# Proposal of the European Ombudsman for a solution in the above case on the failure by the European Commission to take a final decision within the applicable time limit on a request for public access to documents concerning an EU funded project to improve migration management in Libya 
- Author: European Ombudsman
- Date: 2024-03-05T00:00+01:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/solution/en/193753)
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| President European Commission |

Dear President,

I am writing to seek a solution to this case[^\[1\]^](#_ftn1){#_ftnref1}, which is based on a complaint I received from an Italian researcher on 6 June 2023. The complainant has been waiting for a reply to her confirmatory application from the Commission since 16 January 2023, which implies a delay of over a year.

The complainant requested public access to documents[\[2\]](#_ftn2){#_ftnref2} concerning financial information, beneficiary authorities and actions implemented in the framework of the EU-funded project "*Support to Integrated Border and Migration Management in Libya*".

The Commission identified 59 documents as falling within the scope of the request. It refused disclosure of 55 documents in their entirety, disclosing only four documents that are cover/transmission letters.

My Office opened an inquiry into this complaint and, in light of the ongoing delay, asked the Commission to provide my inquiry team with copies of the documents at issue.

Following the inspection of the documents, my view is that the Commission should have granted partial access to those documents with information on how the project was financed. These parts do not appear to be covered by any of the exceptions invoked by the Commission (public security and international relations). I believe that citizens have the right to be informed about the implementation of projects financed using public money.

A more detailed assessment is available in an Annex to this letter.

In light of the above, I would like to propose the following solution in this case:

**The Commission should reconsider its position on the complainant's request, with a view to granting the widest possible access to documents containing financial information, taking into account the arguments presented in the annex.**

I would be grateful to receive your reply to my proposal within three months, that is by**31 May 2024**.

At this stage, the solution proposal and its accompanying annex are confidential. My inquiry team has, however, informed the complainant of my intention to seek a solution in this case.[^\[3\]^](#_ftn3){#_ftnref3} 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.[^\[4\]^](#_ftn4){#_ftnref4}

Yours sincerely,

Emily O'Reilly  
European Ombudsman

Strasbourg, 05/03/2024

Annex: Ombudsman's proposal for a solution in case 1018/2023/NH[\[5\]](#_ftn5){#_ftnref5}
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**Background**

On 15 July 2022, the complainant requested from the Commission public access to the following documents:

*"Within the framework of the EU Trust Fund for Africa, the project "Support to Integrated Border and Migration Management in Libya" has been financed, with an estimated funding value of 57 million euro. The programme is implemented by the Italian Ministry of Interior.*

*Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:*

*1) Indication of the amount of the sum deployed and the sum not yet deployed as at 15.07.2022;*

*2) Beneficiary authorities of the approved projects.*

*3) Actions implemented (or to be implemented) to achieve the objectives defined in the Action Fiche.*

*And the following documents:*

*4) Expenditure decrees issued by the Italian Ministry of the Interior in relation to the approved actions."*

The Commission registered the request under reference number EASE 2022/4242.

On 7 November 2022, the Commission issued its initial decision on the complainant's request. It identified 59 documents as falling within the scope of the request and provided the complainant with a list of documents related to the implementation of the project. The Commission granted partial access to four of those documents (with redactions of personal data); all four documents are cover/transmission letters. It refused to disclose the remaining 55 documents in their entirety.

In refusing disclosure, the Commission invoked three exceptions[^\[6\]^](#_ftn6){#_ftnref6} provided for under the EU legislation on public access to documents (Regulation 1049/2001), arguing that disclosure would undermine the public interest as regards public security, the protection of the public interest as regards international relations, and the protection of the privacy and integrity of the individual. The Commission argued that the file was politically sensitive as it related to preventing and tackling migrant smuggling and human trafficking in Libya. It said that disclosure of the documents would be "*detrimental for the EU relations with its Member States and with the Libyan authorities*" and impede the EU's ability to provide support to vulnerable migrants in Libya and the EU's negotiating capacity. It also explained that the documents contained personal data and that the complainant had not put forward a specific purpose in the public interest to justify their disclosure.

The complainant asked the Commission to review its decision, by making a confirmatory application, on 21 November 2022.

The Commission extended the time limits to reply to the confirmatory application until 16 January 2023 and subsequently sent a holding reply as it was carrying out the necessary consultations. The Commission assured the complainant that a reply would be provided as soon as possible. In the absence of any reply from the Commission, despite several reminders, the complainant turned to the Ombudsman on 6 June 2023.

The Ombudsman opened an inquiry and asked the Commission to provide a reply to the complainant's confirmatory application as soon as possible and no later than 5 July 2023. In the absence of such a reply, the inquiry team asked the Commission to provide the documents at issue for an inspection on 25 September 2023.

**The preliminary assessment leading to a solution proposal**

An inspection of the documents shows that they can be grouped into five broad categories:

**1.** ++Narrative reports++ : 23 documents that are descriptive reports about the state of the play of the project "*Support to Integrated Border and Migration Management in Libya* "; they include 15 "*quarterly narrative information notes* "[^\[7\]^](#_ftn7){#_ftnref7} and 8 "*interim narrative reports* "[^\[8\]^](#_ftn8){#_ftnref8} (some documents are identical/duplicates).

**2.** ++Transmission notes/cover letters++ : 13 documents, four of which have already been disclosed to the public[\[9\]](#_ftn9){#_ftnref9}, the remaining nine remain undisclosed.[\[10\]](#_ftn10){#_ftnref10}

**3.** ++Financial reports++ : six documents[\[11\]](#_ftn11){#_ftnref11} consisting of tables showing the breakdown of costs for the project, either per year or for a longer period. Two documents are identical.

**4.** ++Accounting documents++ : 11 documents[\[12\]](#_ftn12){#_ftnref12} that appear to be directly extracted from the Commission's accounting system, ABAC. They are payment orders, payment requests, invoice headers and credit operations.

**5.** ++Other documents++: document 6 ("Programme Update - February 2022"), document 9 ("Inception phase provisional report - 25/11/2021") and document 49 ("Addendum Phase II").

The Ombudsman's view is the following:

As regards ++category 1 (the narrative reports)++, the Commission invoked the exceptions related to public security, international relations and privacy for these documents. It argued that the file is politically sensitive.

It is difficult to understand how these exceptions could apply to ++category 2++ , which consists of 13 transmission notes or cover letters containing no substantive information. Four of these documents have already been disclosed to the public with appropriate personal data redactions. The Commission should therefore give the **widest possible access to the remaining nine documents**.

As regards ++category 3 (financial reports)++ , aggregated financial information contained in the reports could be disclosed to the public. This is in line with the general principle that the public has the right to know how EU money is being spent. Sensitive details contained in the detailed breakdown of costs can be easily redacted. However, the main budget lines for actual expenditure should be disclosed. **Partial access to the financial reports therefore seems to be in order**.

The documents in ++category 4 (the accounting documents)++ relate to three financial operations of 5 544 224.36 EUR, 9 783 333.33 EUR and 10 000 000 EUR. With the exception of some limited personal data, the documents do not appear to fall within the scope of the *public security* and *international relations* exceptions invoked by the Commission. The Commission should therefore give **wide partial access to the documents**.

The remaining three documents are:

++Document 6++ ("*Programme Update - February 2022* " for the SIBMMIL project) contains detailed information about the tenders and purchases implemented so far. However, three lines contain key information by way of reply to the complainant's request: the total amount spent on the "equipment component" of the project (EUR 6.687.283), the total foreseen amount of EUR 16.660.000, and the amount spent on training (EUR 3.672.000). The Commission should therefore give **partial access to this specific information**in the document.

++Document 9++ ("*Inception phase provisional report - 25/11/2021* ") concerns an activity of the project related to humanitarian border management in the South of Libya that is implemented by the International Organization for Migration (IOM). The document is 58 pages long and contains an assessment of the geopolitical situation in South Libya as well as a description of the Project Activity and a draft budget. Certain parts of the document are descriptive in nature, in particular the introduction, general overview of the context in South Libya, and draft budget. The Commission should consider giving **partial access**to this document.

++Document 49++ ("*Addendum Phase II* ") is a contract signed between the Commission and the Italian Ministry of Interior amending the Delegation Agreement for the second phase of the project. The document does not contain any sensitive information with the exception of some personal data. The Commission should grant **wide partial access to this document**.

[\[1\]](#_ftnref1){#_ftn1} In accordance 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) available at: [https://www.ombudsman.europa.eu/en/legal-basis/statute/en](/en/legal-basis/statute/en).

[\[2\]](#_ftnref2){#_ftn2} Under the rules set out in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, available at: <https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049>

[\[3\]](#_ftnref3){#_ftn3} In line with Article 2(10) of the Statute of the Ombudsman.

[\[4\]](#_ftnref4){#_ftn4} 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.

[\[5\]](#_ftnref5){#_ftn5} In accordance with Article 2(10) of the Statute of the European Ombudsman.

[\[6\]](#_ftnref6){#_ftn6} Article 4(1)(a) first subparagraph, Article 4(1)(a) third subparagraph and Article 4(1)(b) of Regulation (EC) No 1049/2001.

[\[7\]](#_ftnref7){#_ftn7} Documents 1, 3, 4, 7, 10, 13, 20, 21, 31, 33, 34, 35, 36, 41 and 43.

[\[8\]](#_ftnref8){#_ftn8} Documents 15, 18, 24, 28, 32, 37, 40 and 47.

[\[9\]](#_ftnref9){#_ftn9} Documents 5, 8, 11 and 12.

[\[10\]](#_ftnref10){#_ftn10} Documents 2, 14, 22, 25, 29, 30, 42, 44 and 46. Document 19 is excluded from the list. While it is also a cover letter, it appears to contain additional elements.

[\[11\]](#_ftnref11){#_ftn11} Documents 16, 17, 23, 27, 38 and 39.

[\[12\]](#_ftnref12){#_ftn12} Documents 45 and 50-59.