Made in accordance with Article 4(1) of the Statute of the European Ombudsman^[1]

Background to the complaint

1. The “EU Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa” (EUTFA) was created in 2015[2]. Programmes under the EUTFA are implemented in twenty-six partner countries across three regions of Africa. In 2022, the EUTFA had mobilised almost 456 million EUR in projects in Libya.[3]

2. These projects include the voluntary return of migrants to their countries of origin with reintegration support and the evacuation of refugees and asylum-seekers out of Libya, direct emergency assistance to refugees and vulnerable migrants, community stabilisation activities (such as access to education for children), and Covid-19 support.[4] It also includes projects related to border management.[5]  

3. The Commission made public that “[g]iven the particular challenges of the Libyan context, the EU uses third-party monitoring to verify results and the respect of the ‘do no harm’ principle in EUTF operations in Libya”.[6] The “no do harm” principle[7] “involves not causing further damage to the affected populations and the environment”[8].

4. In April 2022, a representative of the European Commission stated[9] in a meeting of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE committee) that the Commission put in place “third party monitoring” of operations in Libya under the EUTFA “with particular attention to ensuring the respect of the Do No Harm policy”. The representative added that “so far, the contractor did not report any violations of the Do No Harm principle directly related to all costs by [the Commission’s] trust fund programmes”.

5. In May 2022, the complainant, a journalist, sought public access to documents held by the Commission, under the EU legislation on access to documents,[10] in order to verify that statement. The request covered emails that would reveal the identity of the third party contractor, the scope of the reporting, all financial costs associated to the contract, as well as “the report” that the Commission referred to during the LIBE committee meeting.

6. In July 2022, the Commission refused access to six documents it identified as falling within the scope of the request, invoking the protection of the public interest as regards international relations[11] and an ongoing decision-making process[12].

7. Dissatisfied with the Commission’s refusal to give access to the documents, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’), in August 2022.

8. In October 2023, after the involvement of the Ombudsman[13], the Commission issued its final decision (‘confirmatory decision’) on the request. It listed 14 documents as falling within the scope of the request, including:

• The contract with the organisation entrusted with the monitoring, its addenda and its annexes, including the terms of reference and the grant application; 
• Two “manuals” regarding human rights and “Do No Harm” monitoring;
• Three “reports”: one entitled “HR Monitoring Inception Phase”, and two entitled “HR Monitoring interim report”.

9. The Commission granted partial access to certain documents, such as the contract putting in place the monitoring and its addenda. In refusing further access, the Commission invoked the protection of the public interest as regards public security[14] and international relations[15], as well as the protection of personal data[16] and the commercial interests of the contractor[17].

10. Dissatisfied with the access received, the complainant turned to the Ombudsman again.

The inquiry

11. The Ombudsman opened an inquiry into the Commission’s refusal to give wider access to the documents identified. As the complainant did not object to the redaction of personal data in the documents, the Ombudsman’s inquiry did not cover those redactions.

12. In the course of the inquiry, the Ombudsman inquiry team inspected all the documents identified by the Commission as falling within the scope of the request. This inspection suggested the existence of additional documents potentially falling within the scope of the request, which had not been identified by the Commission. A further inspection was thus carried out on a sample of these documents. The inquiry team also reviewed the documentation relating to the consultation of the contractor on the public access request.

13. The Ombudsman gave the Commission the opportunity to submit additional comments on the complaint, but received some clarifications on the scope of the request only[18].

Arguments presented

14. The Commission’s arguments to refuse wider access on the basis of the protection of the public interest as regards public security can be summarised as follows:

• The Court has recognised that the EU institutions enjoy wide discretion when assessing whether disclosure could undermine the public interest as regards public security.
• The documents in question contain sensitive information such as the identity of the contractor, locations where the contract will be conducted and the detailed methodology developed by the contractor in order to conduct the activities funded, including information on how the members of the field-based monitor network will operate.
• Disclosing such information, and even the sole identity of the contractor, could facilitate attacks on the contractor’s employees, experts, and the field-based monitor network located in Libya, considering the unstable situation in Libya.
• The contractor was consulted twice and each time raised security concerns should the documents be disclosed.
• A few documents were prepared by the contractor using its specific graphic features such as logo, layout and font. Disclosing such documents could, on its own, reveal the contractor’s identity since the contractor published other documents with the same graphic features.
•  The contract foresees obligations on the contractor to protect its employees, experts and their families located in Libya from physical risks. Disclosing the documents could put the contractor in a position where it could be undermining its capacity to fulfil this obligation.
• The contract has been prolonged. The activities of the contractor are thus still ongoing (in October 2023 when the confirmatory decision was adopted).

15. Concerning the risk of undermining international relations with the Libyan authorities, the Commission argued that the terms of reference of the contract set out a detailed analysis of the political, security and human rights situation in Libya. This information is not publicly available and could be perceived by the Libyan authorities as undue criticism. It also explained that the EU aims at assisting the country in its efforts towards a democratic, stable and prosperous state through the ‘Berlin Process’ under the auspices of the United Nations. This means that the Commission must maintain quality relations with the Libyan authorities and disclosing such documents would undermine these relations.

16. Regarding the risk of undermining the contractor’s commercial interests, the Commission argued that the documents include the grant application submitted by the contractor and contain particular know-how, strategy, inside knowledge and other specific information with competitive value. Disclosing this information would give other grant applicants in future similar calls the possibility to copy from these applications and use it to support their own. One of the documents contains the contractor’s bank details which, if disclosed, could be used by cybercriminals for malicious attacks.

17. Finally, the Commission considered that the complainant, in the confirmatory application, had not demonstrated a public interest in disclosure that would outweigh the protection of this commercial interest. The Commission was not able to identify any public interest capable of overriding the contractor’s commercial interest. 

18. The complainant put forward the following arguments in the confirmatory application, reiterated in the complaint to the Ombudsman:

• The refusal to provide access is a disproportionate restriction on citizens’ right to the widest possible access.
• The Commission is obliged to respect the Charter of Fundamental Rights[19] in all its activities, including the distribution and monitoring of EU funds. The Commission should ensure that EU funds do not support actions that are not in line with EU values and rights recognised in the Charter.
• EU institutions must give concrete and specific reasons as to why granting access to the requested documents could undermine the protected interests. The risk of the interests being undermined must be reasonably foreseeable and must not be purely hypothetical.
• The Commission’s reference to a "difficult context in Libya" is vague. The statement that disclosure would undermine the EU and its "implementing partner’s ability to conduct human rights research" is also hypothetical. The requested documents do not refer to the position of any negotiating party and do not express any specific opinion of the Commission on any negotiating position. According to EU case-law[20], a generic reference to the sensitive nature of the information contained in such reports, or of the negotiations with the third country concerned, is not a sufficient reason to refuse access to the documents.
• If only one part of a requested document is covered by an exception, the other parts of the document should be disclosed. As the EU courts have pointed out, transparency makes it possible for citizens to participate more closely in the decision-making process. This, in turn, enables the EU administration to enjoy greater legitimacy and to be more effective and more democratically accountable to the public.
• By refusing to acknowledge the existence of a public interest in disclosure, the Commission is asking the public to take its public statements at face value.

19. The complainant also argued that the partial access granted at confirmatory stage did not provide any substantive information regarding the monitoring carried out by the contractor.

The Ombudsman's assessment

a) The scope of the request for public access

20. The inspection of the documents identified by the Commission as falling within the scope of the request suggested that the Commission might have failed to identify all the documents relevant to the request.

21. It was clear from the initial request and its context that the complainant was seeking access to “the report” to verify the statement made by the Commission in the LIBE committee meeting. This was made even clearer in the confirmatory application: “My role as a journalist is, in part, to verify the veracity of such statements”. What the complainant was therefore seeking was a report supporting the statement by the Commission that “the contractor didn't report any violations of do no harm principle directly related to all costs by our trust fund programmes”. In other words, the complainant was seeking access to documents containing the substantive analysis of the contractor on the human rights monitoring it had carried out.

22. The Ombudsman inquiry team found that the “reports” identified by the Commission as falling within the scope of the request (to which access was denied), do not include the contractor’s findings, but rather set out the progress of the activities performed in execution of the contract.   

23. Furthermore, the inquiry team noted that the terms of reference (annexed to the contract), which were entirely redacted, refer to three types of reports to be issued by the contractor to present its substantive findings. These reports had not been identified by the Commission when dealing with the complainant’s access request. However, based on their description, the Ombudsman considered that they might also fall within the scope of the access request. The Ombudsman therefore asked the Commission to review a sample of these reports.

24. The inspection showed that these documents include the substantive analysis and findings of the contractor. These substantive reports would thus seem to be what the complainant was looking for when he referred to “the report” in his request for public access.

25. As a result, the Ombudsman takes the view that the Commission’s assessment of the scope of the request for public access was too narrowly construed and did not lead to the identification of all relevant documents. This constituted maladministration. The Ombudsman recommends that the Commission conduct a new search for documents falling within the scope of the complainant’s request and assess whether these can be disclosed under Regulation 1049/2001. 

b) The limited disclosure of the documents identified

Documents that could reveal the identity of the contractor due to their graphic identity

26. Having reviewed the documents at issue, many of them (i.e. reports, invoices and a manual for human rights monitoring and reporting)[21] feature the graphic identity of the contractor, as stated by the Commission. Beyond the logo of the contractor, which could easily be redacted, it seems plausible that the font used and layout are specific enough that disclosure could lead to the identification of the contractor. 

27. The question is therefore whether the identity of the contractor should be protected in this case. As argued by the complainant, public access to documents is a fundamental right and, therefore, it should be construed broadly.

28. Nevertheless, considering the wide margin of appreciation of EU institutions when assessing public security concerns under Article 4(1)(a) of Regulation 1049/2001, the Ombudsman’s inquiry was limited to determining whether the Commission “provided plausible explanations in the contested decision as to how access to the documents at issue could specifically and actually undermine the protection of the European Union’s public security” and whether “the risk of that undermining could be considered reasonably foreseeable and not purely hypothetical”[22].

29. Given that the risks to the physical integrity of the contractor’s employees and experts on the field appear concrete and realistic in light of the illustrations provided, the Ombudsman is of the view that the non-disclosure of these documents was reasonable. 

The contract and addenda, including the terms of reference

30. Most of the remaining documents, which the Commission identified, do not display the contractor’s visual identity. These documents include the contract for the monitoring, and its addenda, including the terms of reference in different iterations. 

31. Having reviewed these documents, the Ombudsman considers that important parts that have been redacted do not seem to include sensitive information throughout. Thus, whilst, in principle, the Ombudsman accepts the Commission’s wide discretion when relying on the exception for the protection of the public interest as regards public security and international relations, she does not agree that the withheld information is covered by these exceptions in their entirety.

32. For example, regarding the terms of reference, which were entirely redacted, the inspection showed that only limited parts[23] may reveal specific information on the activities foreseen (such as locations, logistics or the profile of experts) and may thus raise a public security concern for the contractor’s staff. It is not clear how disclosing large parts of this document would raise such concerns.

33. One section of the terms of reference includes a rather detailed analysis of the situation in Libya,[24] as stated by the Commission. However, this is only one section of the terms of reference. Furthermore, the Court ruled that “the mere fact that certain documents contain information or negative statements about the political situation, or the protection of human rights, in a third country does not necessarily mean that access to them may be denied on the basis that there is a risk that the public interest may be undermined.”[25] In light of this and given the content of the document, it is not clear how large parts of the terms of reference, if disclosed, would put the EU’s international relations with the Libyan authorities at risk.

34. Regarding the “Human Rights Monitoring and Reporting Manual”[26], the Ombudsman notes that this document is in a neutral font as opposed to the other “manual” referred to above. In addition, while it refers to the identity of the contractor (which could be redacted), the document contains mostly standard knowledge on human rights and how to document and monitor breaches in practice. Most of the content is not specific to Libya or the project. It is therefore difficult to understand how disclosure of substantial parts of this document could undermine public security and thus why the Commission refused access to this document in its entirety. 

The grant application

35. The Commission refused access to the grant application - annexed to the contract and its different addenda[27] - in its entirety, invoking the protection of the contractor’s commercial interest. Having reviewed the document, the Ombudsman confirms that it includes some information of commercial value. It is also reasonable to consider that its full disclosure may create an unfair advantage for future tenders[28], as it contains inside information, experience and know-how which would reveal the contractor’s expertise. However, some parts merely summarise the requirements set out in the terms of reference. The Ombudsman therefore concludes that at least some elements of this document could be disclosed without revealing commercially sensitive information.

36. In any case, even if disclosing the grant application in its entirety would be considered to undermine the protection of the commercial interest of the contractor, it should still be disclosed if there is an overriding public interest in disclosure. When assessing this, the Commission failed to take into consideration the public interest in allowing public scrutiny of EU-funded projects and more specifically how their potential human rights impact will be monitored. The respect of human rights is a core value of the EU,[29] and citizens should be in a position to hold the EU institutions accountable for any actions taken or funded that would be at odds with these values. In addition, in this specific case, the human rights monitoring concerned EU-funded projects in a country where the EU’s involvement and potential human rights impact has already been the subject matter of public criticism[30].

37. In light of the above, the Ombudsman finds that the Commission’s refusal to provide wider access to the contract, addenda and corresponding terms of reference, as well as the grant application and the generic manual on human rights monitoring, constitutes maladministration. She therefore makes the corresponding recommendations below.

Recommendations

Based on the above findings, the Ombudsman makes the following recommendations to the European Commission:

• The Commission should conduct a new search for documents falling within the scope of the complainant’s access request, and assess whether any such additionally identified documents can be disclosed under Regulation 1049/2001;
• The Commission should reassess the contract, addenda, terms of reference and grant application as well as the human rights monitoring and reporting manual[31], with a view to giving increased public access, and taking into account the Ombudsman’s observations set out in this recommendation.

The Commission and the complainant will be informed of this recommendation. In accordance with Article 4(2) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 4 June 2024.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 04/03/2024

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC

[2] On 12 November 2015, the European Commission, 25 EU Member States, Norway and Switzerland signed the Constitutive Agreement of EUTFA. The EUTFA receives 73% of its funding from the European Development Fund (EDF), 20% from different programmes under the general EU budget and 7% from Member State contributions and other donors: https://ec.europa.eu/trustfundforafrica/index_en#:~:text=Our%20mission,contribute%20to%20better%20migration%20management

[3] See Factsheet (February 2022): https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-03/EUTF_libya_en.pdf

[4] See Factsheet (February 2022): https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-03/EUTF_libya_en.pdf

[5] See Factsheet (February 2022): https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-03/EUTF_libya_en.pdf

[6] See Factsheet (February 2022) p. 2: https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-03/EUTF_libya_en.pdf

[7]Referred to notably in the European Consensus on Humanitarian Aid, see Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the European Commission “The European consensus on humanitarian aid”, OJ C 25, 30.1.2008, p. 1–12, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?toc=OJ%3AC%3A2008%3A025%3ATOC&uri=uriserv%3AOJ.C_.2008.025.01.0001.01.ENG

[8] https://civil-protection-humanitarian-aid.ec.europa.eu/who/humanitarian-principles_en#:~:text=This%20is%20also%20essential%20to,affected%20populations%20and%20the%20environment.

[9] https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/LIBE/OJ/2022/04-20/1253993EN.pdf ; webstream available at 11:10: https://multimedia.europarl.europa.eu/en/webstreaming/libe-committee-meeting_20220421-0900-COMMITTEE-LIBE

[10] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN

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

[12] In accordance with Article 4(3) first subparagraph of Regulation 1049/2001.

[13] See case 1996/2022/NH.

[14] In accordance with Article 4(1)(a) first indent of Regulation 1049/2001.

[15] In accordance with Article 4(1)(a) third indent of Regulation 1049/2001.

[16] In accordance with Article 4(1)(b) of Regulation 1049/2001.

[17] In accordance with Article 4(2) first paragraph of Regulation 1049/2001.

[18] More precisely, the Commission clarified that some documents initially included within the scope of the request were considered, at confirmatory stage, to be out of scope.

[19] Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391-407, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012P%2FTXT.

[20] Judgment of the Court of First Instance of 7 February 2002, Aldo Kuijer v Council, T-211/00, ECLI:EU:T:2002:30, paragraphs 60 and 61.

[21]Identified in the confirmatory decision as documents 2.2, 2.3, 5.1, 5.2, 6.1, 6.2.

[22] Judgment of the General Court in case T-31/18, Izuzquiza v Frontex, EU:T:2019:815, paragraphs 63-66, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=221083&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=759426

[23] Such as in sections 5.1 and 6 of the terms of reference within Documents 1, 3.1, 4.

[24] Section 1.3 “Country background” of the terms of reference within Documents 1, 3.1 and 4.

[25] Judgment of the Court of First Instance of 7 February 2002, Aldo Kuijer v Council, T-211/00, ECLI:EU:T:2002:30, paragraphs 60 and 61, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=47741&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=758261

[26] Listed as Document 2.1 by the Commission in its confirmatory decision.

[27] Within Document 1, Document 3.1 and 4 as listed in the confirmatory decision.

[28] Judgment of the General Court in case T‑363/14, Secolux v Commission, EU:T:2016:521, paragraphs 53-54, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=898D8360DC106D08FCC843AD5C01851C?text=&docid=183581&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=757620 .

[29] Article 2, Treaty on the EU, OJ C 326, 26.10.2012, p. 13–390, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012M%2FTXT

[30] See for example https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal; See also open letter from civil society dated 2020 http://www.gisti.org/spip.php?article6388. 

[31] Listed as Document 1, 2.1, 3, 3.1, 4 by the Commission in its confirmatory application.