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Decision on the Council of the EU’s refusal to provide full public access to documents related to trilogue negotiations on motor vehicle emissions (case 360/2021/TE)

Monday | 11 October 2021

The case concerned the Council of the EU’s refusal to grant full public access to documents relating to trilogue negotiations between the Council, the European Parliament, and the European Commission on draft legislation for vehicle emissions. The Council granted access to only parts of the documents it identified as falling under the request, arguing that disclosing the remaining parts could undermine the ongoing decision-making process.

The inspection of the documents by the Ombudsman’s inquiry team showed that the redacted parts contain the Council’s strategy for the negotiations with Parliament. These redacted parts had not been shared with Parliament at the time the Council refused access to the complainant.

The Ombudsman acknowledged that releasing this when the negotiations were ongoing could seriously undermine the Council’s negotiating position. As such, the redactions were justified in that context. However, she took the view that, once compromises on these issues had been reached in the trilogue negotiations, the relevant parts of the documents should be disclosed.

In the course of the inquiry, the Council identified three additional documents that it had shared with Parliament ahead of trilogue meetings. The Ombudsman took the view that they constitute important legislative documents, and that disclosing them would enable the public to properly follow the trilogue negotiations and to try to influence the legislative process at this crucial stage. The Ombudsman thus proposed to the Council that it should disclose these three documents. The Council accepted the proposal.

The complainant expressed his dissatisfaction with the outcome, notably as regards the Ombudsman’s assessment upholding the Council’s decision not to disclose certain parts of the documents while the negotiations were ongoing. The Ombudsman thus closed the inquiry, confirming her assessment and setting out in greater detail the conclusions she had reached.

Proposal of the European Ombudsman for a solution in case 360/2021/TE on the Council of the EU’s refusal to provide full public access to documents related to trilogue negotiations on motor vehicle emissions

Friday | 18 June 2021

The case concerns the Council of the EU’s refusal to grant full public access to documents concerning trilogue negotiations between the European Parliament, the Council of the EU and the European Commission on draft legislation for vehicle emissions. The Council granted access to only parts of the documents identified, arguing that disclosing the remaining parts could undermine the ongoing decision-making process.

The Ombudsman’s inquiry team examined unredacted copies of the documents in question and found that the redacted parts contain the Council’s negotiating strategy - its ’red lines’, points where it could be flexible and the Council’s fall-back options - in ongoing negotiations with Parliament. The inquiry team confirmed that these redacted parts have not been shared with Parliament.

The Ombudsman acknowledges that releasing details on the Council’s negotiating strategy, when no provisional agreement on the relevant parts of the draft legislative text has been reached, could seriously undermine its negotiating position. The Ombudsman therefore takes the view that there is a duly justified case to refuse access to the redacted text at this stage in the negotiations. However, once provisional compromises are found in trilogue meetings, the relevant parts of the documents could be disclosed.

In the course of the inquiry, the Council provided the Ombudsman with three additional documents, which it had shared with Parliament ahead of the first, second and third trilogue on this file. The Ombudsman’s inquiry team examined these additional documents and found that they contain the provisional compromises found between the co-legislators, as well as the evolving positions, proposals and comments of the three institutions in relation to those parts of the legislative text on which no agreement has yet been found. In line with recent case-law of the General Court, these are trilogue documents that should be made public upon request, so as to enable the public to participate in trilogue negotiations and to influence the legislative process at this crucial stage.

As the complainant’s access request covered all documents related to the ongoing trilogue negotiations on motor vehicle emissions, the Ombudsman proposes that the Council now identifies the three additional documents as falling within the scope of the complainant’s request and, in line with the General Court’s case-law, fully discloses them.

Decision in case 311/2021/TE on the Innovation and Networks Executive Agency's refusal to grant public access to a cost-benefit analysis concerning the Brenner tunnel project

Wednesday | 02 June 2021

The case concerned the Innovation and Networks Executive Agency's (INEA) refusal to grant public access to a cost-benefit analysis of the Brenner tunnel project. INEA took the view that the document’s disclosure would harm the commercial interests of the company implementing the project.

The Ombudsman’s inquiry team inspected the requested document and found that, while it is reasonable to consider that the disclosure of some information contained in the cost-benefit analysis could undermine the commercial interests of the company, the document also contains information that cannot reasonably be understood to be commercially sensitive. The Ombudsman therefore proposed to INEA to review its position on the complainant’s request, with a view to granting the widest possible public access.

In its reply, the European Climate, Infrastructure and Environment Executive Agency (CINEA), which succeeded and replaced INEA on 1 April 2021, agreed to grant partial public access to the cost-benefit analysis in question. The Ombudsman considered the redactions reasonable and closed the case on the grounds that her solution proposal had been accepted.