Date: Tuesday, 28 February 2023

Remote meeting via WebEx

Present

European Investment Bank

Two representatives from the Inspectorate General

Two representatives from the General Secretariat

Three representatives from the Operations Directorate

Two representatives from the Legal Directorate

One representative from the Projects Directorate

European Ombudsman

Ms Jennifer King, Legal Expert

Ms Oana Marin, Inquiries Officer

Ms Silvia Fuller, Inquiries Officer

Ms Natalia Chiner, Inquiries Trainee

Purpose of the meeting

The meeting was held in the context of an inquiry into how the European Investment Bank (EIB) dealt with a request for public access to the summary of a project it decided to finance.[1] The purpose of the meeting was for the Ombudsman inquiry team to understand how the EIB handled the request and to obtain clarifications on the refusal of the EIB to provide the complainant with access to the project summary at the time of the confirmatory decision.

Introduction and procedural information

The participants introduced themselves and the Ombudsman inquiry team thanked the EIB representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the EIB as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the EIB’s prior consent.^[2]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the EIB to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

The EIB representatives explained how the complainant’s request was dealt with, and noted that it was initially considered as a request for information about the name and details of the project concerned. The EIB handled this request and provided its response in line with the EIB Transparency Policy.[3] The EIB representatives first identified the project in question, and then verified the existence of a justified request from the promoter not to publish its summary until signature of the loan agreement. The subsequent confirmatory application lodged by the complainant was handled by the EIB’s General Secretariat, as required by the EIB Transparency Policy.

The Ombudsman inquiry team asked whether, following the complainant’s access request, the EIB conducted an individual assessment on the possibility of disclosing information about the project, or whether the decision not to do so was based on the promoter’s initial request not to proactively disclose the summary until signature.

In reply, the EIB representatives explained that an individual assessment of the complainant’s initial request for information was carried out, which consisted of verifying the existence of a justified request from the promoter to delay the publication of the project summary until signature. When handling the confirmatory application, a more detailed assessment was conducted, which included contacting the promoter anew to ask whether certain information, such as its name, could be released at that stage and in light of the complainant’s confirmatory application. The promoter maintained its request to delay the disclosure of such information until signature of the loan agreement.

The Ombudsman inquiry team then asked whether, at the stage of the confirmatory application, the promoter provided the EIB with reasoning as to why it considered that information such as its name should not be released. The Ombudsman inquiry team also asked if, as a general rule, the EIB endorses the justifications put forward by promoters for refusing disclosure of information following a confirmatory application, or whether it analyses those justifications to determine for itself whether the exceptions under its Transparency Policy apply.

The EIB representatives indicated that, when dealing with an access request, the EIB carries out a rather detailed assessment of the reasoning advanced by its clients not to allow the disclosure of information on the projects. This assessment, conducted in the context of a specific access request, is more exhaustive and rigorous than the one generally conducted in the context of proactive publication of project summaries, based on the promoter’s justified request to delay the publication of the project summary until approval or signature. They indicated that in the current case the promoter considered the information as commercially sensitive at that time. The EIB found that postponing its disclosure until signature of the loan was justified taking into account the significance of the loan amount to be eventually granted by the EIB and the fact that the promoter is a publicly traded and listed company.

The Ombudsman inquiry team then noted that the same promoter had already received in the past loans from the EIB and, in these cases, the summaries were proactively published at least three weeks before the projects were considered for approval by the Board, as required by the EIB Transparency Policy. The Ombudsman inquiry team asked what was the particularity of this project that justified considering information such as the name of the promoter as commercially sensitive until after the signature of the loan agreement.

In reply, the EIB representatives explained that the EIB carries out a case-by-case analysis and always consults with promoters when it comes to deciding on the timing of the publication of project summaries, regardless of whether the promoter concerned has already received loans from the EIB and has agreed, on past occasions, not to delay the publication of those summaries. They also stated that, given the amount of the loan to be granted in the case at hand, which represented ca. one quarter of the promoter’s market capitalisation, the matter was considered to be sensitive. In accordance with the EIB Transparency Policy, the EIB must avoid disclosures that could undermine justified interests or violate EU law (such as the Market Abuse Regulation[4]).

The EIB representatives also stressed, in more general terms, and in particular when the amount of the loan to be granted is significant, that promoters (and especially listed companies) can sometimes be concerned about the possible impact on the perception of their own clients and stakeholders if the EIB were to eventually delay or even not to grant the loan.

This confirmed the sensitivity of announcing this particular loan before its signature.

The Ombudsman inquiry team then asked if, when dealing with the complainant’s confirmatory application, the EIB considered the possibility of granting partial access to the project summary, in particular to information other than that regarded as highly sensitive.

The EIB representatives confirmed that they considered granting partial access, but, since the promoter rejected the disclosure of its name, the value of the project and the loan amount, this option was disregarded, as the complainant would have obtained no meaningful information. The fact that the summary was meant to be published after signature, i.e. shortly after the confirmatory decision, was also taken into account.

As a follow-up, the Ombudsman inquiry team asked whether, in this particular case, the EIB was concerned that, given the characteristics of the market in which the promoter operates, partial access to the project summary would have entailed the risk of making the client easily identifiable. The EIB representatives clarified that this was one of the concerns.

The Ombudsman inquiry team then asked in which situations the EIB signs non-disclosure agreements with its clients, and more specifically, if these are concluded whenever a loan is envisaged, or only as regards specific projects.

The EIB representatives clarified that these agreements are signed only when there is a request from the promoter, and not for all projects. They also explained that there is no formal link between the existence of a non-disclosure agreement, on the one hand, and the process for the proactive publication of the project summary, on the other. This means that such an agreement is not necessarily signed in all instances where the publication of the summary is postponed.

The EIB representatives also clarified that the non-disclosure agreements concluded with the promoters do not override the Transparency Policy, and therefore, when an access request is received, a separate analysis in line with the Transparency Policy is carried out to determine whether the information protected under the confidentiality agreement can be disclosed. In those assessments, the existence of a non-disclosure agreement is a factor taken into account, but not the only one.

The Ombudsman inquiry team asked for further clarifications on whether, when a promoter does not grant its permission for the disclosure of information that it regards as commercially sensitive, the EIB may counter such position and decide to provide the requestor with the information.

In reply, the EIB representatives indicated that they analyse the promoters’ views on the commercially sensitive nature of the information concerned and they draw their independent conclusion on the possible applicability of the Transparency Policy exceptions.

The Ombudsman inquiry team then focused on the argument raised by the complainant that, in recent years, an overall increase in the EIB’s practice of postponing the publication of project summaries until signature can be observed, and asked the EIB representatives to provide their views on the matter.

The EIB representatives confirmed that, while the number of requests for postponement varies every year, they have noticed an increased trend. However, they also highlighted that it is difficult to identify the reasons why this is occurring, as it depends on the requests made by promoters, and is likely to be linked to the kind of projects considered for financing. The EIB representatives also noted that the “delay” in publication is not an EIB standard practice but, rather, it is an exceptional procedure under the Transparency Policy. It must be noted that, under a practical perspective, this gives rise to additional work for the EIB. Moreover, the EIB representatives noted that delays in the publication of summaries may be more likely to occur towards the end of the year, if a high number of loans are signed by year end and that this is one of the aspects they are looking into.

Before concluding the meeting, the Ombudsman inquiry team asked whether the EIB could provide the Ombudsman’s Office with a copy of the exchanges and consultations that the EIB had with the promoter following the complainant’s confirmatory application. The Ombudsman inquiry team confirmed that the Ombudsman would not disclose any information identified by the EIB as confidential.

Conclusion of the meeting

The inquiry team thanked the EIB’s representatives for their time and for the explanations provided, and the meeting ended.

Brussels, 28 February 2023

Jennifer KING                                                                                                   Oana MARIN

Legal Expert                                                                                                   Inquiries Officer

 

[1] Information about the project has in the meantime been made available at: https://www.eib.org/en/projects/pipelines/all/20220251 

[2] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[3] https://www.eib.org/attachments/strategies/eib_group_transparency_policy_2021_en.pdf

[4] 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