Background to the complaint

1. In December 2023, the complainant, a journalist, submitted a request[1] for public access to the Commission, seeking access to “any documents providing insights into case law on Regulation 1049/2001” and “any templates for replies to access to documents requests”. In its reply of January 2024, the Commission identified 43 documents as falling within the scope of the request. It granted access to 42 documents with limited redactions of personal data. The disclosed documents are guidance notes and templates used by the Commission to reply to requests for public access to documents.

2. The Commission refused access to the remaining document in its entirety. This document is a table containing an overview of EU case-law related to public access to documents.[2] In refusing access to the case-law table, the Commission invoked two exceptions under the EU’s legislation on public access to documents (Regulation 10419/2001), arguing that disclosing the document could (seriously) undermine the protection of legal advice and its decision-making.[3]

3. The complainant asked the Commission to review its initial decision (by making a ‘confirmatory application’). In March 2024, the Commission confirmed its refusal to provide public access, adding that disclosure would also undermine court proceedings.[4]

4. Dissatisfied with the Commission’s refusal to grant public access to the case-law table, the complainant turned to the Ombudsman.

The inquiry

5. The Ombudsman opened an inquiry into the Commission’s refusal to give public access to a table containing an overview of EU case-law related to public access to documents.

6. In the course of the inquiry, the Ombudsman inquiry team inspected the document at issue and reviewed the additional views[5] that the Commission provided. The Ombudsman inquiry team also met with representatives of the Commission to obtain further clarifications on the Commission’s refusal to grant access to the case-law table.

7. The Ombudsman then shared with the complainant the Commission’s additional views and the report on the meeting[6]. The complainant provided comments.

Arguments presented

Protection of court proceedings 

8. The Commission argued that, if the case-law table were to be disclosed, the principle of equality of arms “in several ongoing and imminent court proceedings” would be undermined. More specifically, the Commission considered that it might be forced to defend a position different from the one it had argued for internally, in particular, “where the selection of case-law was made in order to flag the usual weak points in Commission replies, instead of defending their legality”.  In addition, the sensitive issues highlighted in the table could be ‘instrumentalised’ against it in proceedings before the EU Courts.

9. The complainant contended that the Commission failed to point to any concrete Court case or Ombudsman inquiry that could be affected by disclosure. In addition, the complainant argued that the possibility of diverging positions between different Commission services was natural and could therefore, as such, not undermine the protection of court proceedings.

10. The Commission stated that the case-law table would, “by its very nature”, be intrinsically linked to relevant court proceedings. It argued that access to a document that contains an internal, non-validated position on a matter pending before the Court can be refused, even if the document has not been drafted in the context of those Court proceedings.[7] The Commission also rejected that there are “common divergences” between its services and that, in any way, this would be irrelevant for the assessment at hand.

Protection of a decision-making process

11. The Commission contended that the case-law table is meant as internal guidance that is “not validated by the hierarchy”. If disclosed, the authors of the table may practise self-censorship going forward to avoid causing public confusion as to the Commission’s final position. In addition, if the “internal considerations and preliminary informal choice of case-law” were public, the Commission’s “ability to resort to case-law/courses of action which were not included in the document” would be impacted. Given that the case-law table contains “opinions of Commission officials and unofficial interpretations”, disclosure of the table would deprive the Commission “of a constructive form of internal criticism, given free of all external constraints and pressures”.

12. The complainant argued that the public is able to understand the nature of the document and that it does not reflect a final EU position. Even if disclosed, the legal advice contained in the document would not tie the Commission’s hands. The complainant also questioned whether the exception relating to the protection of decision-making applies at all considering that the case-law table does not “pertain to any one ongoing decision, but is of a general interpretative nature” and “a living document that is frequently updated”.

13. In reply, the Commission stated that the exception pertaining to the protection of a decision-making process is not limited to particular types of document. The Commission added that disclosure of the case-law table would discourage its authors from including (from the view of the Commission) unfavourable case-law which would, in turn, render the document unfit for purpose.

14. Finally, the Commission said that, if the document were to be published, an administrative adoption procedure would have to be followed in future. This would unnecessarily delay the process of updating the table.

Protection of legal advice

15. Furthermore, the Commission held that the case-law table brings together a “curated selection of specific quotes [from case-law by the EU Courts]” as well as “interpretation and legal advice aimed at case-handlers and the Commission as a whole”. Although the case-law in question is in the public domain, the “curated and specific choice of the critical parts [...] flags the critical points that case-handlers need to look at” when preparing a decision on a request for public access to documents. According to the Commission, the originality of the legal assessment[8] in the document lies in the selection of these specific excerpts of the case-law, and their summary and interpretation, similar to case-law commentaries which are protected by copyright.

16. Therefore, the Commission argued, the case-law table constitutes legal advice that, if disclosed, would deter the authors of the document from drafting and keeping the document updated. Specifically, the Commission reiterated that disclosure would “alter the curation criteria, discouraging the selection of the most critical case-law in favour of the case-law more favourable to the institution”, thereby defeating its purpose of flagging possible shortcomings in the Commission’s reasoning in the cases concerned. As such, the Commission’s refusal to grant access is intended to ensure the Commission’s ability to receive frank, objective and comprehensive legal advice.

17. The Commission added that it considers the document to be a toolbox for staff, not an official document or guideline. It reiterated that the table is not submitted to the hierarchy and does not follow an approval procedure (as opposed to the guidance notes, fiches, and templates to which the complainant was granted broad access).

18. The Commission also stated that no meaningful partial access could be granted to the case-law table.

19. The complainant argued that the public’s understanding of the Commission’s interpretation of the case-law would not harm its ability to obtain legal advice. On the contrary, disclosing the case-law table would be “a chance at creating a better understanding of the official point of view” and “should be considered a public service by the Commission, as it would allow citizens to have the same level of legal guidance as it affords its own case handlers”. In addition, transparency concerning legal advice increases legitimacy of and confidence in the EU’s institutions. 

Existence of an overriding public interest

20. Finally, the Commission considered that there was no overriding public interest in disclosure. It argued that transparency on its implementation and interpretation of Regulation 1049/2001 was ensured, in the light of (i) the access it had granted to the other documents requested by the complainant, including its templates and horizontal guidance notes that contain references to case-law, (ii) the case-law referenced in its annual report on the implementation of the Regulation and (iii) the replies it provides to applicants that request public access. The Commission said that it was also available for further questions or requests for information under the Code of Good Administrative Behaviour. Based on this, the Commission took the view that the fundamental right of access to documents was safeguarded “within the only limit of [its] own right of defence”. 

21. The complainant contended that an overriding public interest in disclosure existed as disclosure would enable the public to exercise its fundamental right of access to documents. Specifically, “the collection of case-law of the Commission could be a great toolbox for (...) the public (...) to make more informed requests and confirmatory applications”. In the complainant’s view, disclosure would ultimately benefit the Commission and it is not clear against whom or what the Commission would need to defend itself when it refers to its “own right of defence”. Refusal to disclose on the other hand “would give rise to the impression that interpretative tools in the hands of Commission staff are used against, rather than for the benefit of the public”.

22. The Commission contended that the complainant had invoked only general considerations that could not prevail over the reasons justifying non-disclosure. It argued that the case-law table does not relate to any legislative procedure and that it could not be required to grant access “to any documents simply because they relate to the field of transparency”.

The Ombudsman's assessment

23. The document at issue in this complaint is a table containing an extensive overview of EU case-law related to public access to documents. The case-law table was drawn up to guide the Commission’s case-handlers when dealing with access to documents requests so as to ensure the legality of the decisions they take. It is regularly updated by legal experts working in the Commission’s team dealing with public access cases and its Legal Service. In its main part, the table consists of two columns, one that shows selected excerpts from relevant case-law (normally up to five paragraphs at once) and one that briefly summarises these excerpts.

24. Regulation 1049/2001 aims to ensure that the public is granted the widest possible access to EU documents.[9] This means that the EU institutions have to give access to documents upon request, unless disclosure would undermine one of the interests the legislator deemed worthy of protection.[10] Therefore, if an institution considers that access has to be refused, it has to explain how “specifically and actually” disclosure could undermine any of the protected interests. In addition, the risk that the interest concerned will be undermined must be “reasonably foreseeable and not be purely hypothetical”.[11]

25. As regards the protection of court proceedings[12], the document does not have to be drawn up in the context of specific court proceedings. However, the document has to have a relevant link with a dispute before a court that is pending or at least imminent.[13] For such a link to exist, the document “should reveal the position of the institution concerned on contentious issues raised during the court proceedings relied upon”.[14] If such a position were to be revealed, the principle of equality of arms could be compromised.[15]

26. The Ombudsman’s review of the table showed that it contains a comprehensive overview of the existing case-law. Whilst the selected case-law might also reveal “weak points in Commission replies”, the short summaries paraphrasing the EU Court’s position can hardly be seen as the Commission’s views on contentious issues. It is thus not clear how the selection of cases, as such, would imply that the Commission has taken a position, even internally, on a specific contentious issue and that the Commission therefore might be forced to defend a different position in possible future cases.

27. Generally, EU institutions are obliged to carry out a concrete case-by case assessment when taking a decision on a request for public access to documents. If access is refused, the institution has to provide the applicant with detailed reasons for its decision. Providing staff with an overview of case-law cannot bind the Commission when assessing specific documents. Rather, as explained above, in each case, the Commission has to explain, specifically and actually, why a document (or parts thereof) cannot be disclosed. It is then for the applicant to challenge the Commission’s decision and, if relevant, to rely on relevant case-law by the EU Courts that is publicly available. Whilst applicants might find it advantageous to be able to draw on an overview of case-law produced by the Commission (rather than, for example, searching public registers) to reason their requests better, this does not amount to ‘inequality of arms’.

28. In any way, the Commission did not refer to any specific ongoing or imminent court proceedings that it is seeking to protect by the non-disclosure of the document in question.

29. In light of all this, the Ombudsman is not convinced that the Commission was justified in relying on the exception for the protection of court proceedings.  

30. To invoke the exception pertaining to the protection of its decision making[16], an institution is required to demonstrate that access to the requested document is likely to concretely and effectively bring serious harm to the decision-making process in a reasonably foreseeable and non-hypothetical way.[17] The Ombudsman does not see how the elements invoked by the Commission in the context of this access request would allow the conclusion to be drawn that its decision-making would be seriously harmed.

31. As regards the Commission’s decision making in relation to individual access requests, the case-law table serves as internal guidance for its staff dealing with such requests, including (at the initial stage) staff that might not have extensive expertise in this area. It is hard to accept that the document’s disclosure would keep Commission staff from “pondering serenely” when replying to individual access requests. Nor is it reasonable to assume that its disclosure would prevent Commission staff from relying on case-law that has not been included in the table.

32. The Ombudsman also considers the public to be perfectly capable of understanding that access requests require a case-by-case assessment to ensure the legal soundness of the Commission’s replies. The fact that the table is not validated only reinforces the idea that it is for the public to understand that the Commission may, in replies to individual access requests, “resort to case-law/courses of action which were not included in the document”. In any event, the table already contains a disclaimer regarding the nature of the document and the Commission could also clarify this in its exchanges with citizens.

33. In light of the above, the Ombudsman finds it unreasonable to consider that the Commission’s decision-making would be seriously harmed by the disclosure of the case-law table.

34. As regards the protection of legal advice[18], it must first be determined whether the content of the case-law table constitutes legal advice. If so, it must be examined whether its disclosure would undermine the Commission’s interest in seeking and receiving frank, objective and comprehensive legal advice. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.

35. For the legal advice exception to be applicable, it is irrelevant in what manner or context the advice concerned has been provided and it suffices that the advice relates to a legal issue.[19] Based on the review of the case-law table, the Ombudsman is satisfied that its content could be considered ‘legal advice’ within the meaning of Article 4 of Regulation 1049/2001.

36. It should therefore be assessed whether the content of the case-law table can be considered sensitive legal advice and whether its disclosure would prevent the Commission from receiving frank, objective and comprehensive legal advice in the future. In this regard, the EU Courts have repeatedly held[20] that the content of the advice (rather than its context) is decisive. To qualify as sensitive, the legal advice must be more than “merely an assessment of elements of interpretation of EU law”[21] that has “no originality and does not contain, in addition to those assessments, sensitive information or does not refer to confidential facts”[22]. 

37. In this regard, the Commission stated that the originality of the legal advice in the document lies in the selection of specific excerpts of case-law, and their summary and interpretation, which it likened to case-law commentaries. Based on the inspection of the case-law table, the Ombudsman is not convinced that it contains particularly sensitive information given that the case-law included in the table is already in the public domain. While she recognises that the “curated and specific choice of the critical parts [...] flags the critical points that case-handlers need to look at” and that this exercise implies a considerable workload for the Commission’s staff, it is not clear how exactly the authors of the document would be deterred from drafting and keeping the document updated if it were to be disclosed.

38. The Commission argued in this regard that disclosure would “alter the curation criteria, discouraging the selection of the most critical case-law in favour of the case-law more favourable to the institution” thereby rendering the table unfit for purpose.

39. This premise is rooted in the Commission’s view that the public would not be able to grasp the informal nature of the document at issue. As the Ombudsman has indicated above, she considers that the public is perfectly capable of understanding that access requests require a case-by-case assessment and that the case-law table is only a tool to assist Commission staff in making such assessments.

40. The Ombudsman is thus not convinced that the case-law table contains sensitive legal advice worthy of protection and certainly not throughout.  

41. In light of all this, the Ombudsman considers that the Commission was not justified in refusing to give public access to the case-law table concerned and certainly not in its entirety.

42. While the Ombudsman welcomes the disclosure of the 42 templates and guidance notes, she very much regrets the Commission’s reluctance to disclose its case-law table. In her view, it sends entirely the wrong signal that the Commission is not ready to disclose a document that compiles case law on public access to documents and that could assist citizens in exercising their fundamental right of access to documents.

43. Regrettably, in this case, the Commission missed a chance to live up to its role as a standard setter in the area of transparency and to provide a public service to citizens. After all, it is the citizens whom the public administration serves, which is reflected by the underlying spirit of the EU Directive on open data and the re-use of public sector information[23] (applicable to Member State authorities), which sets out that: “making public all generally available documents held by the public sector − concerning not only the political process but also the legal and administrative process − is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy”[24].

44. That said, the Ombudsman does not see a useful purpose in continuing this inquiry, given that the case law contained in the table is already publicly available and the Commission granted wide access to the 42 templates and guidance notes, which broadly reflect the table’s contents. She therefore closes the case.

Conclusion

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

No further inquiries are justified.

The complainant and the European Commission will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 19/09/2024

 

[1] In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049.

[2] The document is entitled ‘Regulation (EC) No 1049/2001 Excerpts from relevant case-law and other interpretative tools’.

[3] In accordance with Article 4(2), second indent and 4(3) of Regulation 1049/2001.

[4] In accordance with Article 4(2), second indent of Regulation 1049/2001.

[5] Available at: https://www.ombudsman.europa.eu/doc/correspondence/191384.

[6] Available at: https://www.ombudsman.europa.eu/doc/inspection-report/188207.

[7] Judgment of the General Court of 24 January 2024, Veritas v Commission, T-602/22, paragraphs 65 and following: https://curia.europa.eu/juris/document/document.jsf;jsessionid=0689D39AB68CB712C642E13A2A452CAC?text=&docid=282025&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=988792.

[8] Which is an element to assess the sensitivity of legal advice in accordance with EU case-law - see also below: ClientEarth v Council, Joined Cases T-682/21 and T-683/21, paragraph 58: https://curia.europa.eu/juris/liste.jsf?num=T-682/21&language=en. 

[9] Article 1(a) of Regulation 1049/2001.

[10] In accordance with Article 4 of Regulation 1049/2001.

[11] Judgment of the Court of 17 October 2013, Council v Access Info Europe, C-280/11 P, paragraph 31: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62011CJ0280&qid=1711530952210.

[12] Article 4(2), second indent of Regulation 1049/2001.

[13] Judgment of the General Court of 15 September 2016, Philip Morris v Commission, T-796/14, paragraphs 88 and 90: https://curia.europa.eu/juris/liste.jsf?num=T-796/14.

[14] ibid, paragraph 88 (emphasis added).

[15] ibid.

[16] Article 4(3) of Regulation 1049/2001.

[17] Judgment of the General Court of 7 June 2011, Toland v Parliament, T-471/08, paragraphs 71 and 78: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-471/08.

[18] Article 4(2), second indent of Regulation 1049/2001.

[19] Judgment of the General Court of 21 April 2021, Pech v Council, T-252/19, paragraph 83: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-252/19; Judgment of the General Court of 15 September 2016, Herbert Smith Freehills v Commission, T-755/14, paragraph 47: https://curia.europa.eu/juris/liste.jsf?num=T-755/14&language=EN.

[20] Sweden & Turco v Council, paragraph 69; Judgment of the Court of Justice of 8 June 2023, Council v Pech, C‑408/21 P, paragraph 61: https://curia.europa.eu/juris/liste.jsf?num=C-408/21_P; Judgment of the General Court of 13 March 2024, ClientEarth v Council, Joined Cases T-682/21 and T-683/21, paragraph 58: https://curia.europa.eu/juris/liste.jsf?num=T-682/21&language=en. 

[21] Council v Pech, paragraph 61; ClientEarth v Council, paragraph 58.

[22] ClientEarth v Council, paragraph 59.

[23] Directive 2019/1024 on open data and the re-use of public sector information (recast): https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32019L1024&qid=1712598820658. 

[24] Recital 43 of Directive 2019/1024.