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Decision in case 1564/2020/TE on the European Insurance and Occupational Pensions Authority’s refusal to grant public access to the votes and debates of its Board of Supervisors on draft regulatory technical standards

Tuesday | 18 May 2021

The case concerned the refusal of the European Insurance and Occupational Pensions Authority (EIOPA) to grant public access to the voting results and related reasoning concerning its Board of Supervisors’ decision on a draft regulatory technical standard on packaged retail and insurance-based investment products.

The Ombudsman inquired into the matter and came to the preliminary assessment that draft regulatory technical standards, as adopted by EIOPA’s Board of Supervisors, and any documents related to their adoption, constitute important elements of the process for the adoption of the ensuing delegated act by the European Commission. In this context, the Ombudsman was not convinced by the arguments put forward by EIOPA to refuse public access and she took the preliminary view that EIOPA should release the requested information.

EIOPA positively replied to the Ombudsman’s preliminary assessment. EIOPA committed to disclosing the requested information and to ensuring that future minutes of its Board of Supervisors contain appropriate information on Board members’ votes concerning decisions on legislative documents. The Ombudsman welcomed EIOPA’s reply and the steps taken, and closed the inquiry.

Recommendation in case 1777/2020/KR on how the European Commission handled concerns about the composition of the High Level Forum on the EU Capital Markets Union and alleged conflicts of interest of some of its members

Tuesday | 04 May 2021

The case concerned the High Level Forum on the proposed EU Capital Markets Union, a Commission expert group. The Forum gathered senior industry executives and top international experts and scholars to develop new ideas on related policies for the Commission.

The Forum had two types of members:

Type A - who were appointed in their personal capacity to act independently and in the public interest;

Type B - members who represented a common interest of different stakeholder organisations.

The complainant was concerned that a number of Type A members had links to financial institutions and could, as such, not be considered independent. After the Forum’s recommendations were made public, these members’ declarations of interests were no longer publicly available. In general, the complainant was concerned that the Forum’s composition was insufficiently broad and diverse.

The Ombudsman inquiry found two instances of maladministration:

1. Instead of following its own rules on conflicts of interest for Type A members, the Commission applied general measures to mitigate risks of conflicts of interest. These measures were insufficient.

2. Consequently, the split between the two types of Forum members deviated significantly from the balance that the Commission claimed it struck, and made public.

Based on her inquiry, the Ombudsman recommends that the Commission diligently apply its rules regarding conflicts of interest for individuals applying to be appointed as Type A members of expert groups. Other mitigating measures to address risks of conflicts of interest of Type A members may be taken in addition, but should not substitute the Commission’s rules to this end.

Decision in case 1871/2020/OAM on how the European Central Bank (ECB) dealt with a request for public access to documents related to the German constitutional court’s ruling on the ECB’s Public Sector Purchase Programme

Monday | 22 March 2021

The case concerned the ECB’s decision to refuse public access to documents concerning its Public Sector Purchase Programme (PSPP). The documents had been shared with the German Federal Government so as to allow it to assess the proportionality of the PSPP in the aftermath of a ruling of the German constitutional court.

In refusing access, the ECB relied on a Treaty rule requiring that the proceedings of the ECB’s Governing Council not be made public. It also relied on the need to protect the public interest as regards the confidentiality of the proceedings of its decision-making bodies, the need to protect the monetary policy of the Union and the confidentiality of documents intended for internal use.

The Ombudsman found that the ECB’s refusal to grant public access was justified. In drawing this conclusion, the Ombudsman noted that one document was covered by Treaty rules requiring that proceedings of the ECB’s Governing Council not be made public. The ECB had adequately explained why disclosing the other documents would undermine the public interest as regards monetary policy. While noting the significant public interest in the matter, the Ombudsman took account of the ECB’s efforts to provide the complainant, and the public, with as much information as possible about it and closed the case.

Decision in case 1990/2020/MIG on the European Central Bank’s (ECB) refusal of public access to documents concerning an alleged violation of EU law by a bank

Friday | 19 February 2021

The case concerned public access to files held by the European Central Bank (ECB) concerning one of the banks covered under its supervisory role. The ECB refused to give access based on the confidential nature of the documents at issue. The complainant had submitted a report to the ECB alleging that the bank had breached EU law. Based on his role in reporting the breach and his claim to be negatively impacted by the bank’s actions, the complainant was of the view that he should be granted access to the documents.

The Ombudsman found that it was reasonable for the ECB to consider that the documents at issue are confidential and protected by law. The fact that the complainant may have reported and been affected by the alleged breach does not mean he has a specific right to access the documents in question.

The Ombudsman concluded that the ECB was justified in refusing to give the complainant access to the requested documents, and closed the inquiry finding no maladministration.