Background to the complaint

1. The complainant is an investigative journalist and researcher. In April 2022, they began submitting public access requests[1] to several EU institutions and bodies through the online platform AsktheEU[2].

2. Between October 2022 and January 2023, the complainant submitted six requests for public access to documents to the European Commission.

3. The Commission registered all six requests and the responsible Commission services started processing four of them. The Commission asked for clarifications on two of the requests, to which the complainant replied on the same day. When the Commission failed to reply to four of the requests within the extended statutory time limit, the complainant asked it to review these implicit refusals (by making ‘confirmatory applications’).

4. In July 2023, the Commission replied to the complainant’s four confirmatory applications and the two initial applications. It informed the complainant that it had decided to refuse to process all six public access requests based on the principle of prohibition of abuse of rights[3]. The Commission based its decisions on a statement that the complainant published on their website. Paraphrased, the statement reads that the complainant submits public access requests in order to annoy what they considered to be unfair power structures and to further their accountability. The Commission said that this statement implies that the complainant’s sole purpose for making public access requests is to cause a nuisance to the Commission.

5. The Commission informed the complainant that they could submit confirmatory applications following its refusal to process the two initial requests and that they could turn to the Court or the Ombudsman following its refusal to process the four confirmatory applications.

6. Dissatisfied with the Commission’s decision not to handle their public access requests, the complainant turned to the Ombudsman in August 2023.

The inquiry

7. The Ombudsman opened an inquiry into the Commission’s refusal to process the complainant’s six public access requests.

8. Based on the information received with the complaint, the Ombudsman shared with the Commission her preliminary view that the Commission’s refusal to process the complainant’s public access requests constitutes maladministration. 

9. In the course of the inquiry, the Ombudsman received the reply of the Commission on her preliminary view and, subsequently, the comments of the complainant on the Commission's reply.

Arguments presented to the Ombudsman

By the Commission

10. The Commission considered that the statement on the complainant’s website is a voluntarily expressed statement of reasons that motivates the complainant’s public access requests. In particular, the Commission understood from the statement that the explicit purpose of the complainant’s requests is to cause a nuisance to the Commission as a public administration. 

11. The Commission acknowledged that applicants do not need to state reasons for their public access requests. Nevertheless, it considered that the reasons, which the complainant voluntarily provided on their website, have legal relevance for the handling of public access requests. EU case-law confirmed that there are instances within the framework of Regulation 1049/2001 where the reasons that applicants express and that motivate their applications have to be taken into account. The Commission considered that this applies in cases where applicants attempt to demonstrate an overriding public interest[4], or where, at confirmatory stage, applicants put forward reasons casting doubt on the institution’s initial decision[5]. The Commission further stated that the “trivial nature” of an applicant’s motivation may be considered while attempting to reduce the scope of applicants’ requests to reconcile the interests of applicants with those of good administration[6].

12. The Commission also acknowledged that the right of public access is a fundamental right that stems from and is inextricably linked to the concept of openness set out in the Treaty on European Union[7]. It noted, however, that the right to public access is not an absolute right but is subject to principles and conditions[8].

13. The Commission further noted that the purpose of Regulation 1049/2001, as interpreted by the EU Courts, is to “confer on the public as wide a right of access as possible”. It stated that the Court of Justice has defined the core objective of Regulation 1049/2001 as marking a “new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizens.”[9] The Commission noted that this core objective is also reflected in the Treaties[10] and in the EU Charter of Fundamental Rights (EU Charter).

14. The Commission took the view that, while the complainant’s reasons do not directly undermine the first two purposes of Regulation 1049/2001, namely to grant the widest possible access and the easiest possible access, they undermine the other purpose of Regulation 1049/2001, that is, to promote good administrative practice on access to documents.[11] Promotion of good administrative practice on access to documents includes the preservation by the Commission of adequate administrative capacities in order to maintain its efficiency in the processing of public access requests. This, in the Commission’s view, is crucial for ensuring the widest possible access to documents and the easiest possible exercise of the right of access.

15. The Commission argued that the complainant’s requests for the sole purpose of causing a nuisance ultimately weakens the Commission’s administrative capacities thereby achieving the opposite of ensuring the widest and easiest possible access. The Commission considered that the part of the complainant’s statement, which refers to furthering accountability, was, at best, subsidiary and does not express an actual intention. Rather, the Commission saw this as an acknowledgement that the complainant is indifferent to the outcome of their applications.

16. The Commission contended that the complainant’s intention to cause a nuisance is abusive of and contradictory to the principle of openness. Article 54 of the EU Charter provides for the principle of prohibition of abuse of rights, which has been recognised by the Court of Justice as a general principle of EU law[12]. Individuals cannot rely on rights conferred by EU rules for abusive ends to obtain advantages resulting from those rights.

17. The Commission stated that its resources are limited and that it is obliged to safeguard the interests of good administration and to ensure that the right of public access is effectively and properly exercised. The Commission concluded that the complainant’s exercise of the right of public access for the sole purpose of causing a nuisance undermines the principle of openness, which is the objective of Regulation 1049/2001, and therefore constitutes an abuse of rights.

By the complainant

18. The complainant considered that the Commission misinterprets Article 6 of Regulation 1049/2001. They contended that, if the Commission had asked them for the reasons underlying their applications, they would have provided additional information.

19. They claimed that it is clear from all their public access requests that they, at no point, attempted to cause an additional burden on the Commission’s already strained resources. The complainant considered that their requests were not excessive or vexatious but were narrowly phrased and focused on topics of research and public interest. They submitted six requests in three months and complied with the Commission’s request to narrow the scope where it considered the requests to be too broad. The complainant also accepted the Commission’s repeated requests for extensions.

20. The complainant argued that instead of “scouring” applicants’ online publications and speculating over their intentions, the Commission should process their requests. They further noted that the Commission did not consider other sections of their webpage where they set out their resumé as an investigative journalist and researcher. In this context, the complainant said that the reasons for setting up their website are two-fold. They seek to showcase their experience with submitting public access requests while also expressing concern at what they consider to be an increasing lack of transparency from EU institutions, in particular in the context of releasing information on migration management.

21. The complainant considered that, by refusing to handle their public access requests, the Commission is setting a dangerous precedent.

The Ombudsman's preliminary views

22. The Ombudsman acknowledged that it may be upsetting for the Commission to read statements such as that made by the complainant on their website. Nevertheless, she noted that the right of access to documents does not depend on the specific interest an applicant may or may not have in obtaining the requested information.[13] On the contrary, the real interest that the disclosure may represent for the applicant is irrelevant for the purposes of Regulation 1049/2001.[14]

23. The Ombudsman considered that while the right of public access is not absolute, there was nothing in the information provided with the complaint that would suggest that the complainant’s exercise of this right was abusive. The complainant’s six requests were not overly broad or repetitive in nature and were clearly formulated. When the Commission asked for clarifications, the complainant responded promptly to these requests and also agreed to reduce the scope of one request.

24. Therefore, based on the information provided with the complaint, the Ombudsman’s preliminary view was that the Commission’s refusal to process the complainant’s requests based on a statement that the complainant made on their website constituted maladministration.

The Commission’s reply to the preliminary view

25. The Commission stated that while its resources as a public administrative body are limited, it remains nevertheless bound by its obligations vis-à-vis good administration including ensuring that the right to public access can be effectively and properly exercised by other applicants.

26. The Commission maintained its view that regardless of the lack of obligation to provide reasons that motivate a request for public access, a voluntary provision of such reasons does have legal relevance for the institution that is handling the request.

27. The Commission considered that, in accordance with EU case-law[15], it may in exceptional cases rely on the interests of good administration after weighing the interests of the applicant for access to the documents and the workload resulting from processing the application. It considered that its refusal to process the complainant’s applications was justified in view of the objectives and the purpose of Regulation 1049/2001, namely to promote good administrative practices to facilitate the exercise of the right to public access.

The Ombudsman's assessment

28. The right of public access to documents is a fundamental right. While it is not an absolute right, the Ombudsman maintains her view that there is nothing in the information provided that would suggest that the complainant’s exercise of this right is abusive.

29. The complainant made six public access requests over a period of three months. None of the requests is overly broad or repetitive. They are clearly formulated and allow the Commission to identify the requested documents. The complainant also promptly (on the same day) replied to the Commission’s clarification requests and they readily agreed to reduce the scope of one of their requests. The requests relate to matters of public interest such as border management and EU funding for migration management. They also concern the Commission’s guidance on the processing of public access requests, which supports the complainant’s expressly stated other purpose for making public access requests, namely to further accountability.

30. The Ombudsman notes that, under Regulation 1049/2001[16], applicants are not obliged to state reasons for their access requests. The EU Courts[17] have repeatedly held that the intentions behind and interests pursued by an applicant’s request for public access have no relevance to the application.

31. While the Commission acknowledged that applicants do not need to state reasons for their access requests, it considered nevertheless that, in accordance with EU case-law, voluntarily provided reasons are relevant for the handling of public access requests. In this regard, the Commission referred to situations in which applicants put forward arguments to demonstrate an overriding public interest in disclosure or, at confirmatory stage, to cast doubt on the institution’s initial refusal of access.

32. It is not clear to the Ombudsman how this case-law would apply here. The Commission refused to handle the complainant’s requests, based on a statement that the complainant made on their website and not in the context of their access requests. The Commission has not, in this case, refused full access under one of the exceptions to public access in Regulation 1049/2001, which the complainant could challenge by providing additional reasons, or by putting forward an overriding public interest.

33. The Commission further argued that, in exceptional cases, it may rely on the interest of good administration after weighing the complainant’s interests in public access against the workload resulting from processing their request.

34. It is correct that, in accordance with EU case-law, institutions may, in exceptional cases, and in an effort to safeguard the interests of good administration, balance the interest in public access to the requested documents against the institution’s administrative burden.

35. This case-law however requires the institution to demonstrate that three cumulative conditions are met before it may limit the scope of the examination of the requested documents.

36. Firstly, the institution must adduce proof that the administrative burden entailed by a concrete, individual examination of the requested documents is unreasonable.[18] The unreasonableness of the workload must furthermore be demonstrated objectively and cannot take into account the applicant’s personal situation[19].

37. Secondly, once the institution has shown the disproportionate burden of handling the request, it is obliged to try to consult with the applicant to specify their interest in obtaining the documents.[20]

38. Lastly, the institution must consider alternative measures that are less onerous than the concrete, individual examination of the documents. However, as the right of access is the principle, the institution is obliged to prefer the option which is the most favourable to the applicant’s right of access.[21]

39. Only when these conditions are met, may the institution derogate from the obligation to carry out a specific, individual examination of the requested documents and unilaterally limit the scope of the complainant’s request.

40. This said, the Ombudsman considers that the Commission has not met any of the three conditions set out in the relevant case-law. The Commission has not shared any assessment that the work related to the concrete, individual examination of the requested documents would be unreasonable. From the information provided, it seems that the Commission has not even identified the documents that fall within the scope of the complainant’s requests.

41. The Commission also did not try to consult with the complainant to specify their interest in the documents. Rather, the Commission took a statement that the complainant made on their webpage and interpreted it in a narrow and disadvantageous way.

42. In this context, the Ombudsman notes that the Commission, in its replies to the complainant, stated in a footnote that the complainant did not declare, in their confirmatory applications, any other reasons that would motivate their submissions. However, the complainant was never informed that they should do so nor were they asked to do so. As the Commission failed to reply within the extended statutory time limit, the complainant could only challenge its implicit rejections. The Commission did not substantively engage with the complainant or offered them the opportunity to amend or clarify their statement.

43. In light of the above, the Ombudsman thus maintains her view that the Commission’s refusal to process the complainant’s public access requests constitutes maladministration.

44. The Ombudsman is very concerned about the Commission’s reasoning in this case. The complainant has informed the Ombudsman that the Commission is still refusing to handle their public access requests. In justifying its refusals to process the requests, the Commission refers to the complainant’s website and notes that the statement is still there.

45. The Commission’s refusal to allow the complainant to exercise their fundamental right based solely on a statement that the Commission interprets rather narrowly, seems to suggest that the complainant is not free to express their (negative) views on administrative bodies publicly. It also begs the question as to whether the Commission would consider, should the complainant now remove the statement from their website, handling their requests again.

46. The Commission’s approach seems at odds with the fundamental freedoms within the EU and also with the guidelines for the new Commission that state that in “protecting our democracy, we will always respect our enduring commitment to preserving and promoting free speech”[22] and that “one of the central tenets of the rule of law and of democracy more broadly is media freedom”[23].

47. However, as the Commission has reassessed the matter following the Ombudsman’s preliminary views, the Ombudsman sees no useful purpose in making a formal recommendation, thus prolonging the inquiry.

Conclusion

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

The Commission’s refusal to process the complainant’s requests for public access to documents based on the principle of abuse of rights constitutes maladministration.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 17/01/2025

 

[1] Under 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] https://www.asktheeu.org/

[3] Article 54 European Union Charter of Fundamental Rights; https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012P%2FTXT

[4] Judgment of the Court in case C-127/13 P, Strack v Commission, para 128; https://curia.europa.eu/juris/document/document.jsf?text=&docid=158192&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13044587; Judgment of the Court in joined cases C-514/11 P and C-605/11 P, LPN v Commission, para 94; https://curia.europa.eu/juris/document/document.jsf?text=&docid=144492&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13044587 

[5] Judgment of the Court of First Instance in case T-188/98, Kuijer v Council, para 46; https://curia.europa.eu/juris/document/document.jsf?text=&docid=45228&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=13044587

[6] Judgment of the General Court in case T-2/03, Verein für Konsumerinformation v Commission, para 101; https://curia.europa.eu/juris/document/document.jsf?text=&docid=60314&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=13044587

[7] Articles 1 and 10(3) of the Treaty on European Union (TEU); https://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC_1&format=PDF

[8] Article 15(3) of the Treaty on the functioning of the European Union (TFEU); https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT

[9] Judgment of the Court in case C-57/16 P, ClientEarth v Commission, para 73; https://curia.europa.eu/juris/document/document.jsf?text=&docid=205322&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=10243561

[10] Article 10(3) TEU; Article 15(1) TFEU, Article 298(1) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union; https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012P%2FTXT

[11] See Article 1 of Regulation 1049/2001.

[12] Judgment of the Court in case C-359/16, Altún and Others, para 49; https://curia.europa.eu/juris/document/document.jsf?text=&docid=199097&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=13068731

[13] Judgment of the General Court in joined cases T-314/16 and T-435/16, VG v Commission, para 55; https://curia.europa.eu/juris/document/document.jsf?text=&docid=208102&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=10456270

[14] Ibid, para 56.

[15] Judgment of the Court of Justice of 2 October 2014 in case C-127/13, Strack v Commission, para 113; https://curia.europa.eu/juris/liste.jsf?language=en&num=C-127/13%20P

[16] See Article 6 of Regulation 1049/2001.

[17] Judgment of the General Court in Joined Cases T-424/14 and T-425/14, ClientEarth v Commission, para 121; https://curia.europa.eu/juris/document/document_print.jsf;jsessionid=7C54C3F8B7C88095766E1857D5C883D1?docid=171521&text=&doclang=EN&pageIndex=0&cid=4586345;

[18] Judgment of the General Court in case T-597/21; Basaglia v Commission, para 51; https://curia.europa.eu/juris/document/document.jsf?text=&docid=271304&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=13044587

[19] Ibid, paras 83 - 84

[20] Ibid, para 55

[21] Judgment of the Court of first instance in case T-02/03, Verein für Konsumenteninformation v Commission, para 114; https://curia.europa.eu/juris/document/document.jsf?text=&docid=60314&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=13044587

[22] Europe’s choice - political guidelines for the next European Commission 2024 - 2029, page 23; https://commission.europa.eu/document/download/e6cd4328-673c-4e7a-8683-f63ffb2cf648_en?filename=Political%20Guidelines%202024-2029_EN.pdf

[23] Ibid, page 24