Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The background to the complaint

1. The case concerns the Commission's general tendency to hesitate to grant public access to documents that concern ongoing investigations about possible infringements of EU law by Member States. EU citizens living in Denmark were under 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 tendency, 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. By letter of 2 April 2007, DG Environment granted the complainants access to the letter of formal notice and to Denmark's reply in infringement case 2003/2070 concerning the conformity of Danish legislation with Council Directive 92/43/EEC (the 'Habitats Directive'). DG Environment indicated that it provided these documents "in accordance with our practice". It further added that the documents in question had also been published by the Danish authorities and provided a link to the relevant website. It finally stated that, "[i]n case the documents have in the meantime been removed from that site you are welcome to contact us again and we will be happy to provide the documents as requested".

4. The complainants obtained a copy of a letter from DG Environment to the Danish Ministry for the Environment which referred to the change in disclosure practice 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 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."

5. DG Environment also granted access to the letter of formal notice in infringement case 2006/2134 concerning the conformity of Danish legislation with Council Directive 79/409/EEC (the 'Birds Directive', now consolidated Directive 2009/147/EC) in relation to Special Protection Area No 60 (Tondermarsken). That letter was also published on the website of the Danish Ministry for the Environment.

6. However, in a letter of 20 July 2009, DG Environment refused the complainants' request for access to a supplementary letter of formal notice in case 2006/2134. In so doing, DG Environment referred to the third indent of Article 4(2) of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents[2] 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". DG Environment further referred to the Petrie judgment delivered by the (then) Court of First Instance, in which the Court held that "the Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure"[3].

7. By letter of 21 July 2009, the complainants asked the Commission whether its refusal to disclose the supplementary letter of formal notice in case 2006/2134 resulted from the Danish government's desire for confidentiality in that case.

8. In an additional letter of 25 September 2009, DG Environment informed the complainants that access to the letter of formal notice in case 2006/2134 (not the supplementary letter referred to above) had been granted "because the Danish authorities published the letter on the website of the Danish Ministry of the Environment. There was therefore no reason for us to withhold the document since Denmark was considered to have refrained from its right to a confidential treatment of the document." With reference to case 2003/2070, DG Environment noted that "our practice has since changed" and that requests for access to documents concerning ongoing investigations would be refused unless there is an overriding public interest in disclosure.

The subject matter of the inquiry

9. The Ombudsman opened an inquiry into the following allegation and claims.

Allegation

The Commission failed to explain to the complainants 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.

Claims

1. The complainants claim the Commission should adequately respond to the request referred to in the first allegation.

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.

10. The Ombudsman also asked the Commission to reply to the following questions.

11. In its first letter to the complainant regarding this issue, dated 20 July 2009, the Commission (a) informed the complainants of the Petrie judgment in case T-191/99, which recognised a Member State's interest in maintaining a closed dialogue with the Commission in infringement cases, and (b) pointed out the importance of such a dialogue for the purpose of finding amicable solutions between the Commission and the Member State in the pre-litigation procedure. It was not perfectly clear from the content of the said letter whether the Commission understands the interest in achieving an amicable solution to constitute a separate, autonomous reason for non-disclosure, or whether this consideration is, in the Commission's view, intrinsically linked to the Member State's possible interest in maintaining a closed dialogue. In particular, it was not clear whether the Commission considers that the Petrie judgment applies, and, if so, to what extent, in cases where a Member State openly and clearly states that it has no interest in keeping the documents in question confidential. The Ombudsman therefore asked the Commission to clarify this matter in its opinion.

12. He also asked the Commission to provide, as part of its response to the allegation and the related claim, concrete examples of cases or incidents that led it to revert to its pre-2006 practice.

The inquiry

13. On 29 November 2010, the Ombudsman asked the Commission to submit an opinion on the complaint by 28 February 2011. On 28 February 2011, the Commission informed the Ombudsman that it could not submit an opinion within the deadline. It confirmed that a draft reply was "in interservice consultation, but more time would be needed to complete the required procedure". On 29 March 2011, the Commission again extended the date for submission of its opinion, noting that a draft reply was "in interservice consultation", but that "unexpected difficulties ha[d] appeared in the treatment of the substance of the complaint".

14. On 18 May 2011, the Commission submitted its opinion. The Ombudsman forwarded it to the complainants for their observations, which they submitted on 26 July 2011.

The Ombudsman's analysis and conclusions

A. 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 to Member States in infringement cases and related claims

Arguments presented to the Ombudsman

15. The complainants considered that the Commission failed to explain why it reintroduced what in their view was a restrictive disclosure practice for letters of formal notice relating to infringement investigations in the environmental field. They argued that the Commission failed to provide adequate explanations.

16. The complainants also pointed out that the case demonstrated a serious systemic problem in the handling of applications for public access to documents relating to infringement investigations. They maintained that the Commission normally argues that disclosure cannot be granted due to the interest of the Member State concerned, but that the Member State, if itself asked to grant access, normally asks the Commission for its view. The latter, in turn, usually informs the Member State that such documents are confidential for as long as the investigation is ongoing.

17. In its opinion, the Commission gave the following account of its understanding of the facts and the relevant rules.

18. As regards the first claim and the Ombudsman's first question, the Commission acknowledged that, in infringement investigation cases 2003/2070 and 2006/2134, DG Environment disclosed the respective letters of formal notice, since it considered that disclosure might, in these particular cases which concerned the incomplete transposition into national legislation of the Habitats and the Birds Directives, facilitate the direct application of the said Directives. In those cases, these documents had also been published by the Member State concerned. In both decisions, DG Environment considered at the time that, exceptionally, documents concerning infringement cases relating to the incomplete transposition of directives into national legislation could be subject to disclosure under the given circumstances. Furthermore, the Commission acknowledged that, in its letter of 2 April 2007 to the complainant, DG Environment used the phrase "in accordance with our practice". It added, however, that this position cannot be considered to constitute "a practice of the Commission". When the Commission issued a supplementary letter of formal notice in case 2006/2134, the Danish authorities asked for the Commission's opinion on a request for access to that supplementary letter of formal notice. On that occasion, DG Environment issued a negative opinion on the disclosure of that document, thus demonstrating that it made a different assessment in each case.

19. The Commission then recalled the specific nature of the competences which the Treaty and the case-law of the Court of Justice confer upon it in the field of infringements and the discretionary powers it enjoys in the framework of this procedure. It went on to argue out that, considering the fact that the aim of this procedure is to establish sincere co-operation and a climate of mutual trust between the Commission and the Member State concerned, only a case-by-case assessment can determine whether it should strictly adhere to certain basic principles, namely, not to deprive the infringement proceedings of their effectiveness, to comply with the obligations under Article 339 TFEU and to apply the exceptions laid down in Regulation 1049/2001.

20. The Commission noted that third parties, including those whose infringement complaint has given rise to a formal investigation, do not enjoy access rights to its administrative files concerning infringement proceedings. Indeed, pursuant to Article 258 TFEU and case-law interpreting it, only the Member State concerned is a party to these proceedings. Consequently, the ruling of the Court of Justice in its judgment of 29 June 2010 in Case C-139/07 P, Commission v Technischen Glaswerke Ilmenau[4], acknowledging the existence of a general presumption of inaccessibility under the third indent of Article 4(2) of Regulation 1049/2001, directly applies to these proceedings.

21. The Commission acknowledges that, occasionally and on a case-by-case basis, certain documents relating to infringement proceedings have been disclosed whilst the infringement proceedings were still ongoing.

22. The Commission regrets that, by an unfortunate choice of words in its correspondence with the complainant, DG Environment wrongly created the impression that there was a "Commission practice" of disclosing documents in certain infringement cases in the field of environmental law. DG Environment did not establish any general policy or practice of disclosing documents in open infringement proceedings between 2006 and 2009. Rather, DG Environment disclosed documents concerning open infringement cases relating to the incomplete transposition of EU environmental legislation on a case-by-case basis, starting from the presumption of non-disclosure, as confirmed by case-law. In 2009, upon further consideration following internal debate, DG Environment realigned its approach with the general approach of the Commission, which is based on a presumption of non-disclosure, as confirmed by case-law.

23. In the case at hand, the exception under the third indent of Article 4(2) of Regulation 1049/2001 manifestly applied to the document requested by the complainant which, at the time of the confirmatory decision, related to an ongoing infringement procedure. That decision was therefore in compliance with the judgment of the General Court in the Petrie case and the more recent judgment of the Court of Justice in Case C-139/07 P.

24. The purpose of the above-mentioned investigation was to ensure that Denmark fulfils its obligations under the TFEU. The public disclosure of the requested document during the investigation would have put in the public domain essential information gathered and would consequently have weakened the Commission's ability to seek, together with the Member State concerned and without undue external pressure, a solution that as in conformity with EU law.

25. Indeed, on the basis of the applicable case-law, there is clear scope for the exception under the third indent of Article 4(2) of Regulation 1049/2001 to apply to the disclosure of documents relating to ongoing infringement procedures. In addition to the Petrie case-law, it is to be noted that, in interpreting the third indent of Article 4(2) of Regulation 1049/2001, the Court of Justice has, in a recent ruling, emphasised that, in an administrative procedure between the Commission and the concerned Member State, the absence of access to the file is important issue to take into account. The Court indeed stated 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." As in a procedure for reviewing State aid, infringement proceedings on the basis of Article 258 TFEU are of a bilateral nature and the Commission's position is only addressed to the Member State concerned. Consequently, the Court of Justice's interpretation cited above applies directly to infringement proceedings.

26. Furthermore, Article 6(1) of Regulation 1367/2006 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[5] (the "Aarhus Regulation") provides that an overriding public interest is presumed to exist in relation to commercial interests and inspections, investigations and audits, where the information requested relates to emissions into the environment. However, that same Article expressly excludes investigations concerning possible infringements of EU law from the presumption of an overriding public interest in disclosure. As a result, the applicability of the exception provided in the third indent of Article 4(2) of Regulation 1049/2001 to documents produced in the context of ongoing infringement procedures remains unchanged in that respect.

27. As to the specific question whether the Commission considers in general that the Petrie judgment also applies when a Member State openly and clearly states that it has no interest in keeping the documents in question confidential, the Commission noted the following. The procedure laid down in Article 258 TFEU comprises two consecutive stages, the pre-litigation stage, which is of an administrative nature, and the judicial stage, where proceedings are brought before the Court. The purpose of the pre-litigation procedure laid down in Article 258 TFEU is to allow the Member State to put an end to any infringement, to enable it to exercise its rights of defence and to define the subject matter of the dispute with a view to bringing an action before the Court. Should the case be brought before the Court, the premature disclosure of the document, would also undermine the court proceedings.

28. Consequently, even if a Member State were to agree to disclosure, the Commission could nevertheless conclude that its interest in pursuing the investigation free from external influences and the protection of court proceedings precludes public disclosure.

29. Each of these considerations should be kept in mind when assessing, in a concrete case, whether disclosure of the documents in question would undermine the ongoing investigation.

30. Regarding the Ombudsman's second question indicated above, the Commission indicated that it did not have any general policy or practice of disclosing documents in open infringement proceedings between 2006 and 2009. DG Environment merely disclosed documents concerning certain open infringement cases on a case-by-case basis. As far as the Commission services recalled, there were only three instances of such disclosure: in case 2003/2070 against Denmark concerning the Habitats Directive, in case 2006/2134 against Denmark concerning the Birds Directive, and in case 2006/2144 - which is not covered by the present complaint - against Denmark concerning the Habitats Directive.

31. In their observations on the Commission's opinion, the complainants essentially maintained their complaint. They expressed disappointment at the fact that the Commission did not openly and expressly admit that its DG Environment had adopted a new practice as such. They also expressed disappointment over the Commission's reference to Case C-139/07 P, a case which concerned a state aid investigation that, in their view, was of very little relevance to the case here concerned. They considered that the only potentially relevant judgment on which the Commission relied, the Petrie case, was too old and lacked sufficient authority because it was never confirmed by the Court of Justice. They regretted the Commission's position that, even when a Member State renounces to its right to confidentiality, the infringement documents may, in general, still be subject to the exceptions provided in Regulation 1049/2001.

32. The complainants noted that the specific document to which they had sought access was disclosed following the closure of the infringement investigation concerned.

The Ombudsman's assessment

Preliminary remarks

This case is similar with another case before the Ombudsman

33. The Ombudsman notes that the main issue which his present draft recommendations concern is very similar to the one raised in another case, that is, case 1947/2010/PB. The complainants and the Commission are aware of this fact. The Ombudsman's assessments in both cases are coordinated and the draft recommendations concerning both cases are being adopted on the same day.

34. The issues raised in this case can usefully be examined under following the three headings: 'The short-lived new practice'; 'The reasons for revoking the new practice'; 'The systemic issues raised regarding non-disclosure of infringement documents'.

The short-lived new practice

35. This issue requires an assessment that is frank and free of semantic considerations. To attempt a definition of the term 'practice' is neither useful nor necessary. On the basis of the available evidence, referred to in paragraphs 3 and 4 above, it is clear that the Commission's DG Environment at one point 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 is 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 is 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."

36. The Ombudsman fully understands the complainants' disappointment at the fact that the Commission did not more openly and expressly engage with their 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 is 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 the 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 complainants had simply misunderstood what had happened.

37. At the same time, the Ombudsman also notes 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 an inconsistency is 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.

38. The Ombudsman notes that the Commission's opinion in the present case was much more frank than the opinion it submitted on the above-mentioned first complaint concerning the same issue. In light of the delay that occurred in the submission of that opinion, the Ombudsman ventures to conclude that the issue was the subject of some discussion, possibly even debate, within the Commission. Again, that is a sign of a normally functioning bureaucracy. The fact that the Commission's opinion could have been even more frank in its account of the facts and its related conclusions does not detract from the fact that the Commission in the end conveyed information, quoted above in paragraph 35, which enabled the Ombudsman to reach his related factual finding.

39. In light of the above, the Ombudsman concludes 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 does not, however, consider it necessary to issue a formal and public critical remark in this respect.

The reasons for revoking the short-lived new practice

40. This part specifically concerns the specific issue of a revocation of the practice that the complainants were led to believe existed.

41. The Ombudsman notes that the Commission made the following correct remarks initially in its communications with the complainant and subsequently in its opinion.

42. 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[6], excludes the application of the presumption of an overriding public interest in the disclosure of documents as far as infringement procedures are concerned. The importance of this point is that, in certain circumstances, the Aarhus Convention provides for a presumption of an overriding public interest in the disclosure of information.

43. 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.

44. In light of the above, the Ombudsman cannot 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

45. The basic systemic issue raised in the present case is well-known. It is whether respect for EU law is best ensured through an open enforcement policy or through a secretive one. The Commission appears to consider that the latter policy better ensures respect for EU law. The complainants believe the opposite.

46. It goes without saying that the Ombudsman has based his considerations on the presumption that all relevant actors, including the Commission and the complainants, share a common desire for the enforcement of EU law to be swift and effective. Moreover, it is undeniable that the Commission has taken very significant steps to increase the level of openness in relation to closed infringement investigations. It has done so even to the point of disclosing documents from a Member State despite the latter's objections (see Case T-59/09, Germany v Commission[7]). The issue here at stake is whether, in relation to ongoing infringement investigations, the above-mentioned common aim is best ensured through secrecy or through openness.

47. The European Ombudsman is not aware of any detailed empirical research into the benefits or drawbacks, for the Rule of Law and for compliance with EU law, of either an open or a secretive enforcement policy. It is, however, well known that EU Member States which generally have a more transparent public administration also tend to enjoy a high degree of Rule of Law and of compliance with EU law. It is also noteworthy that the internationally recognised transparency organisation Transparency International is financially supported by both public and private actors of very different kinds. The idea that transparency constitutes a means for better ensuring the Rule of Law appears to be broadly shared by very different societal actors, including powerful commercial organisations.

48. The European Commission has a long and profound experience in enforcing EU law. The Ombudsman naturally takes very seriously the preoccupations that this Institution may have with regard to risks associated with an increased level of openness in relation to its Treaty-based task of guarding the Treaties and the law flowing from them. If it is indeed the case that the Rule of Law in the EU would suffer detriment because of greater transparency in the Commission's enforcement approach, it would only be natural for the Commission to opt for secrecy.

49. The Ombudsman notes that the European Commission, and the tasks it fulfils, have evolved over time. For a long period, the Commission was very much 'on its own' in ensuring Member States' respect for EU (or EEC) law. Its main co-actor, the Court of Justice, was, and remains, a body that by its very nature can only act in response to cases brought before it. In such a context, the presumption that secrecy - some would in the earlier context broadly refer to diplomacy - would better serve the Commission's enforcement tasks, may indeed be entirely plausible.

50. The institutional and societal environment has changed however. The EU now has a strong and mature European Parliament. It also has a well-established civil society operating across the various sectors and issues covered by Union policy making. Other slightly less visible or well-known developments have taken place too, such as, to mention but one, the creation of a European network of ombudsmen who apply EU law.

51. In the Ombudsman's view, it is a plausible resumption that the overwhelming majority of such (historically) recent EU actors share, notwithstanding their sometimes diverging orientations, the above-mentioned common desire to contribute to a strong Rule of Law in the EU. It appears to be an equally plausible resumption that they are better able to support that aim if they have more ample knowledge of ongoing EU law enforcement issues.

52. When he opened the present inquiry, the Ombudsman asked the Commission a number of questions concerning its approach to public access to documents relating to infringement cases. He was prompted to do so by the content of the correspondence that the Commission had exchanged with the complainants. In its opinion, the Commission replied to those questions, essentially outlining the various approaches and arguments on which it intends to rely to prevent public disclosure of documents relating to ongoing infringement cases. The Ombudsman considers that the present inquiry presents an appropriate opportunity to address some of the key issues relating to public access to documents in relation to ongoing infringement cases.

53. The above-mentioned approaches and arguments can be summarised as follows.

54. The starting point is a general presumption of non-disclosure. The Commission makes a general reference to "the case-law" on the issue and, specifically, to a relatively recent state aid case (see paragraph 20 above). The general presumption derives from the interest to protect the purpose of infringement investigations (the third indent of Article 4(2) of Regulation 1049/2001). The risk identified by the Commission is that of "undue external pressure" which, in its view, would likely put the purpose of an infringement investigation at risk.

55. In addition, the Commission refers to well-established case-law that recognises a right of the Member States to expect the Commission to observe confidentiality as regards investigations which may lead to infringement proceedings (Petrie judgment, see paragraph 6 above).

56. Besides the interest of protecting the purpose of the infringement investigation, the possibility that an ongoing infringement investigation may give rise to court proceedings means that the interest to protect court proceedings is at stake. In the Commission's view, this interest would in itself constitute a reason for not disclosing documents relating to ongoing infringement investigations.

57. With regard to the general presumption of confidentiality, the Ombudsman agrees that the Court's case-law contains indications that such a presumption exists. The Ombudsman is not, however, fully convinced that the specific court case which the Commission referred to (the Technische Glasswerke judgement) is a useful analogy. In that case, the Court referred to "interested parties" and a "system for the review of state aid". The Commission itself has often emphasised that, in general infringement procedures, citizens are not 'interested parties', and that the general infringement procedures (in the pre-litigation phase) are meant to constitute flexible fora for negotiation between itself and the Member State in question. To describe this as a "system" comparable to the specific rules for handling state aid issues does not appear convincing.

58. More recent case-law, however, does appear to refer to a general presumption on the lines of what the Commission intended to put forward. In its judgment of 14 February 2012, the General Court stated that "... it should first be pointed out 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 purpose of the investigations, referred to in the third indent of Article 4(2) of Regulation No 1049/2001."[8] What is also noteworthy is that the presumption to which the General Court alluded is linked to the provision referred to in the quoted passage. It does not appear to be linked to a presumption that is derived from the above-mentioned distinct, albeit related, right of the Member State to expect confidentiality from the Commission.

59. It follows that the Commission accurately referred to "a presumption" based on the said provision. With regard to the scope and the application of that presumption, the Ombudsman is not, however, convinced that the Commission's approach is fully in line with Regulation 1049/2001 and the relevant case-law.

60. To the Ombudsman's understanding, the general presumption referred to by the General Court is one that serves as a starting point and which, at most, reduces the Commission's intellectual and administrative burden in explaining to persons who request documents why disclosure cannot be granted. It allows, for instance, the Commission to refer to 'standard', though accurate, explanations for non-disclosure.

61. Moreover, the Ombudsman can only understand the presumption to apply in 'simple' situations, that is, when the infringement investigation is not characterised by any exceptional circumstances, and where the Member State itself has not yet become involved in the issue of the possible disclosure of documents.

62. Finally, the Ombudsman points out that the issue of public access to documents in ongoing infringement investigations must be characterised by a minimum degree of equality between the two parties involved, that is, the Commission and the Member States. In the above-mentioned judgment Germany v Commission, the General Court emphasised, in relation to the reasons that the Member States must provide when they oppose disclosure, that the well-known basic requirements concerning the reasons for non-disclosure apply. This means that the reasons "must be of a specific nature and the risk of a protected interest being adversely affected must be reasonably foreseeable and not merely hypothetical". These requirements should, therefore, also apply to the Commission's possible standard explanations referred to in paragraph 60 above.

63. In the present inquiry, the Commission used a formulation that it appears to wish to adopt as a standard explanation for applying the exception set out in the third indent of Article 4(2) of Regulation 1049/2001. It is that disclosure would be likely to cause "undue external pressure".

64. The Ombudsman is not convinced that this formulation adequately complies with the requirements referred to above in paragraph 62. The expression may suffice if, as a matter of fact, the Commission could refer, also in standard form, to past experience that would clearly lend credibility to the expected risk.

65. The Ombudsman is also concerned that, when left undefined, the notion of "undue external pressure" can give the general public the impression that the Commission essentially wishes to refer to attempts by members of civil society, or even public policy makers, to bring forward, during the infringement investigation, their points of view regarding the issues that are the subject of the infringement investigation in question.

66. In light of the foregoing, the Ombudsman will make a related draft recommendation below, which will be accompanied by a further recommendation regarding future individual applications for public access to documents relating to ongoing infringement investigations.

67. With regard to the second reason that the Commission referred to above, namely, the well-established case-law (Petrie) that recognises a right of the Member States to expect the Commission to observe confidentiality as regards investigations which may lead to infringement proceedings, the Ombudsman notes that the case-law in question appears to remain valid (see, for instance, the cases referred to in the judgment in case API v Commission[9], paragraphs 120-121). Because, however, the Commission has often adopted a broad brush approach in order to refuse public disclosure, by invoking the Petrie judgment, the Ombudsman considered it necessary to inquire into the Commission's approach when the Member State itself either does not oppose public disclosure, or even considers it to be fully appropriate. In such instances, the Commission's response, also adopted in its opinion on the present complaint, is to point out that two other exceptions would probably apply, namely, the likely harm to the purpose of investigations (discussed above) and the likely harm to court proceedings (see below).

68. The Ombudsman, whose mandate requires him to consider the systemic implications of the issues before him, cannot conclude that the issue has been adequately dealt with even if those two exceptions may be validly invoked. The reason for this is an issue that the complainants refer to, namely, that a Member State which would have neither policy-based nor legal objections to public disclosure of a document relating to an ongoing infringement investigation, may be very reluctant actually to disclose the document if the Commission informs it that it would be better to keep it confidential. Put otherwise, there is, in such an eventuality, a serious risk that the citizen will be faced with a most unfortunate 'merry-go-round' situation.

69. The Ombudsman is not convinced that an appropriate degree of transparency is guaranteed in such situations. It is important to address this matter, notably because recent case-law has greatly enhanced the level of transparency that applies to the opposite situation, where it is the Member State that asks the Commission not to disclose documents[10].

70. The Ombudsman will accordingly recommend that the Commission introduce measures to ensure that individuals who wish to apply for access to documents relating to ongoing infringement investigations are guaranteed an adequate degree of transparency regarding the background to any possible refusal of disclosure, namely, the position of the Member State concerned.

71. With regard to the Commission's view that disclosure of documents relating to ongoing infringement investigations may harm court proceedings because the administrative phase of the infringement procedure may give rise to a court case, the Ombudsman can only note that the Commission did not explain this point of view in any detail. The Ombudsman is not aware of any principles, rules, or case-law that clearly lend the argument credibility. He is therefore unable to engage with the Commission's point of view, but can only remind the Commission that, if it wishes to invoke the said argument in response to particular applications for public access to documents, the case-law requires it to explain in concrete and non-hypothetical terms why the argument is valid.

B. The draft recommendations

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendations to the European Commission:

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, notably, 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.

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.

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".

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 Commission and the complainant will be informed of these draft recommendations. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 31 October 2012. The detailed opinion could consist of the acceptance of the draft recommendations and a description of how they have been implemented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 18 July 2012

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] 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.

[3] Case T-191/99 Petrie and others v Commission [2001] ECR II-3677, paragraph 68.

[4] Case C-139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I-5885, paragraph 58.

[5] 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.

[6] Regulation No 1367/2006, referred to in footnote 5 above.

[7] Judgment of the General Court of 14 February 2012, not yet published in the ECR.

[8] Case Germany v Commission, referred to in footnote 7 above, paragraph 78, emphasis added.

[9] Case T-36/04 API v Commission [2007] ECR II-3201.

[10] See Case C-64/05 P, Sweden v Commission, judgment of 18 December 2007, not yet published in the ECR; and Case T-59/09, Germany v Commission, judgment of the General Court of 14 February 2012, not yet published in the ECR.