The case concerned the European Commission’s refusal to give partial or wider access to two documents related to a project funded in partnership with UNICEF. In refusing access, the Commission relied on five exceptions set out in EU legislation on access to documents, that is, the need to protect the public interest as regards international relations and the financial, monetary or economic policy of the European Union or a Member State, as well as the protection of its decision-making process, the commercial interest of a third-party and the privacy and integrity of natural persons, including their personal data.

Based on the inspection of the documents at issue, the Ombudsman was not convinced by the Commission’s arguments that partial or wider disclosure would (seriously) undermine the protection of the interests invoked. The Ombudsman made a proposal for a solution asking the Commission to reconsider its position on the request, with a view to it granting the widest possible access to the documents at issue. She also reminded the Commission of its obligation to take decisions within a reasonable time and give reasons for its decisions.

The Commission accepted the Ombudsman’s proposal for a solution and provided the complainant with partial and wider access to the documents. The Ombudsman welcomed the Commission’s positive response to her proposal for a solution, which settled the complaint.  

The case concerned a request for public access to documents in relation to disciplinary proceedings following an investigation and recommendation by the European Anti-Fraud Office (OLAF) to the Commission. The Commission identified 23 documents as falling within the scope of the request and refused access to all documents in their entirety. In doing so, the Commission relied on the need to protect personal data.

When the complainant asked the Commission to review its decision, the Commission confirmed the refused access, invoking a general presumption of confidentiality arising from the protection of the purpose of investigations. The Commission also argued that public access cannot be granted to protect the personal data contained in the documents.

The Ombudsman found that the Commission’s application of a general presumption of confidentiality, after the disciplinary proceedings in question were closed, was not reasonable. Based on an inspection of the documents at issue, the Ombudsman considered that, while parts of the documents might need to be redacted to prevent the identification of individuals or to protect the purpose of future investigations, the documents do not contain sensitive information throughout. The Ombudsman thus proposed as a solution that the Commission re-consider its position on the access request with a view to providing meaningful partial access to the requested documents.

In reply, the Commission confirmed its reliance on a general presumption of confidentiality and considered that, in any event, meaningful partial access was not possible without disclosing personal data and putting at risk the protection of the purpose of the Commission’s disciplinary investigations.

The Ombudsman regretted that the Commission did not grant partial access following her proposal for a solution. The Ombudsman found that the Commission’s handling of this access request constituted maladministration.

As the Commission had reassessed its position on the complainant’s access request following the Ombudsman’s proposal for a solution and had come to the same conclusion as in its confirmatory decision, the Ombudsman saw no useful purpose in continuing this inquiry with a formal recommendation on the matter. She therefore closed the case.

The case concerned the time taken by the European Commission to conclude its assessment of an infringement complaint against Spain made in 2018. The infringement complaint concerned the legislative changes introduced in 2014 in the Spanish Ports Act and the subsequent extension, by the port authority of the Balearic Islands, of the duration of concessions to carry out recreational water sport activities on the port public domain. In their infringement complaint, the complainant argued, in essence, that the said legislative changes and the extension, by the port authority of the Balearic Islands, of the duration of the concessions breached Articles 49, 56 and 106 TFEU.

The Ombudsman found that the Commission failed to demonstrate that it had been diligent and active on the case, and that it failed to provide convincing reasons to explain why it had not been able to finalise its assessment after more than seven years. The Ombudsman considered that this constituted maladministration and made a recommendation that the Commission should finalise its assessment without further delay. The Ombudsman also identified issues related to information provided to the complainant and record-keeping in relation to the EU Pilot dialogue that the Commission conducted with Spain and she made two corresponding suggestions for improvement in that regard.

While the Commission opened a new pre-infringement dialogue (formerly known as EU Pilot dialogue) with Spain following the opening of the Ombudsman’s inquiry, the Commission had not finalised its assessment of the infringement complaint when the Ombudsman was closing this case. Nor had it provided a reasonable justification for the time taken. As such, the Ombudsman confirmed her finding of maladministration. The Ombudsman will continue to monitor the Commission’s record-keeping in relation to pre-infringement dialogues as well as the way it communicates with complainants when closing those dialogues.