which was forwarded to the complainant. In line with the Court of Justice's approach in such situations[8], it is in the interest of sound administration and consistent with the requirements of procedural economy to examine the second aspect of the complainant's allegation and the related claim in light of the Commission's decision of 2 May 2013.

24. In this regard, in relation to the exception concerning (a) the protection of the financial, monetary or economic policy of a Member State, Article 4(1)(a) of Regulation 1049/2001 has been interpreted by the Court of Justice to mean that if an institution decides to refuse access to a document, it must explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception[9]. Although the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical, the Commission must be recognised as enjoying wide discretion for the purpose of determining whether the disclosure of documents could undermine the public interest[10].

25. In the present case, the Commission explained that the documents to which access was refused relate to the internal development of the scheme within NAMA which was intended to improve the liquidity of the housing market in Ireland. Furthermore, it is common ground that, as the Commission explained in its opinion, the scheme provided necessary relief to the banking sector in view of the serious disturbance experienced by the Irish economy. The Ombudsman has carefully examined the documents concerned. She considers that the Commission's argument that that their disclosure would specifically undermine Ireland's room for manoeuvre in developing its economic policy is convincing. The Ombudsman, therefore, finds that the Commission did not err in refusing access on the ground of the protection of the financial, monetary or economic policy of a Member State. The complainant did not submit any observations that could have called the Commission's position into question.

26. In analysing the Commission's arguments in relation to the exception concerning (b) the protection of commercial interests, the Ombudsman points out that, in accordance with well-established case-law, in order to justify a refusal to grant access to a document, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) of Regulation 1049/2001. The institution concerned must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by the exception laid down in that Article[11].

27. In the present case, the Ombudsman notes that the documents to which access was refused contained draft agreements between NAMA and the participating banks, NAMA's internal estimation of the likely financial and cash flow impact of the scheme, economic studies commissioned by NAMA, and details of the State aid analysis. A close examination of the documents leads the Ombudsman to the conclusion that they included confidential and commercially sensitive information and that the Commission was justified in arguing that their disclosure would specifically and effectively undermine the protection of the commercial interests of NAMA and of the economic entities referred to in the documents. It should again be stated that the complainant did not submit any observations to contest the Commission's position.

28. Concerning the possibility of partial access to the documents concerned, the Ombudsman notes that the Commission did not explicitly address the issue in its decision of 2 May 2013. However, the Commission pointed out that, unlike the exception concerning the protection of the financial, monetary or economic policy of a Member State which applied to the entirety of the requested documents, the exception concerning the protection of commercial interests applied only to certain parts of certain documents. It added that it was unable to be more specific with regard to the content of the individual documents concerned, since this would deprive the exception of its purpose. Having carefully examined the documents concerned and taking into account that the complainant did not submit any observations that would call the Commission's approach into question, the Ombudsman considers that no further inquiries are justified into this issue.

29. Finally, it should be recalled that the Commission endorsed the Irish authorities' argument that (c), under Irish law, NAMA would not be required to disclose the requested documents. Taking into account that the issue of access to the documents falling within the scope the complainant's request has been analysed under the exceptions laid down in Article 4 of Regulation 1049/2001, the Ombudsman finds that it is unnecessary to elaborate on this aspect further.

30. In view of the above considerations, the Ombudsman concludes that the Commission has provided an accurate account of the facts, has given a sufficient statement of reasons, and has committed no manifest error in refusing to provide access to certain documents included in the complainant's request on the basis of the above-mentioned exceptions. Consequently, the Ombudsman finds that there has been no maladministration by the Commission in relation to the second aspect of the complainant's allegation. Therefore, the related claim cannot be sustained.

Conclusions

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

No further inquiries are justified in respect of the first aspect of the complainant's allegation.

There was no maladministration by the Commission in relation to the second aspect of the complainant's allegation.

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

 

Emily O'Reilly

Done in Strasbourg on 11 June 2014

 

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[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 2001 L 145, p. 43.

[2] See the fourth indent of Article 4(1)(a) of Regulation 1049/2011, according to which, "[t]he institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards ... the financial, monetary or economic policy of the Community or a Member State".

[3] See the first indent of Article 4(2) of Regulation 1049/2011 which stipulates that "[t]he institutions shall refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property ... unless there is an overriding public interest in disclosure."

[4] Articles 7 and 8 of Regulation 1049/2001.

[5] Case C-64/05 P Sweden v Commission [2007] ECR I-11389, paragraphs 85-89.

[6] OI/6/2013/KM.

[7] According to Article 8(3) of Regulation 1049/2001: "[f]ailure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty."

[8] Case T-111/11 ClientEarth v Commission, judgment of 13 September 2013, not yet published in the ECR, paragraph 36; Case T-111/00 British American Tobacco International (Investments) v Commission [2001] ECR II-2997, paragraph 22.

[9] See, Case T-590/10 Thesing and Bloomberg Finance v ECB, judgment of 29 November 2012, not yet published in the ECR, paragraph 42.

[10] Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraphs 34-36; Case T-362/08 IFAW Internationaler Tierschutz-Fonds v Commission [2011] ECR II-11, paragraph 104.

[11] Recently, Case C-365/12 P Commission v EnBW Energie Baden-Württemberg AG, judgment of 27 February 2014, not yet published in the ECR, paragraph 64 and the case-law cited there.