The case concerned an implicit refusal by the European Commission to give public access to documents related to a Communication on the instrumentalisation of migration by third countries for political purposes and on how to address such “hybrid attacks”.

Following the European Ombudsman’s intervention, the Commission adopted an explicit confirmatory decision. It gave wide partial access to several notes and a draft version of the Communication, withholding only personal data. However, the Commission refused to disclose the summary of a fast-track inter-service consultation during which the issuing of the Communication had been discussed. In refusing access to the ’fast-track summary’, the Commission relied on the need to protect the public interest as regards international relations and the need to protect its future decision-making in relation to similar situations.

Based on the inspection of the fast-track summary and considering the wide margin of discretion that EU institutions enjoy when determining whether the public interest as regards international relations is at risk, the Ombudsman found that the Commission’s decision to refuse access was not manifestly wrong. The public interest at stake cannot be superseded by another public interest that is deemed more important. As the international relations exception had been validly invoked, there was no need for the Ombudsman to assess the validity of the Commission’s arguments as regards the protection of its future decision-making. The Ombudsman therefore closed the inquiry finding no maladministration.

The complainant asked the European Commission to give public access to documents concerning EU support for migration management in Cyprus. The Commission identified four documents as falling within the scope of the request: two meeting reports, a briefing and a Flash Report, but granted access only to parts of the Flash Report. In refusing access to the other documents, the Commission invoked exceptions under the EU legislation on public access to documents, arguing that disclosure could undermine the public interest as regards public security and international relations, as well as its decision-making processes. When the Commission failed to reply to the complainant's request for review ('confirmatory application') within the applicable time limit, the complainant turned to the Ombudsman.

The Ombudsman opened an inquiry into the Commission’s implicit refusal to (fully) disclose the requested documents and the Ombudsman inquiry team inspected the documents at issue. Based on the inspection, the Ombudsman shared with the Commission her preliminary view that wider access could be granted to the documents. Shortly after the Ombudsman sent her preliminary view, the Commission adopted its confirmatory decision on the complainant’s access request, in which it confirmed its original position and refused any further access. The Ombudsman requested a meeting between her inquiry team and Commission representatives to obtain further clarifications regarding the Commission’s position.

The Ombudsman regretted that the Commission did not grant wider access to the meeting reports and the briefing in the course of her inquiry. Given that the Commission confirmed its position in the confirmatory decision and during the meeting with the Ombudsman inquiry team, the Ombudsman took the view that no purpose would be served by pursuing the matter in the context of this case. The Ombudsman, however, expects the Commission to take her detailed assessment on board when it deals with future public access requests to briefings and meeting reports such as those at issue.

The case concerned the refusal of the European Union Agency for Asylum (EUAA) to give public access to 74 documents related to reception conditions in several Cypriot migration management facilities. In refusing to give public access, the EUAA relied on three exceptions set out in the EU legislation on access to documents, that is, the need to protect the public interest as regards public security, personal data, and its decision-making process.

Based on the inspection of the documents at issue, the Ombudsman was not convinced by the EUAA’s arguments that wide disclosure would (seriously) undermine the protection of the interests invoked. The Ombudsman made a proposal for a solution, in which she asked the EUAA to reconsider its position on the request, with a view to giving significantly increased public access to the documents at issue.

The EUAA accepted the Ombudsman’s proposal for a solution and gave the complainant wide access to 64 out of the 74 documents. The Ombudsman welcomed the EUAA’s positive response to her proposal for a solution and closed the inquiry.

The case concerned how the European Commission ensures fundamental rights compliance in the context of EU funds granted to Greece for border management. The complainants, several non-governmental organisations, raised concerns that the Commission had failed effectively to monitor and evaluate EU-funded border management activities, against a background of persistent allegations of serious human rights violations by the Greek authorities.

The inquiry identified areas that the Commission should address to improve how it monitors and ensures compliance with fundamental rights in this area. However, as the Commission is currently awaiting a final report from the Greek authorities in one of the individual cases of alleged fundamental rights violations raised in this inquiry, and will also now assess Greece’s spending under the relevant programme, the Ombudsman closed the case, finding that no further inquiries were justified. She nevertheless set out some suggestions to the Commission to address the issues identified in the course of the inquiry.

In particular, the Ombudsman urged the Commission to put in place guidelines for assessing compliance with fundamental rights throughout the course of the programme implementation, notably regarding the related ‘enabling condition’ for accessing funds. As part of these guidelines, the Commission should establish criteria to determine under what circumstances it will withhold or suspend EU funds for non-compliance with fundamental rights and the related funding condition, and publish these criteria. In its assessment of credible complaints about fundamental rights violations and of the overall Greek programme, the Commission should consider whether Greece continues to fulfil the fundamental rights condition related to the funds in question. The Ombudsman also made suggestions about the transparency of the monitoring process and measures to strengthen the involvement of civil society.