President European Commission

 

Dear President,

I am writing to seek a solution to this case,[1] which is based on a complaint I received from a journalist in November 2023.

In May 2023, the complainant requested public access[2] to documents concerning the EU-US Trade & Technology Council (TTC). In particular, he asked for correspondence to and from the Directorate-General for Competition (DG COMP) mentioning the TTC as well as meetings and minutes of DG COMP representatives, including the Commissioner for Competition, concerning the TTC for the period from June 2021 to April 2023.

At the initial stage, the Commission identified 78 documents as falling within the scope of the complainant’s request and provided a list of the documents. The Commission refused access to all documents, arguing that their disclosure would undermine the public interest as regards international relations.[3] In July 2023, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’). The complainant argued that the Commission had failed to substantiate sufficiently its position and explain how disclosure would actually undermine the protected interest.

In November 2023, my Office opened an inquiry given that the Commission had failed to reply to the complainant’s confirmatory application by the extended time limit, which expired on 5 September 2023. We asked the Commission to reply without further delay.

In December 2023, and in the absence of a reply to the complainant’s request, my Office asked the Commission to provide it with the documents identified at the initial stage. In January 2024, the Commission informed my Office “that part of the documents were erroneously identified at the initial stage. Consequently, as the revision of the scope of the request is part of the current Commission’s internal assessment at the confirmatory stage, the transmission of any documents identified is not feasible at this point.”

Following a reminder in February 2024, the Commission provided my Office with 50 documents potentially falling within the scope of the request.

Based on the inspection of the documents, my inquiry team notes that eight of the 50 documents^[4] are already in the public domain. It appears that the Commission disclosed three further documents following another public access request.^[5] Many of the remaining documents concern practical arrangements about meeting requests and event participation.^[6] The preliminary view of my inquiry team is that the documents do not contain any information that, if disclosed, would undermine the protection of the public interest as regards international relations. The documents pertain to the involvement of different stakeholders aiming to inform the Commission’s decision-making in relation to TTC matters, a process the Commission itself announced would be “a fully transparent and inclusive process and stakeholder engagement will be a key component of a successful TTC”.[7]  Our assessment is that the documents do not contain any information concerning the Commission’s negotiating position.

While the EU courts have recognised that the EU institutions and bodies enjoy wide discretion when determining whether the protection of the public interest as regards international relations could be undermined by disclosure of certain information, [8] they must still establish the existence of a concrete risk in light of the nature and content of the documents.[9]

Based on the inspection, it is unclear how the disclosure of a large of majority of the documents at issue in this case would risk undermining the public interest as regards international relations.

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

The Commission should reconsider its position on the public access request with a view of granting the widest possible access to the documents at issue.

I would be grateful to receive your reply to my proposal within three months, by 16 July 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.^[10] 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.^[11]

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 15/04/2024

 

[1] 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.

[2] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[3] Article 4(1)(a), third indent of Regulation 1049/2001.

[4] Specifically the following documents provided for inspection and their numbering:

Document 1, available at: https://globalinnovationforum.com/wp-content/uploads/2021/09/2021-GIF-A4S-Recommendations-for-TTC-SME-wg-two-pager.pdf

Document 13.1, available at : https://www.itic.org/documents/trade/2022.05ITITTCMay2022priorities.pdf

Document 15.1, available at https://digital-europe-website-v1.s3.fr-par.scw.cloud/uploads/2022/05/Joint-Statement-Transatlantic-partnership-and-TTC.pdf 

Document 20.1, available at : https://www.digitaleurope.org/resources/the-eu-us-trade-technology-council-from-ambitious-work-plans-to-concrete-outcomes/

Document 24.1, available at : https://transatlanticbusiness.eu/wp-content/uploads/2022/11/TBI_TTC-Recommendations_3rd-Meeting.pdf

Document 26.1., available at : https://ert.eu/wp-content/uploads/2022/12/2022-12-05-ERT-Priorities-for-the-TTC.pdf

Document 30.2 - the same document as 21.1 above.

Document 31.1, available at: https://futurium.ec.europa.eu/sk/EU-US-TTC/wg2/documents/e3g-carbon-free-europe-recommendations-centering-climate-ttc?file=2023-01/avatar-2-el-camino-del-agua-2022-pelicula-gratis.pdf&label=&language=en&page=1&sort_by=created&sort_order=&sorting=newest_first&title=

1

[5] Documents 34,35 and 35.1, disclosed following a public access request registered under reference EASE 2022/7203.

[6] For example, documents 1.1, 7, 11,13,15,20,24, 26,31.

[7] In the Commission’s 2021 Annual Activity Report, see: https://commission.europa.eu/system/files/2022-05/annual-activity-report-2021-trade_en.pdf#page=20

See also my strategic initiative on the on the transparency of the EU-US Trade and Technology Council (TTC), available at: https://www.ombudsman.europa.eu/en/opening-summary/en/172368.

[8] See, for example, Judgment of the General Court of 11 July 2018, ClientEarth v Commission, T-644/16, paragraphs 23 -25: http://curia.europa.eu/juris/document/document.jsf?text=&docid=203913&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=46943.

[9] Ibid, paragraph 22.

[10] In line with Article 2(10) of the Statute of the Ombudsman.

[11] 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.