Date: Wednesday, 08 May 2024

Online (Webex) and at the Ombudsman premises

Present

European Commission

One representative from the Ethics, Good Administration & Relations with the European Ombudsman Unit, Secretariat-General

Two representatives from the Transparency, Document Management and Access to Documents Unit, Secretariat-General

One representative from the Commission’s Legal Service

European Ombudsman

Paulien Van de Velde-Van Rumst, Inquiries Officer

Michaela Gehring, Inquiries Officer

Tereza Mandjukova, Inquiries Officer

Peter Dyrberg, Inquiries and Process Expert

Ella de Jonge, Inquiries Trainee

Background

The case concerns the Commission’s refusal to grant public access to a table containing an overview of EU case-law related to public access to documents. The complainant submitted a public access request to any documents related to case-law on Regulation 1049/2001 and any templates for replies to public access to document requests. The Commission identified forty-three documents within the scope of the complainant’s request, and granted wide access to all but the case-law table in question, invoking three exceptions under the EU legislation on access to documents. The Commission argued that disclosure of the document could undermine the protection of legal advice, the protection of court proceedings, as well as the institution’s decision-making process.[1]

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to obtain further clarifications on why the Commission refused to grant access to the table containing an overview of EU case-law related to public access to documents.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the Commission 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 Commission as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Commission’s prior consent.^[2]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the Commission 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

At the outset of the meeting, the Commission representatives explained that the document, a useful toolbox for its staff, is not considered an official document or guideline, and is not in the public domain.

Regarding the application of the legal advice exception

The Ombudsman inquiry team referred to recent EU case-law, according to which a document containing legal advice is not considered sensitive if it consists of legal assessments that have no originality and do not contain sensitive information or confidential facts.[3] The inquiry team therefore asked the Commission for concrete examples of sensitive legal advice contained in the document, to which no access could be granted without undermining the Commission’s ability to receive frank, objective, and comprehensive advice.

The Commission representatives stated that EU case-law provides for three criteria to be met for the exception relating to the protection of legal advice to apply: the document must relate to legal advice; its disclosure must be harmful to the institution’s interest in seeking frank, objective, and comprehensive legal advice; and there must be no overriding public interest in disclosure. Although the document at issue is of an informal and general nature, the Commission representatives said that it is clear from its content that it constitutes legal advice. In order to protect the institution’s interest; any disclosure would necessarily require a redrafting of the case-law overview. The prospect of disclosure would ultimately result in a selection bias, with only positions in favour of the institution being included, thereby obstructing the institution’s aim in seeking frank, objective, and comprehensive legal advice. As a result, the Commission would not have a full overview of the case-law which the Commission needs to have in order to perform a comprehensive assessment of the legal risks arising from each draft decision.

Furthermore, the Commission representatives argued that the originality criterion referred to by the inquiry team only applies to legislative documents, whereas the document in question is of an administrative nature. In any event, the originality of the legal assessment in the document lies in the selection of specific excerpts of the case-law, and their summary and interpretation, similar to case-law commentaries which are protected by copyright.

The Commission representatives then referred to specific examples of case-law included in the document which, despite being included in the document due to its usefulness for the Commission’s assessment, do not currently apply to its administrative practice. These examples are contained in a confidential annex to this meeting report. Disclosing the fact that these judgments are included in the Commission’s case-law overview could create expectations for citizens as to the Commission’s position on this case-law.

The Ombudsman inquiry team then mentioned that the Commission gave access to its templates, guidance notes and fiches on its interpretation of case-law, which sometimes reflect changes in the Commission’s practice of implementing Regulation 1049/2001 depending on the development of the Court’s jurisprudence.[4] Therefore, the inquiry team asked the Commission to explain why, concretely, the case-law table is to be considered more sensitive than these other documents.

The Commission representatives emphasised that templates, guidance notes and fiches differ from the document in question in nature and adoption procedure. Templates, guidance notes and fiches are official, administrative documents concerning settled matters[5], and are adopted by the hierarchy following an approval procedure. By way of contrast, the case-law table is an informal toolbox which is not submitted to the hierarchy, and may contradict positions adopted in future decisions which can be challenged in Court. The Commission representatives explained that, in the context of judicial proceedings, the document could be instrumentalised against the Commission.

Therefore, the Commission representatives said that public disclosure of the table could cause significant delays in including recent case-law developments in the table due to the administrative adoption procedure this would require. Furthermore, disclosure could also change the content of and case-law selection for the table.

Regarding the application of the exception for the institution’s decision-making process

The Ombudsman inquiry team noted that the case-law table already includes a disclaimer regarding the nature of the document. Despite the inclusion of this disclaimer, the Commission argued in its confirmatory decision that disclosure carries a risk of self-censorship and public confusion concerning the final position of the Commission. The inquiry team therefore asked the Commission representatives what would change in the Commission’s practice of handling the document if it were to be disclosed.

The Commission representatives explained that the case-law table is construed for trained professionals who have a background in processing public access to documents requests. The document highlights sensitive points established in EU law which should be taken into account by case handlers when drafting decisions. As mentioned before, disclosure could thus change the content of and case-law selection for the table.

Regarding the application of the exception relating to the protection of court proceedings

The Ombudsman inquiry team emphasised that the templates used for Commission decisions include similar quotations from the case-law. It also noted that the case-law itself is already available to citizens.

The Commission representatives clarified that the templates reflect the Commission’s official interpretation of established EU case-law, whereas the case-law table refers to sensitive points in the case-law, which should be placed in a broader context. The sensitive issues highlighted in the table could potentially be used against the Commission in Court.

The Commission representatives added a reference to recent EU case-law to highlight that access to a document can be refused under the court proceedings exception if it reveals an internal, non-validated position on a matter pending before the Court, even if it has not been drafted in the context of court proceedings.[6]

Regarding the possibility of granting partial access

In relation to the possibility of granting partial access, the Commission representatives said that partial access would be minimal and that the very limited information that it could consider disclosing, would not necessarily fall within the scope of the public access request of the complainant.

Regarding the public interest in disclosure

Finally, the Ombudsman inquiry team noted that the Ombudsman has published a guidance on public access to documents, as it considers this information to be useful to share with the public.

The Commission representatives stated that it provides access to confirmatory decisions concerning the Commission’s interpretation of case-law upon request. While the Commission understands that there is some interest in accessing the case-law table, it does not consider this interest to be overriding in favour of disclosure. They emphasised that the Commission is currently working to enable the proactive publication of confirmatory decisions in EASE to provide a broad overview of the Commission’s interpretation and application of EU case-law, and is considering implementing an Artificial Intelligence-based search tool to optimise the search functionality of the EASE Portal.

In addition, the Commission representatives considered that previous annual reports of the Commission – as well as the other forty-two documents disclosed pursuant to the applicant’s request – sufficiently disseminate the Commission’s interpretation of case-law to the public. Furthermore, citizens can consult the website of the Court of Justice of the EU to access case-law – as well as its official fact-sheets on the matter[7] – and the Commission is always available to reply to requests for information.

Conclusion of the meeting

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

 

Brussels, 8 May 2024

Peter Dyrberg                                                                                                 Paulien Van de Velde-Van Rumst

Inquiries and Process Expert                                                                            Inquiries Officer

 

[1] In accordance with Article 4(2), second indent and 4(3) of 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] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[3] Judgment of the General Court of 13 March 2024, ClientEarth v Council, joined Cases T-682/21 and T-683/21, paragraphs 59-62: https://curia.europa.eu/juris/liste.jsf?num=T-682/21&language=en.

[4] For instance, the Commission’s Fiche 3 on Access to draft impact assessment reports explains that the General Court recognised a general presumption of non-disclosure of documents preparing an impact assessment, which was subsequently set aside by the Court of Justice, meaning that the Commission can no longer apply the general presumption of non-disclosure in the context of an impact assessment. See: Judgment of the Court of 4 September 2018, ClientEarth v Commission, C-57/16 P: https://curia.europa.eu/juris/liste.jsf?num=C-57/16&language=en.

[5] For instance, the ClientEarth v Commission judgment as mentioned above settled the question on the existence of a general presumption of non-disclosure of documents preparing an impact assessment.

[6] 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.

[7] See https://curia.europa.eu/jcms/jcms/p1_1043150/en/.