(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

On 26 July 2004, the complainant, a journalist working for the Stern, a German weekly newspaper, asked the European Commission for access to a document with the reference SEC(95) 447, which the latter's (then) Directorate-General ("DG") XV had prepared in 1995 with a view to possible infringement proceedings against Greece, in relation to the construction of a new airport in Spata.

On 10 September 2004, the Commission rejected this request on the basis of Article 4(3), second subparagraph, of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(2) ("Regulation 1049/2001").

In his confirmatory application of 20 September 2004, the complainant queried this decision, pointing out that the document was nearly ten years old and that its disclosure could therefore hardly undermine the Commission's decision-making process. He also submitted that there was an overriding public interest in disclosure. In this context, the complainant stressed (i) that the Stern was the second-largest weekly newspaper in Germany and Europe and had a very good reputation on account of its critical and well-informed coverage of EU matters; (ii) that there was a substantial public interest in the provision of EU funds for the relevant project; (iii) that possible irregularities concerning this project had already been the subject of articles in major newspapers such as the Frankfurter Allgemeine Zeitung (30 March 1995) and the Sunday Telegraph (14 March 2004); and (iv) that several MEPs had addressed written questions to the Commission on the subject.

In its decision of 11 November 2004, the Commission maintained its position and informed the complainant that no partial access could be granted either.

In his complaint to the Ombudsman, the complainant reiterated the arguments he had already submitted to the Commission. He added that an additional reason for his belief that there was an overriding public interest in disclosure was provided by recent articles in the press, in particular the one published in the Sunday Telegraph on 24 April 2005, according to which the person who had recently invited the President of the Commission for a cruise owned a company that had participated in the project to construct a new airport in Spata. The complainant suggested that the real reason why the Commission did not wish to disclose the relevant document was that it contained a convincing case for opening infringement proceedings against Greece and that the Commission had declined to follow this advice. According to the complainant, it was thus not the preparatory work carried out by the Commission's civil servants that might be affected by the disclosure of the document but the decision of the Commission, which appeared to be based on weak reasons and which had possibly been guided by political considerations.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The construction of the " New Athens International Airport at Spata" had been partly financed by the EU, with the maximum amount of assistance having been fixed at EUR 250 million. After a tender procedure that had been launched in 1991 by the Greek state and renegotiated in 1994, the project had finally been awarded to a consortium of companies that concluded an agreement with the Greek state in July 1995. The Commission's services had considered whether or not to open infringement procedures against Greece as regards the modified call for tenders. At its meeting of 29 March 1995, the College of Commissioners had decided not to open infringement proceedings against Greece.

In July 2004, the complainant had asked for access to the preparatory documents of this meeting, that is to say an excerpt from the database (the so-called "fiche NIF") and a more detailed explanatory note drafted by DG XV for the same purpose. Both these documents were internal documents and bore the reference SEC(95) 447.

The complainant's application had been rejected on the following grounds:

The relevant document had been drawn up within the Commission specifically for the investigation of a complaint and in preparation of the Commission's decision. It contained findings, assessments and opinions of the Commission's services and reflected the debate between them. These elements were essential for the collective deliberation by the College of Commissioners as had been stated by the Court of Justice in its judgment in Case C-191/95 Commission v Germany(3). Disclosing the preparatory documents for the decision of the College of Commissioners of 29 March 1995 would seriously undermine the exercise of the Commission's powers under Article 226 of the EC Treaty. According to this provision, the Commission has a discretionary power as to whether or not to initiate infringement proceedings against a Member State. The deliberations within the College of Commissioners that precede such a decision might therefore also comprise differing views.

Thus the Commission's services should be free to submit advice and opinions to their authorities. Their capacity to express their views would be curtailed if, when drafting documents such as the above-mentioned, they would have to take into account the possibility that their opinions and assessment could be disclosed to the public, even after the case had been closed. The protection of this 'space to think' was fundamental in safeguarding the Commission's decision-making process, which would be seriously undermined if the institution could no longer rely on the full and frank advice of its services.

The decision to deny access to the two documents identified by reference number SEC(95) 447 had been based on a careful examination of their content. In this context, the Commission referred to its guidelines of 28 February 2003 on public access to documents related to infringement proceedings, a copy of which it attached. According to these guidelines, documents relating to infringement proceedings are to be released once the case has been closed, since the need to protect the investigation no longer exists, unless another specific exception to the right of access prevents disclosure. According to the Commission, these exceptions were applied in a restrictive manner, on a case-by-case assessment. In the Commission's view, in this particular case disclosure of the requested documents would seriously affect the Commission's ability effectively to exercise its powers under Articles 226 and 228 of the EC Treaty.

Consequently, the exception laid down in Article 4(3), second subparagraph, of Regulation 1049/2001 was applicable.

The fact that the decision had been taken ten years ago did not change the result of this assessment. Audits carried out by the Commission's services with regard to the construction of the Spata airport were still ongoing. Thus, the case was far from being closed and might have implications for future decision-making.

No partial access could be granted, since there were no non-sensitive parts of the relevant documents that could be disclosed.

Critical reporting about alleged defects in public procurement constituted a public interest. However, the complainant had not shown that this interest outweighed the need to safeguard the Commission's decision-making process. The article published on 24 April 2005 could not be taken into consideration, since it had been published after the decision challenged by the complainant.

The Commission therefore considered that its refusal to grant access was justified under the provisions of Regulation 1049/2001.

The complainants’ observations

No observations were received from the complainant.

Further inquiries

After careful consideration of the Commission's opinion, it appeared that further inquiries were necessary.

The Ombudsman's request for further information

On 18 October 2005, the Ombudsman asked the Commission to provide further information as regards the "ongoing audits" and as to why they should stand in the way of disclosing the relevant document to the complainant. The Ombudsman noted that if the Commission were to consider that replying to this question would imply disclosing information that it regards as being confidential, he would consider it necessary to inspect the documents containing this information.

The Ombudsman also asked the Commission to comment on the arguments on which the complainant had relied in order to support his view that there was an overriding public interest in disclosure. These arguments were (i) that the Stern was the second-largest weekly newspaper in Germany and Europe and had a very good reputation on account of its critical and well-informed coverage of EU internal matters; (ii) that there was a substantial public interest in the provision of EU funds for the relevant project; (iii) that possible irregularities concerning this project had already been the subject of articles in major newspapers such as the Frankfurter Allgemeine Zeitung (30 March 1995) and the Sunday Telegraph (14 March 2004); and (iv) that several MEPs had addressed written questions to the Commission on the subject.

The Commission's reply

In its reply, the Commission made the following comments:

The Commission's decision to refuse access to the relevant document had been based on Article 4(3), second subparagraph, of Regulation 1049/2001. Article 4(2), third indent (which relates to the protection of the purpose of inspections, investigations and audits) had not been invoked by the Commission. The reference to an ongoing audit had been introduced in the opinion on the complaint as a subsidiary argument which had not been relied on by the Commission when it adopted the contested decision.

The relevant audit had now been completed. It was closed by a financial correction decision of 1 September 2005. The audit, which had been launched in 2003, aimed at establishing the construction costs of the airport, at examining whether they were reasonable and whether the construction of the airport had been completed in accordance with the Commission decision granting financial support, and at evaluating the real income of the airport in relation to the one that had been forecast. The financial correction decision had been challenged by Greece before the Court of First Instance (Case T-404/05).

There was also a case pending before the Court of First Instance in which a Commission decision refusing access to documents relating to the construction of Spata airport (Case T-380/04) was challenged. Although the documents concerned in that case were not identical to those at issue in the present complaint, they were related to the same circumstances.

Having re-examined the requested document against this new situation, the Commission had come to the conclusion that the completion of the audit did not change its earlier assessment that disclosure would seriously undermine the decision-making process. Indeed, future decision-making on similar cases might seriously be affected by disclosure of the requested document, since it would make public the deliberations between the Commission's services and the advice given by them to the College of Commissioners. By disclosing the requested document, which reflected in particular the position of one of the Commission's services, the principle of collegiality would be adversely affected, as the decision to initiate or to close infringement proceedings was taken by the College of the Commissioners on the basis of all the information necessary for the said decision. Disclosure would thus hamper the capacity of the Commission's services to give frank and full advice and expose the Commission and its services to undue pressure when considering future cases where the Commission considers bringing infringement proceedings. It should be recalled that the Commission had discretionary power to take such decisions.

As regards the existence of an overriding public interest, the Ombudsman had found, in his decision on complaint 412/2003/GG, that this element had to be established by the person seeking access. The fact that the complainant worked for the Stern certainly demonstrated a public interest, but did not amount to an overriding public interest. The complainant had not substantiated how far "critical reporting" implied a public interest that went beyond the general public interest in access to documents.

The same held true as regards the submission that there was a substantial public interest in the attribution of financial means from the EU structural funds to the relevant project. The other points mentioned by the complainant, such as the newspaper article of 1995 and the parliamentary questions (neither of which had been substantiated), were supposed to demonstrate public interest in the sound administration of EU funds. However, it had to be shown that this interest outweighed the public interest in protecting the Commission's decision-making process.

The complainant's observations

In his observations, the complainant maintained his complaint. He pointed out that the Commission itself had noted that, in accordance with its own guidelines, documents concerning infringement proceedings could be released once the relevant case had been closed. Given that the infringement proceedings had already been closed in 1995, access could therefore be granted. The complainant noted that in its opinion, the Commission had referred to "ongoing audits". He stressed, however, that these had now been terminated.

The complainant further argued that the public interest in disclosure was overriding also since there was reason to assume that the College of Commissioners had not followed the advice that it had been given. There was thus reason to suspect that the decision had been abusive or at least poorly reasoned.

The complainant argued that the Commission had not addressed the Ombudsman's request to inspect documents and asked the Ombudsman to insist on this request.

THE DECISION

1 Alleged failure properly to deal with request for access to document

1.1 The complainant, a German journalist, asked the European Commission for access to a document with the reference SEC(95) 447, which the latter's (then) Directorate-General ("DG") XV had prepared in 1995 with a view to possible infringement proceedings against Greece, in relation to the construction of a new airport in Spata. This document consists of two parts, a so-called "fiche NIF" and an explanatory memorandum of DG XV. On 10 September 2004, the Commission rejected this request on the basis of Article 4(3), second subparagraph, of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(4) ("Regulation 1049/2001").

In his confirmatory application, the complainant pointed out that the document was nearly ten years old and that its disclosure could therefore hardly undermine the Commission's decision-making process. He also submitted that there was an overriding public interest in disclosure. In this context, the complainant stressed (i) that the Stern, for which he worked, was the second-largest weekly newspaper in Germany and Europe and had a very good reputation on account of its critical and well-informed coverage of EU matters; (ii) that there was a substantial public interest in the provision of EU funds for the relevant project; (iii) that possible irregularities concerning this project had already been the subject of articles in major newspapers such as the Frankfurter Allgemeine Zeitung (30 March 1995) and the Sunday Telegraph (14 March 2004); and (iv) that several MEPs had addressed written questions to the Commission on the subject.

In its decision of 11 November 2004, the Commission maintained its position and informed the complainant that no partial access could be granted either.

1.2 In his complaint to the Ombudsman, the complainant alleged that the Commission had failed properly to deal with his request for access.

1.3 In its opinion, the Commission explained that the construction of the " New Athens International Airport at Spata" had been partly financed by the EU. After a tender procedure, which had been launched in 1991 and renegotiated in 1994, the project had finally been awarded to a consortium of companies that concluded an agreement with the Greek state in July 1995. The Commission's services had considered whether or not to open infringement procedures against Greece as regards the modified call for tenders. At its meeting of 29 March 1995, the College of Commissioners had decided not to open infringement proceedings against Greece.

The Commission noted that, in its decision on the confirmatory application for access, it had provided the following explanations: The relevant document contained findings, assessments and opinions of the Commission's services and reflected the debate between them. These elements were essential for the collective deliberation by the College of Commissioners as had been stated by the Court of Justice in its judgment in Case C-191/95(5). Disclosing the preparatory documents for the decision of the College of 29 March 1995 would seriously undermine the exercise of the Commission's powers under Article 226 of the EC Treaty. According to this provision, the Commission has a discretionary power as to whether or not to initiate infringement proceedings against a Member State. The deliberations within the College of Commissioners that precede such a decision might therefore also comprise differing views. Thus the Commission's services should be free to submit advice and opinions to their authorities. Their capacity to express their views would be curtailed if, when drafting documents such as the above-mentioned, they would have to take into account the possibility that their opinions and assessment could be disclosed to the public, even after the case had been closed. The protection of this 'space to think' was fundamental in safeguarding the Commission's decision-making process, which would be seriously undermined if the institution could no longer rely on the full and frank advice of its services.

The Commission further referred to its guidelines of 28 February 2003 on public access to documents related to infringement proceedings, a copy of which it attached. According to these guidelines, documents relating to infringement proceedings are to be released once the case has been closed, since the need to protect the investigation no longer exists, unless another specific exception to the right of access prevents disclosure. According to the Commission, these exceptions were applied in a restrictive manner, on a case-by-case assessment. In the Commission's view, in this particular case the disclosure of the requested document would seriously affect the Commission's ability effectively to exercise its powers under Articles 226 and 228 of the EC Treaty.

The Commission added that the fact that the decision had been taken ten years ago did not change the result of this assessment. According to the Commission, audits with regard to the construction of the Spata airport were still ongoing. Thus, the case was far from being closed and might have implications for future decision-making.

The Commission also considered that no overriding public interest in disclosure had been established.

1.4 On 18 October 2005, the Ombudsman asked the Commission to provide further information as regards the "ongoing audits" and as to why they should stand in the way of disclosing the relevant document to the complainant. The Ombudsman noted that, if the Commission should consider that replying to this question were to imply disclosing information that it regards as being confidential, he would consider it necessary to inspect the documents containing this information. The Ombudsman also asked the Commission to comment on the specific arguments on which the complainant had relied in order to support his view that there was an overriding public interest in disclosure.

1.5 In its reply, the Commission clarified that its decision had been based on Article 4(3), second subparagraph, of Regulation 1049/2001 and not on Article 4(2), third indent (which relates to the protection of the purpose of inspections, investigations and audits). The Commission added that it had referred to an ongoing audit in the opinion on the complaint as a subsidiary argument which had not been relied on by it when it had adopted the contested decision. It added that the relevant audit had been closed by a financial correction decision on 1 September 2005.

The Commission pointed out that there was a case pending before the Court of First Instance in which a Commission decision refusing access to documents relating to the construction of Spata airport was challenged (Case T-380/04). It noted that, although the documents concerned in that case were not identical to those at issue in the present complaint, they were related to the same circumstances.

The Commission confirmed its view that the disclosure of the document concerned would seriously undermine its decision-making process, since it would make public the deliberations between the Commission's services and the advice given by them to the College of Commissioners. According to the Commission, disclosure of the requested document, which reflected in particular the position of one of its services, would adversely affect the principle of collegiality. Disclosure would thus hamper the capacity of the Commission's services to give frank and full advice and expose the Commission and its services to undue pressure when considering future cases where the Commission considers bringing infringement proceedings. The Commission stressed that it had discretionary power to take such decisions.

As regards the existence of an overriding public interest, the Commission pointed out that the Ombudsman had found, in his decision on complaint 412/2003/GG, that this element had to be established by the person seeking access. According to the Commission, the presence of such an overriding public interest had not been substantiated by the complainant. The Commission also submitted that the complainant had not substantiated his reference to the newspaper article of 1995 and the parliamentary questions.

1.6 I n his observations, the complainant maintained his complaint. He submitted that the public interest in disclosure was overriding also since there was reason to assume that the College of Commissioners had not followed the advice that it had been given. There was thus reason to suspect that the decision had been abusive or at least poorly reasoned. The complainant further argued that the Commission had not addressed the Ombudsman's request to inspect documents and asked the Ombudsman to insist on this request.

1.7 The Ombudsman notes that the Commission's refusal to grant the complainant access to the relevant document was exclusively based on Article 4(3), second subparagraph, of Regulation 1049/2001. According to this provision, "[a]ccess to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure." In the Ombudsman's view, it is thus clear that the institution needs to prove that the disclosure has or is most likely to have the negative effect mentioned in this provision.

1.8 Before examining this issue, the Ombudsman considers it necessary to address the Commission's reference to Case T-380/04(6). Article 195 of the EC Treaty provides that the Ombudsman shall conduct inquiries for which he finds grounds "except where the alleged facts are or have been the subject of legal proceedings". However, it emerges from the summary of the case published in the Official Journal that this application concerns the Commission's refusal to grant access to "the main contract, the sub-contracts, the costs of the construction items, the invoices and the final report relating to the construction of the Spata airport". It is thus clear that this application does not concern the facts that have been submitted to the Ombudsman in the present complaint. The case pending before the Court of First Instance consequently does not affect the Ombudsman's power to deal with this complaint.

1.9 In its opinion, the Commission mentioned "ongoing audits" when referring to the risk that the disclosure of the relevant document would, in its view, entail for its decision-making process. Given that the relevance of these audit proceedings for the present case was not immediately obvious, the Ombudsman asked the Commission for further explanations. It emerges from the Commission's reply that the Commission did not intend to submit a further ground for rejecting the complainant's request for access to the relevant document. It would however be useful to note that the Ombudsman's inquiry is directed at examining whether there was maladministration as regards the Commission's decision of 11 November 2004 to reject the confirmatory application for access. Given that this decision was exclusively based on Article 4(3), second subparagraph, of Regulation 1049/2001, only this exception is relevant for the present inquiry.

1.10 The Ombudsman notes that the Commission has submitted a general argument to the effect that the disclosure of the relevant document would seriously undermine its decision-making process. It appears that the Commission assumes that the disclosure of such documents would jeopardise the capacity of its services to give frank and full advice to the College of Commissioners and would also expose the Commission and its services to undue pressure when considering future cases where the Commission considers bringing infringement proceedings. However, if this general argument were to be accepted, Article 4(3), second subparagraph, of Regulation 1049/2001 would be deprived of its meaning. This provision clearly envisages that the disclosure of documents such as the one at issue in the present case is not only possible, but also obligatory unless the Commission proves that doing so would "seriously undermine" its decision-making process. The Ombudsman considers that a general reference to the perceived risks of disclosure for the internal decision-making process which is not backed up by any reasonable reference to the individual facts of the case is not sufficient to allow the conclusion that the exception laid down in Article 4(3), second subparagraph, of Regulation 1049/2001 applies. The only concrete reference that the Commission did make in the present inquiry was to the audit that was closed on 1 September 2005. However, the Commission has neither claimed nor explained how the disclosure of the relevant document could have affected its decision-making process as regards the said audit. Given that this audit is thus without relevance for the present case, there is no need for the Ombudsman to ask the Commission for access to the documents concerning the relevant inquiry(7).

1.11 The insufficiency of the Commission's reasoning becomes even more apparent if one considers that at the time of the decision on the confirmatory application for access, the relevant document was nearly ten years old. The Ombudsman finds it very difficult to understand how the disclosure of such an old document should be likely to undermine the Commission's decision-making process as regards future cases. It may be useful to note that none of the present members of the Commission was in office when the then Commission decided not to bring infringement proceedings against Greece in March 1995. There is therefore nothing to suggest that the disclosure of the relevant document would seriously undermine the Commission's decision-making process as regards future infringement cases.

1.12 In its opinion, the Commission referred to the decision of the Court of Justice in Case C-191/95(8). However, this judgment merely confirms that decisions to issue a reasoned opinion and decisions to bring an infringement action against a Member State must be the subject of collective deliberation by the College of Commissioners and that the information on which those decisions are based therefore have to be available to the members of the College(9). This judgment does therefore not concern the issue as to whether documents that are drawn up in order to prepare such decisions are accessible to the public.

1.13 The Ombudsman notes that the Commission has referred to the fact that it has a discretion as to whether to bring infringement proceedings against a Member State. This is certainly correct. However, the Commission has not explained how this fact could justify its decision in the present case which concerns a request for access to documents.

1.14 The Ombudsman therefore considers that the Commission has not established that the disclosure of the relevant document would seriously undermine its decision-making process.

1.15 In view of this conclusion, it is no longer necessary to examine whether there was also a public interest in disclosure that could have overridden the interest of protecting the Commission's decision-making process.

1.16 On the basis of these considerations, the Ombudsman comes to the conclusion that the Commission has failed to show that it is entitled to rely on Article 4(3) of Regulation 1049/2001 to justify refusing to disclose the document to which the complainant requested access.

2 Conclusion

In view of the above, the Ombudsman makes the following draft recommendation to the Commission, in accordance with Article 3(6) of his Statute:

The draft recommendation

The Commission should grant the complainant access to the document with the reference SEC(95) 447.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 15 September 2006. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 6 June 2006

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) OJ 2001 L 145, p. 43.

(3) Case C-191/95 Commission v Germany [1998] ECR I-5449.

(4) OJ 2001 L 145, p. 43.

(5) Case C-191/95 Commission v Germany [1998] ECR I-5449.

(6) Case T-380/04 Terezakis v Commission (cf. the summary published in OJ 2004 C 300, p. 46).

(7) It may be useful to note that the Ombudsman had informed the Commission, in his request for further information, that he would ask it for access to these documents in case the Commission were to consider that replying to the first question would imply disclosing information that it considered to be confidential. Given that the Commission answered the Ombudsman's question, there was in any event no longer any need for an inspection of the relevant documents.

(8) Case C-191/95 Commission v Germany [1998] ECR I-5449.

(9) Case C-191/95 Commission v Germany, cited above, paragraph 48.