Date: Wednesday, 08 May 2024

EO office

Present

European Commission

• Ilze Juhansone, Secretary-General
• Pascal Leardini, Deputy Secretary-General

European Ombudsman

• Emily O’Reilly, Ombudsman
• Rosita Hickey, Director of Inquiries
• Gundi Gadesmann, Head of Cabinet
• Markus Spoerer, Policy Adviser

Purpose of the meeting

The purpose of the meeting was to discuss two topics:

1. Follow up to the Ombudsman’s Special Report to Parliament concerning the Commission’s delays in providing public access to documents and evolution of the situation.

2. Commission’s engagement with Ombudsman’s recommendations and solution proposals. 

Content of the meeting

Presentation by the Ombudsman’s team

The Ombudsman welcomed the Commission representatives and emphasised the importance of engaging constructively on matters of mutual interest. Her team gave a short presentation of the issues.

Follow-up to the Special Report on public access delays

The Special Report on the Commission’s delays in dealing with requests for public access to documents had been unanimously endorsed by Parliament in March 2024. More than one year had passed since the Ombudsman made recommendations urging the Commission to address the problem of delays as a priority. The situation seems, however, to have deteriorated. The number of inquiries opened by the Ombudsman in delayed cases was five times higher in 2023 than in 2020. The Ombudsman opened 72 inquiries into Commission delays in access to documents cases in 2023, which amounts to almost one fifth of all inquiries.

There are currently 37 inquiries open concerning this issue, with almost half that have seen a delay of more than six months after the Commission’s legal deadline to issue a confirmatory decision expired. Many of these cases concern important matters of significant public interest (RRF, migration, border management).

Three examples were mentioned of inquiries in which the Commission’s confirmatory decision is more than 20 months delayed.

The Ombudsman and her team suggested that:

• The Commission should consider improving and streamlining its procedures to take confirmatory decisions concerning access to documents requests.
• The Commission should strive to find a better balance between legal and reputational risks and human resources spent in cases in which long delays occur.
• The Secretary-General be made aware of cases in which long delays occur.
• The political leadership of the Commission be made aware of this issue, including through briefings prepared for the upcoming mandate.

Compliance with Ombudsman’s findings

The Ombudsman addressed the need for Commission engagement with her recommendations and solution proposals.

In some cases, there seems to be a reluctance of the Commission to revisit the case following Ombudsman recommendations and solution proposals. The Ombudsman is a redress mechanism, generally and specifically under Regulation 1049/2001, and individuals turning to the Ombudsman expect that, following an Ombudsman’s inquiry, the Commission will be ready to modify its decisions.

The Ombudsman’s team presented three recent examples, in which Ombudsman’s findings had not been accepted by the Commission.

They suggested that the Commission adopt a more citizen-focused approach and that a culture change is needed whereby the point of departure is that the administration accepts the Ombudsman’s findings and works to implement them.

Discussion

The Commission representatives emphasised the good cooperation between the Ombudsman and the Commission, and confirmed the importance the Commission attaches to transparency and access to documents in general. They pointed that most of the 7274 initial requests received by the Commission in 2023 were answered within the deadlines.

Concerning delays, they noted that access to documents is an important issue for the Secretariat-General and for the Commission as a whole. There is a growing number of requests concerning large numbers of documents, leading to an increased workload. They also referred to transparency improvements made through the introduction of the EASE portal.

They further noted that confirmatory applications are made in less than 10% of all access to documents cases. It can be challenging to balance the different interests, particularly when the documents in question originate from or concern third parties.

The Commission representatives expressed their willingness to find ways to improve the situation. As a first step, they will review the cases currently with the Ombudsman, in which there is a long delay in issuing the confirmatory decision. It was agreed that the Ombudsman’s Office will provide the Secretary-General with a list of these cases (attached to this report).

Concerning compliance with Ombudsman’s findings, the Commission representatives confirmed that confirmatory decisions in access to documents cases are normally not overturned following an Ombudsman inquiry. This is because they are taken by the Secretary-General under delegation given by the College of Commissioners and are therefore a legal act that is subject to possible action before the European Court of Justice. According to the Commission’s representatives, these decisions cannot easily be overturned. The Ombudsman urged the Commission to find ways to enable the Ombudsman to fulfil its legal role under Regulation 1049/2001[1] and promised to follow up concretely on this matter.

Conclusion of the meeting

Both parties agreed that this meeting had been useful and that it would be useful to have regular meetings between the Ombudsman and the Commission’s Secretary-General.

Brussels, 8 May 2024

 

Annex

· List of public access cases with long delays

List of ongoing public access cases with long delays

State of play 14/05/2024

1.	380/2023/PVV	How the European Commission dealt with several requests for public access to documents concerning surveillance and security systems and equipment at migrant centres in Greece Statutory deadline expired on: 02/12/2022
2.	409/2023/OAM	The failure by the European Commission to take a final decision within the applicable time limit on a request for public access to documents concerning the Recovery and Resilience Plan of the Netherlands Statutory deadline expired on: 28/11/2022
3.	569/2023/NH	How the European Commission dealt with a request for public access to documents concerning maritime and sea border surveillance in Tunisia Statutory deadline expired on: 23/01/2023
4.	1018/2023/NH	The failure by the European Commission to take a final decision within the applicable time limit on a request for public access to documents concerning an EU funded project to improve migration management in Libya Statutory deadline expired on: 16/01/2023
5.	1037/2023/SF	The European Commission's failure to take a final decision within the applicable time limit on a request for public access to documents concerning contacts with encyclopaedia publishers Statutory deadline expired on: 22/06/2023
6.	1249/2023/ACB	The failure by the European Commission to take a final decision within the applicable time limit on a request for public access to documents concerning a project in Senegal funded under the EU Trust Fund for Africa Statutory deadline expired on: 06/07/2023
7.	1365/2023/OAM	The failure by the European Commission to take a final decision within the applicable time limit on two requests for public access to documents concerning the European Travel Information and Authorisation System (ETIAS) Statutory deadline expired on: 29/05/2023
8.	1847/2023/RVK	The failure by the European Commission to take a final decision within the applicable time limit on a request for public access to documents concerning relations with and EU funding for a non-governmental organisation that manages wildlife parks in Africa Statutory deadline expired on: 29/08/2023
9.	2249/2023/TM	How the European Commission dealt with a request for public access to documents concerning the EU-US Trade and Technology Council Statutory deadline expired on: 03/09/2023
10.	2272/2023/KT	The European Commission's failure to take a final decision within the applicable time limit on a request for public access to documents concerning infringement proceedings against Cyprus Statutory deadline expired on: 15/11/2023
11.	228/2024/NH	The European Commission’s refusal to give public access to minutes of meetings of the Network and Information Systems Cooperation Group Statutory deadline expired on: 30/11/2023
12.	346/2024/KRW	How the European Commission dealt with a request for public access to a letter from a Member State that it consulted on a request for public access to documents Statutory deadline expired on: 12/12/2023
13.	363/2024/ACB	How the European Commission handled a request for public access to documents concerning the meeting of its President, the Italian and Dutch Prime Ministers, and the President of Tunisia on 11 June 2023 Statutory deadline expired on: 08/12/2023
14.	413/2024/FA & 528/2024/FA	How the European Commission conducted a public consultation concerning wolves in the EU and how it dealt with a subsequent request for public access to documents Statutory deadline expired in December 2023

 

[1] By way of example: in case 1999/2022/SF, the Commission adopted a confirmatory decision granting partial access to the five documents at issue in the confirmatory decision. The Ombudsman made a solution proposal concerning three of the five documents (the other two documents had only personal data redacted and the Commission's refusal was justified).

Following our solution proposal, the Commission granted wider access to two of the three documents and provided additional information concerning the remaining document. The Commission published the documents on EASE.

In its reply to the Ombudsman’s solution proposal the Commission concluded: "The European Commission has reviewed once more documents 13b and 13c on the basis of the criteria set out above. Based on a careful examination of all interests at stake, and in particular the proposal for a solution by the European Ombudsman and the meeting of 4 May 2023, the European Commission hereby grants wider access to those documents. It attaches the revised redacted versions of the documents in question, which will also be published on the Electronic Access to Commission Documents (EASE) portal. [...]"