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Decision on the Innovation and Networks Executive Agency's (INEA) refusal to grant full public access to a document related to the Lyon-Turin base tunnel project (case 465/2021/VB)

Thursday | 27 January 2022

The case concerned the Innovation and Networks Executive Agency’s (INEA) refusal to grant full public access to an amendment to a grant agreement concerning the Lyon-Turin base tunnel project. INEA argued that full disclosure of the document would harm the commercial interests of the entities involved in the project and undermine the privacy and integrity of individuals.

Based on an inspection of the requested document, the Ombudsman considered that there was an overriding public interest in disclosing information related to delays in completing the project. The Ombudsman therefore proposed to the European Climate, Infrastructure and Environment Executive Agency (CINEA), which succeeded and replaced INEA on 1 April 2021, to review its position on the complainant’s request, with a view to granting the widest possible public access.

In its reply, CINEA agreed to grant wider access to the document. It argued, however, that further disclosure would undermine public security. It also noted that the public security exception in the EU’s law on public access to documents is absolute and cannot be overridden by a public interest.

The Ombudsman noted that the Agency had not previously relied on the public security exception and considered the reasoning provided by CINEA to that effect insufficient. She therefore suggested that CINEA provide the complainant with an appropriate statement of reasons supporting the application of the public security exception.

In reply, CINEA agreed to provide additional information to the complainant. The Ombudsman considers the additional information sufficient to ascertain the reason for CINEA’s reliance on the public security exception. In view of this additional information, the Ombudsman also considers it reasonable for CINEA to invoke the public security exception in this case.

As CINEA agreed to follow the Ombudsman’s suggestion, the Ombudsman closed the case with the conclusion that no further inquiries are justified.

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.