Background to the complaint

1. The European Investment Bank (EIB) has in place a Transparency Policy[1] describing which information on its activities as a bank should be routinely and proactively published on its website. Such information concerns, for example, summaries of the projects considered for financing (including the name of the project, the promoter, the location and a description of the project).[2] The Transparency Policy also specifies when certain information should be made public, for example, summaries of projects should be published at least three weeks before the project’s financing is considered for approval by the EIB Board of Directors (the ‘Board’). However, publication can be postponed in some instances until after the approval of the Board or even until after the signature of the financing agreement, if there are justified reasons to do so.

2. Documents which are not proactively published may be obtained upon request, in line with the right of public access to documents. The provisions giving effect to this right are also set out in the Transparency Policy.[3]

3. The complainant is a network of environmental organisations monitoring the activity of the EIB, among other public finance institutions.

4. In October 2022, the complainant learned, from an EIB press release,[4] that the EIB had approved investments for various energy projects. The complainant noted that the EIB had not published any summary information on its website about one of those projects, which concerned the financing of the modernisation of electricity distribution network infrastructure in Poland.

5. In November 2022, the complainant asked the EIB what the project was about and why it had not yet published any information about it.

6. The EIB replied that the publication of the project summary had been temporarily delayed until after the signature of the financing agreement “to protect the promoters’ commercial interests”, and referred to its Transparency Policy.[5]

7. The complainant then asked the EIB to review its decision not to disclose the summary of the project (by making a ‘confirmatory application’).

8. In December 2022, the EIB adopted a confirmatory decision refusing public access to the summary of the project in question. It based its decision on its Transparency Policy, which allows for the publication of project summaries to be postponed until after the signature of a financing agreement[6] and invoked the exception for the protection of the commercial interests of a natural or legal person.[7]

9. One week later, the financing agreement was signed and subsequently publicised in a press release.[8] About two weeks later, the project summary was published on the EIB website.[9]

10. Dissatisfied that the EIB’s refusal to disclose the project summary at the time of its request, the complainant turned to the Ombudsman on 30 December 2022.

The inquiry

11. The Ombudsman opened an inquiry into whether the EIB’s decision to refuse public access to the project summary was, at the time it was taken, justified.

12. In the course of the inquiry, the Ombudsman inquiry team inspected the promoter’s request to the EIB to postpone the publication of the project summary until after the loan signature, as well as the confidentiality agreement signed between the EIB and the promoter covering the project information. The Ombudsman inquiry team also met with the representatives of the EIB. The report on the meeting[10] was shared with the complainant, who commented on it. Following the meeting, the Ombudsman inquiry team also inspected the third-party consultations carried out by the EIB at the stage of the confirmatory decision.

Arguments presented

13. In its confirmatory decision, the EIB explained that the timeline for the publication of the summary of this project was decided in line with Article 4.7 of its Transparency Policy. Specifically, in this case, the summary was to be published after the signature of the financial agreement, in order to protect the commercial interests of the promoter. It further argued that since the promoter was a publicly traded company, publishing information concerning a possible EIB loan before the signature was considered as market sensitive information. The EIB also referred to the existence of a confidentiality agreement, regarding information exchanged between the EIB and the promoter. It concluded, first, that the decision to postpone the publication of the summary until after the signature of the loan was in line with its provisions, and, second, that the refusal to disclose any information about the respective project, at that time, was justified based on the exception for the protection of the promoter’s commercial interests.

14. The EIB representatives provided further clarifications in the meeting with the Ombudsman inquiry team. On the proactive publication of summaries, the EIB said that it examines the requests from promoters to delay the publication of information on a case-by-case basis, taking into account the facts and circumstances of each individual case. This assessment is not influenced by the fact that the promoter concerned might have already received loans from the EIB in the past or might have, on previous occasions, agreed to the publication of summaries earlier in the process.

15. In dealing with individual public access requests, the EIB stated that it seeks the views of the promoter in question, it conducts a detailed analysis on the promoter’s views on the commercially sensitive nature of the project information, and then draws an independent conclusion on the applicability of the exceptions provided for in the EIB Transparency Policy. The existence of a non-disclosure agreement with the promoter does not override the provisions of the Transparency Policy, which means that the EIB may decide to disclose the project information even if such an agreement is in place.

16. In this case, the EIB assessed the complainant’s initial request and confirmatory application. At confirmatory stage, the promoter was contacted anew to determine whether some project information could be released in light of the complainant’s confirmatory application. The promoter maintained its request not to release such information until after the signature of the loan.

17. The EIB conducted its own assessment of the information contained in the summary and concluded that it was indeed commercially sensitive (even the name, the value of the project and the loan amount). The EIB came to this conclusion in view of the amount of the envisaged loan, which represented approximately one quarter of the promoter’s market capitalisation, and the fact that the promoter was a publicly traded and listed company. The EIB explained that, in accordance with its Transparency Policy, it must avoid disclosures that could undermine justified interests or violate EU law (such as the Market Abuse Regulation^[11]). The fact that the summary was meant to be published after signature of the financial agreement, that is, shortly after taking the confirmatory decision, was also taken into account.

18. In its complaint to the Ombudsman, the complainant argued that the EIB did not provide sufficient justification for withholding the project information until after the signature of the financing agreement. The sole fact that the promoter is a publicly traded company could not in itself justify non-disclosure of the project summary. Such an approach would entail that, for all similar companies, project information would be automatically considered confidential until signature, without prior verification of whether disclosure could actually harm the companies’ commercial interests. Moreover, the complainant argued that the market price for joint-stock companies was affected by many factors and, therefore, it was unclear why publishing information about the EIB considering a loan would jeopardise the company’s commercial interests more than other market factors.

19. In its comments on the meeting report, the complainant added that the project summary contained environmental information, which, according to both the EIB’s Transparency Policy and the EU Aarhus Regulation,[12] is subject to a higher transparency threshold. In its view, the EIB seems not to have considered the environmental nature of the information concerned when assessing the confirmatory application.

20. The complainant also contended that the EIB failed to conduct its own analysis of the confirmatory application. Rather, it relied on the opinion of the third-party consulted. In its view, the EIB did not provide appropriate reasoning as to what was the actual and specific risk to the promoter’s commercial interests in case of disclosure of the project summary at the time of the confirmatory decision. The complainant considered the EIB’s reasoning to be “purely hypothetical”.

The Ombudsman's assessment

21. The Ombudsman’s inquiry aimed at assessing whether the EIB’s decision to refuse access to the project summary, at the time it was taken, was reasonable in light of the terms of its Transparency Policy and the EU case-law on public access to documents.

22. When assessing a public access to documents request, an EU institution needs to carry out a concrete and individual assessment of the content of the document(s) requested. This allows the institution to assess whether an exception to the right of public access is applicable and/or whether there is a possibility to grant partial access.

23. Commercial information can be protected under the EIB Transparency Policy. This exception serves to protect commercially sensitive information, that is, information that, if disclosed, would undermine legitimate commercial interests of the entity concerned. When applying this exception, the institution has to explain how disclosure would specifically and actually undermine the legitimate commercial interests at stake. In addition, the risk that the suspected damage would occur must be reasonably foreseeable and not purely hypothetical.[13]

24. The Ombudsman notes that, in its assessment of the complainant’s access request, the EIB took into account the fact that the requested project summary was meant to be published shortly after the complainant’s confirmatory application. The Ombudsman would like to stress the need for the EIB to distinguish between the ‘proactive’ publication of information and the handling of ‘reactive’ requests for access to documents and information, which are governed by different rules set out in the EIB Transparency Policy. When the EIB considers an individual access request, it should confine its assessment of harm to the possible application of one or more of the exceptions contained in Section 5 of its Transparency Policy, leaving aside considerations as to whether the requested document will eventually be published proactively.

25. Although this was not evident from the confirmatory decision, the EIB representatives clarified during the meeting with the Ombudsman inquiry team that the EIB had carried out an individual and independent assessment of the access request and of the content of the document falling within the scope of the complainant’s request. The EIB also consulted the third party concerned when assessing whether access could be granted, but clarified that the decision not to disclose was based on its own assessment.[14]

26. The EIB’s reasoning for refusing access seems to be that publicly disclosing information about the project, at a time where there was still a possibility for the EIB to delay or even not to grant the loan, in the event of that happening, could have harmed the promoter’s commercial interests. In particular, the EIB referred to the size of the envisaged loan and the fact that the promoter was a publicly traded company. However, the EIB did not put forward any concrete element that would have suggested the possibility to delay or even not to grant the loan in this case. In this context, the Ombudsman recalls that the EIB refused to disclose the project information to the complainant one week before the signature of the loan agreement and one month after the financing of the project had been approved by the EIB Board. At the time of the approval, the EIB had even announced publicly its financial support to various energy projects, including the project in question in Poland (without however disclosing the exact details).

27. Therefore, the Ombudsman is not convinced that the reasons provided by the EIB to deny access were sufficient to justify the application of the exception for the protection of commercial interests, at the time of the confirmatory decision. The Ombudsman understands that the EIB needs to be conscious of any information or documents publically disclosed prior to the formal signature of the financial agreement. However, for the exceptions to public access to be reasonably invoked, the EIB needs to show the existence of a reasonably foreseeable and not purely hypothetical risk.

28. However, given that the project summary is now public, no further inquiries into this matter are justified.

29. In future, the EIB should ensure that it provides requesters with explanations that enable them to understand the reasons why they are being denied access to a specific document and, at the same time, to enable that decision to be reviewed properly. It is not sufficient to cite an exception or to refer to an exception with general considerations only. Furthermore, when relying on exceptions to public access that are not absolute, the EIB needs to include in its decisions elements showing the examination of the existence of an overriding public interest. In particular, when dealing with documents containing environmental information, the EIB needs to consider this in its assessment, given that a public interest in accessing environmental information is deemed to exist under the EU Aarhus Regulation. In addition, as explained above, the EIB should refrain from referencing its ‘proactive’ transparency policy when refusing to grant access in a specific public access request.

30. The Ombudsman acknowledges that the EIB operates in a business setting, and that this creates business-related confidentiality obligations. However, the EIB is also an EU body that must abide by high standards of transparency and stakeholder engagement. By way of example, when conducting third-party consultations, the EIB should inform the third party concerned, in a clear manner, that the public should be granted the widest possible access to EU documents and that any reasons for refusal should be based on the exceptions provided for in the EIB Transparency Policy, and not on any other considerations. The EIB could consider providing guidance and templates designed for such consultations to all those involved in dealing with public access requests.

31. The Ombudsman will make suggestions reflecting the above observations.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

No further inquiries are justified.

The complainant and the EIB will be informed of this decision.

Suggestions for improvement

The EIB should distinguish between its policy regarding the ‘proactive’ publication of information and the handling of ‘reactive’ requests for public access to documents and information, which are governed by different rules set out in the EIB Transparency Policy. In particular, when the EIB considers an individual request for public access, it should confine its assessment to the possible application of one or more of the exceptions contained in Section 5 of its Transparency Policy, leaving aside considerations as to whether the requested document will eventually be published proactively.

The EIB should ensure that it provides detailed reasons when refusing public access to documents, explaining how the disclosure of the requested documents could specifically and actually undermine the interest(s) protected by its Transparency Policy. The EIB should also reflect in its final decisions whether it examined the existence of an overriding public interest in disclosure, where applicable, and whether partial access was considered.

When conducting third-party consultations, the EIB should inform the third party concerned, in a clear manner, that the public should be granted the widest possible access to EU documents and that any reasons for refusal should be based on the exceptions provided for in the EIB Transparency Policy, and not on any other considerations.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 17/07/2023

 

 

[1] The EIB Group Transparency Policy is available at: https://www.eib.org/attachments/strategies/eib_group_transparency_policy_2021_en.pdf.

[2] Section 4 of the Transparency Policy.

[3] Section 5 of the Transparency Policy.

[4] See press release “EIB approves €11.2 billion for clean energy, business, climate action, sustainable transport, health, education and urban investment”: https://www.eib.org/en/press/all/2022-418-eib-approves-eur-11-2-billion-for-clean-energy-business-climate-action-sustainable-transport-health-education-and-urban-investment.

[5] The EIB referred to Articles 4.7 and 5.5 of the Transparency Policy.

[6] Article 4.7 of the Transparency Policy.

[7] Article 5.5 of the Transparency Policy.

[8] See press release “Supporting Poland’s energy transition: EIB invests in PGE’s strategic project to integrate renewables and modernise network”: https://www.eib.org/en/press/all/2022-528-supporting-poland-s-energy-transition-eib-invests-in-pge-s-strategic-project-to-integrate-renewables-and-modernise-network.

[9] The project is entitled ‘PGE Electricity Distribution’ and its summary is available at: https://www.eib.org/en/projects/pipelines/all/20220251.

[10] The report on the meeting is available at: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/172089.

[11] Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014R0596&qid=1678798378300. 

[12] Regulation 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32006R1367.

[13] See, for example, judgment of the Court of First Instance of 13 April 2005, VKI v Commission, T-2/03, paragraph 69:

https://curia.europa.eu/juris/document/document.jsf?docid=60314&doclang=en.

[14] In accordance with Article 5.11 of the Transparency Policy.