The case concerned the refusal of the Council of the European Union to grant full access to legal opinions on the legislative proposals for Regulations on the establishment of the European Public Prosecutor’s Office (EPPO) and on the European Union Agency for Criminal Justice Cooperation (EUROJUST).

In the course of the Ombudsman’s inquiry, the Council agreed to disclose two of the four documents, but maintained its refusal to disclose fully the two remaining documents, although partial access was granted.

The Ombudsman accepts that the refusal to disclose the legal opinions fully was justified on the grounds that it would undermine the protection of legal advice and court proceedings. She therefore closes the case with a finding of no maladministration, but invites the Council to review its refusal in light of the further passage of time.

The case concerned the complainant’s request for access to two e-mails sent from the private e-mail account of the President of the Governing Board of the European Research Council Executive Agency to the members of the Scientific Council of the Agency. When the Agency refused access on the basis that the two e-mails were not in its possession as they were sent from a private account, the complainant turned to the European Ombudsman.

The Ombudsman opened an inquiry into the issue, after which the President of the Governing Board provided the Agency with copies of the two e-mails. Thus, the Agency could assess the complainant’s request for access to the e-mails under Regulation 1049/2001^[1]. The Agency then granted the complainant partial access to the documents. The Ombudsman obtained full copies of the two e-mails and was able to verify that the redactions made in the copies disclosed to the complainant were justified.

The Ombudsman therefore closed the inquiry with a finding of no maladministration.

The case concerned the Commission’s refusal to grant public access to draft versions of an Impact Assessment Report (IAR) on indirect land-use change related to biofuels (ILUC). Disclosure of the documents was refused on the ground that it would undermine the Commission’s decision-making process. The complainant, a group of organisations, considered that it should be granted access to the documents it requested.

The Ombudsman inquired into the issue. She noted that in September 2015, Parliament and Council adopted Directive 2015/1513. That Directive was based on the Commission’s legislative proposal to which the impact assessment report, the draft versions of which were at issue in this case, was attached. The Ombudsman therefore proposed that, in light of these new circumstances, the Commission grant public access to the requested documents. The Commission disagreed, arguing that there had been no maladministration on its part. It however invited the complainant to make a new request for access to documents, in light of the new circumstances. The complainant later informed the Ombudsman that, following a new request for access to documents, the Commission granted access to the documents it had requested. The Ombudsman thus closed the case with a finding that no further inquiries into the complaint were justified. She also pointed out that the Ombudsman is entitled to ask an institution to take into consideration, when responding to a proposal for a solution of the Ombudsman in an access to documents case, new arguments as to why a document should be released.

The case concerned the European Commission's refusal to grant public access to evaluation forms drawn up to assess Member States’ applications for Commission co-funding of national passenger name record data (PNR[1]) processing systems. The complaint was lodged by a Member of the European Parliament.

When denying access to the requested evaluation forms, the Commission relied on a judgment of the General Court which recognised the need to maintain the confidentiality of evaluation committees' proceedings in relation to tender procedures. In that case, the Court ruled that disclosure of the opinions of the evaluation committee members would compromise their independence, and thus seriously undermine the decision-making process of the institution concerned. The complainant considered, however, that this judgment was inapplicable to an evaluation procedure concerning the assessment of applications for funding submitted by Member States.

The Ombudsman inquired into the issue and found that the Commission's refusal to disclose the requested documents was not justified. Moreover, she agreed that there was an overriding public interest in the disclosure of the requested documents. The Ombudsman therefore made a recommendation to the Commission to release the requested documents (she agreed however that the names of the evaluators could be redacted).

The Commission refused to accept the Ombudsman’s recommendation without providing convincing reasons for its position. The Ombudsman therefore closed the case with a finding of maladministration.

[1] Passenger Name Record (PNR) data is information provided by passengers during the reservation and booking of tickets and when checking in on flights, as well as collected by air carriers for their own commercial purposes. It contains several different types of information, such as travel dates, travel itinerary, ticket information, contact details, travel agent through which the flight was booked, means of payment used, seat number and baggage information. The data is stored in the airlines' reservation and departure control databases.

The case concerned the Commission’s failure to reply to the complainant’s correspondence in the context of a financial audit at the Member State level. Following the Ombudsman’s intervention, the Commission replied. It disclosed the document requested by the complainant but redacted some personal data (names of physical persons). The Ombudsman found that the Commission correctly justified the redaction under Regulation 45/2001.

The case concerned the handling by the European External Action Service (EEAS) of the complainant’s request for public access to the “Political Dialogue and Cooperation Agreement” between the EU and Cuba. In the course of the Ombudsman’s inquiry, the EEAS released the document. As a result, the Ombudsman closed the case as settled.

The case concerned the Commission's refusal to grant public access to its opinion on the draft Serbian law on Free Legal Aid.

The Ombudsman inquired into the issue and carried out an inspection of the document concerned. The Ombudsman assessed the information on file and found the Commission's refusal was justified under the relevant applicable rules on access to documents (Regulation 1049/2001).

Therefore, the Ombudsman closed the case with a finding of no maladministration. That said, the Ombudsman's findings are based on the interpretation of the law as it applied on the date on which the Commission gave its decision on the complainant's confirmatory application. Nothing precludes the Commission, acting in the public interest, to strive for greater transparency in the manner in which it conducts the pre-accession negotiation and as the negotiation progresses or is eventually concluded. The entry into force of the draft Free Legal Aid Act, the provisional closure of Chapter 23 of the accession negotiations and the eventual Serbian accession to the EU are all times when the Commission could reassess the situation so as to establish whether the reasons justifying its refusal to grant access to the requested document still apply. The Ombudsman trusts that the Commission will carry out this reflection.

This case concerned the European Commission's refusal to grant full public access to the evaluation reports of the proposals for an EU-funded project on Roma in Albania.

The Ombudsman inquired into the issue and found that the Commission had correctly refused full access on the basis of the exception to public access which protects commercial interests. She therefore concluded that there was no maladministration by the Commission.

The complainant, a London based financial journalist, requested public access to documents containing detailed information on the European Central Bank's two Asset Purchase Programmes which run until March 2017. The purpose of these Programmes is to bring inflation rates to levels close to 2%. More particularly, the complainant was interested in a country by country, bank by bank, and product by product breakdown of the Purchase Programmes, including the prices paid for securities, the quantities purchased, as well as the fees paid to brokers.

The ECB replied that, whereas aggregated information on the Purchase Programmes was available on its website, no access could be granted to the requested detailed and disaggregated information on the Purchase Programmes. The ECB argued that this information was covered by the exceptions relating to i) protection of the public interest as regards financial, monetary or economic policy of the Union and ii) the protection of the commercial interests of a natural or legal person. The complainant turned to the Ombudsman alleging that the ECB had wrongly refused access to the data.

In a meeting with the ECB, the Ombudsman requested additional explanations and clarifications concerning the ECB's refusal to grant access. The ECB stated that it has a dedicated internal database on the Purchase Programmes and that, on the basis of the information extracted from it, the ECB produces weekly internal confidential reports to allow the Executive Board to monitor the purchases made and to decide on possible future purchases. The ECB also provided the Ombudsman with an example of a weekly internal report. The report contained spreadsheets with details of purchases broken down by country.

On the basis of the additional information obtained during the meeting, the Ombudsman concluded that the ECB's refusal to grant access to the detailed data requested by the complainant was in accordance with the relevant case-law and thus justified. She concluded that there was no maladministration by the ECB and closed the case.

This strategic inquiry concerns the transparency of an important informal part of the EU legislative process, namely, the transparency of “Trilogues”.

The EU’s two legislative bodies, the European Parliament and the Council of the European Union, enact legislation following a proposal by the European Commission. During this process, both co-legislators, assisted by the Commission, often negotiate in so-called Trilogues, which are informal meetings between representatives of the three institutions involved. During a Trilogue, Parliament and Council try to agree a common text, based on their initial positions, which is then voted on according to the formal legislative procedure. Trilogues have proven to be very effective at reaching such agreements, and most legislation is now adopted this way.

The European Union is a representative democracy, where citizens have the right to hold their representatives accountable for the political choices made on their behalf. Citizens also have the right to participate in the EU’s democratic process. The transparency of Trilogues is a key element in ensuring that these rights are made effective and in legitimising the laws made by the EU. The EU Court of Justice has stated that the ability of EU citizens to find out the considerations that underpin legislative action is a precondition for the effective exercise of their democratic rights.

While the EU legislative process in general is quite transparent, including in comparison to many Member States, this part of the process has raised concerns about the balance between the efficiency of the Trilogue process and its transparency.

Against this background, the European Ombudsman opened a strategic inquiry. She examined which information and documents should be made proactively available to the public, and at what point in time, so that citizens can make use of their rights.

Trilogue transparency is an essential element of EU law-making legitimacy. Citizens must be in a position to scrutinise the performance of their representatives during this key part of the legislative process. Citizens also require information on the topics under discussion during Trilogues to be able to participate effectively in the legislative process.

The Ombudsman welcomes the progress so far on improving the transparency of Trilogues; however she proposes that the three institutions make the following documentation and information publicly available: Trilogue dates, initial positions of the three institutions, general Trilogue agendas, “four-column” documents, final compromise texts, Trilogue notes that have been made public, lists of the political decision makers involved and as far as possible a list of other documents tabled during the negotiations. All of these should be made available on an easy-to-use and easy-to-understand joint database. While some documents could be made available while Trilogue negotiations are ongoing, the institutions might consider it necessary in the public interest to provide proactive public access to certain types of documents only after negotiations have ended.