# The European Ombudsman's proposal for a solution on how the European Commission dealt with a request for public access to an opinion by the Regulatory Scrutiny Board on the revision of the Food Information to Consumers Regulation
- Author: European Ombudsman
- Date: 2024-02-19T00:00+01:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/solution/en/192668)
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| President European Commission |

Dear President,

I am writing to seek a solution to this case, brought to my Office by Foodwatch on 1 December 2023.

The case concerns the Commission's implicit refusal to give public access to the opinion of the Regulatory Scrutiny Board (RSB) on an impact assessment carried out in the context of an amendment of the Food Information to Consumers Regulation.[\[1\]](#_ftn1){#_ftnref1}

At the initial stage, the Commission refused access to the requested document, arguing that its disclosure would seriously undermine its decision-making process.[\[2\]](#_ftn2){#_ftnref2} The Commission stated that, at that stage, no decision had been taken on the direction the revision of the Regulation would take and that the relevant preparatory work was ongoing.

The complainant then made a confirmatory application. In the absence of a reply within the extended time limit, which expired on 19 October 2023, the complainant turned to my Office.[\[3\]](#_ftn3){#_ftnref3}

On 15 December 2023, my Office asked the Commission to issue a response to the complainant's confirmatory application by 22 January 2024. We also asked to inspect the RSB opinion in question. The Commission shared the requested document with us and we inspected it.

On 23 January 2024, the Commission informed my Office that, unfortunately, it was not able to adopt a decision by the deadline.

The document at issue - an RSB opinion on an impact assessment of a draft legislative proposal - is a "*legislative document* ", to which the highest standards of transparency must apply.[\[4\]](#_ftn4){#_ftnref4} The Grand Chamber of the Court of Justice already had the opportunity to rule on this matter and my view is that the Commission's initial position is not in line with this case-law.[\[5\]](#_ftn5){#_ftnref5}

The Court of Justice held that legislative documents should, in principle, be disclosed at the stage when the adoption of a legislative proposal by the Commission is still uncertain and the decision-making process ongoing.[\[6\]](#_ftn6){#_ftnref6}

It said that '*the Commission is a key player in the legislative process* '[\[7\]](#_ftn7){#_ftnref7}.The Court also reminded the Commission that it cannot refuse public access to legislative documents by invoking merely general considerations, such as the need to preserve its discretion and independence, its ability to reach compromises, the atmosphere of trust in internal discussions,[\[8\]](#_ftn8){#_ftnref8} the fact that the decision-making process is at an early and sensitive stage or is lengthy, that involves possible differences of opinion between Member States,[\[9\]](#_ftn9){#_ftnref9} or that it would spread confusion among the public.[\[10\]](#_ftn10){#_ftnref10} In the Court's view, such considerations "*do not permit a finding of a specific, actual and reasonably foreseeable risk that access to the documents at issue would seriously undermine* " the Commission's decision-making process.[\[11\]](#_ftn11){#_ftnref11} Public access to legislative documents can be restricted only if a risk to the ongoing decision-making is established by demonstrating "*tangible evidence* ".[\[12\]](#_ftn12){#_ftnref12}

In its initial decision in this case, the Commission merely stated that its preparatory work was ongoing in view of gathering robust evidence and data on this complex file. In light of the case-law, it is evident that such limited and general considerations cannot justify refusing access.

My inquiry team has reviewed the document and considers that it contains standard preparatory work that can be expected in any legislative file. In other words, it is not clear how, based on the document's content, its disclosure would seriously undermine the Commission's ongoing decision-making process.

Therefore, I have decided to propose that **the Commission disclose the requested document without any further delay**.

I would be grateful to receive your reply within three months of the date of this letter, which is the customary timeline for replies to solution proposals. Given the delay already incurred in this case and the nature of the document, I would however urge the Commission to reply to this proposal as soon as possible.

At this stage, the solution proposal is confidential. My inquiry team has, however, informed the complainant of our intention to seek a solution in this case.[\[13\]](#_ftn13){#_ftnref13} Please note that our usual practice is to send a copy of the solution proposal to the complainant for comments, together with a copy of the institution's reply to it, once we have received that reply. I would therefore ask the Commission to inform us if any information contained in the solution proposal, or in its reply, should not be shared with the complainant.[\[14\]](#_ftn14){#_ftnref14}

Yours sincerely,

Emily O'Reilly

European Ombudsman

Strasbourg, 19/02/2024

[\[1\]](#_ftnref1){#_ftn1} Regulation 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food

information to consumers, OJ L 304/18.

[\[2\]](#_ftnref2){#_ftn2} Initial reply to the request for access to document EASE 2023/3645 (Ares(2023)5718944).

[\[3\]](#_ftnref3){#_ftn3} Art. 8(3) of Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public

access to European Parliament, Council and Commission documents, OJ L 145/43.

[\[4\]](#_ftnref4){#_ftn4} Under the EU Treaties, citizens have the "right to participate in the democratic life of the Union" (Article 10 of the Treaty on European Union, TEU). Therefore, all EU decisions must be taken "as openly and as closely as possible to the citizens" (Articles 1 and 10(3) TEU). Under the EU legislation on public access to documents, wider access must be granted to "legislative documents" (Article 12(2) and Recital 6 of Regulation 1049/2001).

[\[5\]](#_ftnref5){#_ftn5} Judgment of the Court of Justice in case C-57/16 P, *ClientEarth v Commission,* EU:C:2018:660, paragraph 84 to 93. [https://curia.europa.eu/juris/document/document.jsf;jsessionid=2BDC1E2E6333EC140C778466AFEC9767?text=\&docid=205322\&pageIndex=0\&doclang=en\&mode=lst\&dir=\&occ=first\&part=1\&cid=96111](https://curia.europa.eu/juris/document/document.jsf;jsessionid=2BDC1E2E6333EC140C778466AFEC9767?text=&docid=205322&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=96111).

[\[6\]](#_ftnref6){#_ftn6} Case C-57/16 P, *Client Earth v Commission,*paragraph 92.

[\[7\]](#_ftnref7){#_ftn7} Case C-57/16 P, *Client Earth v Commission,*paragraph 88.

[\[8\]](#_ftnref8){#_ftn8} Case C-57/16 P, *Client Earth v Commission,*paragraph 118-121.

[\[9\]](#_ftnref9){#_ftn9} Case C-57/16 P, *Client Earth v Commission,*paragraph 119 and 121.

[\[10\]](#_ftnref10){#_ftn10} Case C-57/16 P, *Client Earth v Commission,*paragraph 124.

[\[11\]](#_ftnref11){#_ftn11} Case C-57/16 P, *Client Earth v Commission,*paragraph 121.

[\[12\]](#_ftnref12){#_ftn12} Case T-252/19, *Pech v Council* , paragraph 92, [https://curia.europa.eu/juris/document/document.jsf?text=\&docid=240171\&pageIndex=0\&doclang=EN\&mode=lst\&dir=\&occ=first\&part=1\&cid=1916898](https://curia.europa.eu/juris/document/document.jsf?text=&docid=240171&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1916898)

[\[13\]](#_ftnref13){#_ftn13} In line with Article 2(10) of the Statute of the European Ombudsman, Regulation 2021/1163 of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman's duties:

https://www.ombudsman.europa.eu/en/legal-basis/statute/en.

[\[14\]](#_ftnref14){#_ftn14} If you wish to submit documents or information that you consider to be confidential, and which should not be disclosed to the complainant, please mark them 'Confidential'. Encrypted emails can be sent to our dedicated mailbox.