Made in accordance with Article 3(5) of the Statute of the European Ombudsman[1]

The background to the complaint

1. On 20 August 2012, an Irish NGO (hereinafter 'the complainant') submitted a request for access to documents held by the Commission, under Regulation (EC) No 1049/2001[2] establishing the rules concerning public access to documents held by the European Parliament, the Council of the European Union or the European Commission ('Regulation 1049/2001').

2. The complainant requested access to i) documents and "all the environmental information" held by the Commission in relation to the following electricity projects: E149, E150, E151, E152, E153, E154, E156 and E291. These projects were included in the List of projects submitted to be considered as potential Projects of Common Interest in energy infrastructure on which the Commission launched a public consultation in June 2012. In addition, it requested access to ii) copies of the processes and procedures which will be used to evaluate the above projects; iii) details of the membership (including qualifications) of the team who will be evaluating the projects; iv) details of how the public consultation will be incorporated into the decision process e.g. weighting factors.

3. On 19 October 2012, having extended the deadline for reply by 15 working days[3], the Commission replied to the complainant's request for access. It partially disclosed the documents requested under i) to iii) above. As regards the documents requested under i) above, the Commission explained that it did not have in its possession, at that stage, other documents containing environmental information pertaining to the complainant's request.

4. On 24 October 2012, the complainant lodged a confirmatory application under Regulation 1049/2001, challenging whether the Commission had properly identified the documents containing environmental information relating to the electricity projects in question.

5. On 22 November 2012, the Commission extended the deadline for replying to the complainant's application[4]. On 12 December 2012, the Commission informed the complainant that it was not able to provide the reply within the extended deadline. The Commission apologised for the delay and stated that it was doing its utmost to send its final reply as soon as possible.

7. Having received no reply to his confirmatory application and thus, considering that there had been an implicit negative reply[5], on 23 January 2013, the complainant turned to the Ombudsman.

The subject matter of the inquiry

8. In its complaint, the complainant alleged that the Commission failed to deal with its request for access to documents in a timely manner.

9. In addition, it alleged that the Commission wrongly refused to grant it access to the documents and environmental information requested. In this respect, the complainant argued that the Commission had failed to identify the documents in its possession and which pertained to its request for access.

10. The complainant claimed that the Commission should give it access or provide adequate reasons for its failure to do so in a timely manner.

11. In the course of the Ombudsman's inquiry, the Commission identified further documents, which fell within the scope of the complainant's application. These documents are the questionnaires submitted to the Commission by the promoters of the projects E149, E150, E151, E152, E153, E154, E156 and E291 in the framework of the public consultation concerning the List of projects submitted to be considered as potential Projects of Common Interest in energy infrastructure. The Commission invited the complainant to submit a new (second) request for access to the above documents. The complainant did so. In its reply of 22 April 2013, the Commission granted it partial access to them. In its subsequent submission to the Ombudsman, the complainant limited the complaint to the above questionnaires. In its opinion the Commission referred to these questionnaires as well.

12. The Ombudsman's inquiry concerns therefore the Commission's handling of the complainant's request for access the above mentioned questionnaires submitted to the Commission by the promoters of the projects E149, E150, E151, E152, E153, E154, E156 and E291.

The inquiry

13. On 14 February 2013, the Ombudsman opened an inquiry and asked the Commission to submit an opinion on the complainant's allegations and claim by 30 April 2013.

14. On 6 March 2013, the Commission informed the Ombudsman that in the meantime, on 28 February 2013, it had replied to the complainant's confirmatory application.

15. On 27 March 2013, in accordance with Article 3(2) of the Ombudsman's Statute[6], the Ombudsman's services carried out an inspection of the relevant documents in the Commission's file. The Commission considered the inspected documents to be confidential[7]. Article 4(1) of the European Ombudsman's Statute sets out that the Ombudsman and his staff "shall be required not to divulge information or documents which they obtain in the course of their inquiries". Article 13.3 of the Ombudsman’s Implementing Provisions prevents complainants from having access to documents which have been identified to the Ombudsman as confidential. Therefore, the Ombudsman cannot disclose or quote from documents which the institution considers to be confidential, or refer to them in such a way that their content might be disclosed.

16. A copy of the inspection report was forwarded to the complainant with an invitation to submit observations. The complainant did so on 1 April 2013.

17. On 29 April 2013, the complainant sent a further letter relating to its complaint.

18. On 30 May 2013, the Commission sent its opinion, which was sent to the complainant with an invitation to submit observations. The complainant sent his observations on 21 July 2013.

The Ombudsman's analysis and provisional conclusions

Preliminary remark

19. The complainant's allegation that the Commission failed to handle the complainant's request for access in a timely manner, is an issue which is not dealt with in the present friendly solution proposal, and the Ombudsman will take a stance on it at a later stage of her inquiry

A. Alleged failure to grant access to the requested documents and related claim

Arguments presented to the Ombudsman

20. In its original complaint, the complainant argued that according to the information published by the Irish authorities, the Commission was in possession of the environmental information to which the complainant requested access on 20 August 2012. The Commission has thus deliberately withheld environmental information and prevented citizens from effectively participating in the public consultation process. Moreover, by failing to disseminate to the public the requested environmental information, the Commission breached the provisions of Article 1 of Regulation (EC) No 1367/2006 on the application to Community institutions and bodies of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ('Aarhus Regulation')[8].

21. In its opinion, the Commission recalled that, in its reply to the complainant's confirmatory application of 28 February 2013, it pointed out that it had checked carefully what kind of information was available with regard to the said projects. The Commission concluded that at that stage it did not hold environmental information pertaining to these projects. It further clarified that, so far, it had received information about the projects on the basis of a questionnaire submitted by promoters which it had prepared. According to the Commission, the question from the questionnaire coming closest to the definition of environmental information appeared to be the one pertaining to the project sustainability. This question was answered by a few very general sentences for every project. The Commission provided the complainant with a blank copy of this project questionnaire.

22. The Commission also informed the complainant that it could request access to the questionnaires completed by project promoters and that this request would be handled as a fresh application for access, for which a consultation of the third parties concerned would be required. Subsequently, on 5 March 2013 the complainant requested access to the above questionnaires. The Commission handled this application for access by contacting all relevant project promoters to enquire which information from the projects questionnaires could be disclosed. On 22 April 2013, the Commission replied to the complainant's new request for access and granted partial access to the questionnaires submitted to the Commission by the promoters of the projects E149, E150, E151, E152, E153, E154, E156 and E291. The parts of the questionnaires containing commercially sensitive information and personal data were redacted.

23. The Commission outlined that it had no intention whatsoever to deliberately withhold environmental information from citizens and to prevent them from participating in public consultations. Moreover, the Commission was unable to provide the complainant with any environmental information as it did not hold, at the time, such information. However, in the future, if any of these projects were to be implemented, consultations will be carried out by the project promoters, at the project level, in accordance with the EU and national legislation[9]. At that point in time, an environmental assessment will be conducted and environmental information and reports will be available. Access could then be requested in accordance with Regulation 1049/2001.

24. In its opinion, the Commission also explained which steps it had undertaken so far in order to ensure the transparency of the above process. It stated in summary that the project questionnaires were published on the Commission's website and public consultation took place; that it organised an Information day in which relevant stakeholders, NGOs and citizens could ask questions about the process for identifying projects of common interest and on the list of submitted projects.

25. The Commission further explained that, according to the draft Regulation on guidelines for trans-European energy infrastructure[10], within six months after the date of adoption of the first Union list of projects of common interest, it should establish an infrastructure transparency platform easily accessible to the general public, including via the internet[11].

26. Finally, on 13 and 15 March 2013 , the Commission (by e-mail) offered to meet the complainant in Brussels or, alternatively, to organise a meeting via video conference in the Commission's Representation in Ireland. Such a meeting would be helpful in order to be able to provide the complainant with further explanations, if needed, and to address its questions and concerns. The complainant declined the Commission's invitation[12]. The Commission reiterated in the opinion its invitation to meet the complainant either in Brussels or organise a meeting via video conference in the Commission's Representation in Ireland.

27. In further correspondence addressed to the Commission[13], on 28 April 2013, that is before the Commission sent to the Ombudsman the opinion on the present inquiry, the complainant took the view that the questionnaires provided by the Commission on 22 April 2012, although partially redacted, do contain environmental information and thus the Aarhus Regulation applies. In the complainant's view, the Commission did not properly justify its decision to grant partial access to the questionnaires. In this respect, Article 6(1) of Aarhus Regulation provides that the grounds for refusal set out in Article 4(2) of Regulation 1049/2001 (that is to say, including the exception concerning the protection of commercial interests) must be interpreted in a restrictive way taking into account the public interest served by disclosure and whether the information related to emissions into the environment. This view is supported both by the guidelines for the implementation of the Aarhus Convention[14] and the reports of the Compliance Committee[15]. According to the complainant's letter of 28 April 2013, the Commission, in its decision granting partial disclosure, failed to deal with these restrictions on the operation of the exception

28. In its observations of 21 July 2013, the complainant reiterated these arguments. The complainant further pointed out that the questionnaires contain more environmental information than the issues pertaining to the sustainability of the projects. It recalled that Article 2(d) of Aarhus Regulation provides for a broad definition of environmental information. Accordingly, "what was to be built, where it was to be built, what was the purpose of it and what was the cost of it, all fall within the definition of environmental information". Consequently, most of the elements included in the questionnaires could be classified as environmental information, including those elements which were redacted by the Commission, such as the costs of the project entitled Natural Hydro Energy (which is one of the projects included on the List of projects submitted to be considered as potential Projects of Common Interest in energy infrastructure) and access should have been given at the time of its first request.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

29. The complainant challenges the Commission’s reliance on the exception concerning the protection of commercial interests (Article 4(2), first indent of that Regulation). Furthermore, the complainant considers that the parts of the questionnaires which were redacted constitute environmental information in the sense of Regulation 1367/2006 and therefore, the above exception should apply restrictively.

30. Having inspected the documents, the Ombudsman accepts that, the redacted paragraphs refer to data which might reasonably be considered to concern commercially sensitive i n the context of Article 4(2), first indent, of Regulation 1049/2001.

31. However, the mere fact that a document concerns an interest protected by an exception cannot, by itself, justify the application of that exception[16]. Such application is justified only if the institution has previously determined that access to the document would specifically and actually undermine the protected interest. As the Court has held[17], if all information relating to a company and its business relations were regarded as being covered by the protection given to commercial interests in accordance with Article 4(2), first indent, of Regulation No 1049/2001, effect would not be given to the general principle of giving the public the widest possible access to documents held by the institutions.

32. The Ombudsman has inspected the documents in question and has considered carefully the information which the Commission has redacted. She considers that the Commission has failed to show how business secrets of the undertakings concerned were endangered by the disclosure of each piece of the redacted information.

33. The Ombudsman notes that the data relating to the following categories were redacted: (i) share capital of the undertakings; (ii) estimated project costs; (iii) equipment pricing (iv) financial modelling; (v) economics of renewable generation in the EU; (vi) impact on energy system-wide generation and transmission costs (vii) market integration and competition, (viii) security of supply etc.

34. The Ombudsman takes the view that, in all likelihood, some relevant categories of information (such the share capital of the undertakings) are already in the public domain by way, for example, of public business registers held in many Member States.

35. The Ombudsman further notes in this respect that the Commission asked the providers of the information whether they agree with the disclosure, pursuant to Article 4(4) of Regulation 1049/2001. This means that it was not entirely clear to the Commission whether the redacted paragraphs should or should not be disclosed.

36. Moreover, the Ombudsman points out that the Commission cannot blindly follow the view of the providers of the information as to whether a particular exception is applicable, but it needs to make its own assessment.

37. Finally, the Ombudsman notes that, in at least two questionnaires, the providers of the same kind of information agreed to the disclosure. This fact alone required from the Commission an extremely careful assessment of the reasons invoked by other providers of the same category of data as to why the latter could not be disclosed. The evidence available does not show that the Commission carried out such assessment in the present case.

38. On the top of that, from the evidence available, it is not possible to establish whether the Commission carried out the public interest test. Neither is the Ombudsman entirely convinced by the Commission’s conclusion that the redacted material does not constitute "environmental information" in the sense of the Aarhus Convention. For example, the estimated costs of the projects might, if approved, have an impact on the environment and thus could constitute “environmental information”.

39. In light of the above, the Ombudsman provisionally considers that the Commission has provided insufficient justification for its decision to withhold full access to the questionnaires in question. This could be an instance of instance of maladministration.

40. When the Ombudsman makes a finding of maladministration, her Statute requires her to seek, as far as possible, a friendly solution to eliminate the maladministration, and simultaneously satisfy the complainant. The Ombudsman's corresponding proposal for a friendly solution, which is set out below and made in accordance with Article 3(5) of the Statute of the European Ombudsman, is thus based on the above considerations.

B. The proposal for a friendly solution

Taking into account the Ombudsman's findings, the Commission could grant full access to the questionnaires by disclosing the redacted paragraphs.

Emily O'Reilly

Done in Strasbourg on 22 January 2014

 

[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] OJ 2001 L 145, p. 43.

[3] In accordance with the provisions of Article 7(2) of Regulation 1049/2001.

[4] in accordance with Article 8(2) of Regulation 1049/2001

[5] According to Article 8(3) of Regulation 1049/2001, "Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty."

[6] Article 3(2) of the Ombudsman's Statute reads as follows: "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned."

[7] The documents inspected were the following: 1. The Commission's reply to the complainant's confirmatory application, dated 28 February 2013; 2. Exchange of e-mails between the Commission and a third party concerning the public consultation on the List of projects submitted to be considered as potential Projects of Common Interest in energy infrastructure, dated 24 August 2012; 3. Questionnaire for the project entitled Greenwire Interconnector; 4. Questionnaire for the project entitled CAES Larne NI; 5. Questionnaire for the project entitled ISLES; 6. Questionnaire for the project entitled Ireland-Great Britain Interconnector; 7. Questionnaire for the project entitled Grid Link ; 8. Questionnaire for the project entitled MAREX; 9. 2 questionnaires for the project entitled Natural Hydro Energy Ireland; 10.Questionnaire for the project entitled Renewable Integration Development Project; 11. Questionnaire for the project entitled North South 400kV Interconnection Development.

[8] OJ L 264, p. 13, 25.09.2006.

[9] The Commission referred to : a) Directive 2001/42/EC of the European Parliament and the Council of 27 June 20001 on the assessment of the effects of certain plans and programmes on the environment (SEA Directive); ii) Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment ( EIA Directive) and iii) The United Nations Economic Commission for Europe (UNECE), Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).

[10] Draft Regulation on "Guidelines for trans-European energy infrastructure" [COM/2011/658].

[11] This platform shall contain the following information: (a) general, updated information, including geographic information, for each project of common interest; (b) the implementation plan as set out in Article 5(1) for each PCI; (c) the main results of the cost-benefit analysis on the basis of the methodology drawn up pursuant Article 11 for the PCIs concerned, except for any commercially sensitive information; (d) the Union list; (e) the funds allocated and disbursed by the Union for each PCI.

[12] The Commission enclosed copies of its correspondence with the complainant on the matter.

[13] The complainant forwarded a copy of this correspondence to the Ombudsman.

[14] “Aarhus Convention: An Implementation Guide", prepared by UNECE and available at http://www.unece.org/fileadmin/DAM/env/pp/acig.pdf.

[15] Report of the Compliance Committee to the UNECE Aarhus Convention ECE/MP.PP/2011/11 of 12. May 2011. "In this context, the question of confidentiality of information has been raised (see also ECE/MP.PP/2008/5, para. 55) with regard to “commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest” (art. 4, para. 4 (d) of the Convention). The Committee points out that this exemption may not be read as meaning that public authorities are only required to release environmental information where no harm to the interests concerned is identified. The exemptions of the Convention under article 4, paragraph 4, are to be interpreted in a restrictive way, taking into account the public interest served by disclosure. Thus, in situations where there is a significant public interest in disclosure of certain environmental information and a relatively small amount of harm to the interests involved, the Convention would require disclosure.

(ACCC/C/2007/21 (European Community), para. 30 (c)). "

[16] Case T-20/99 Denkavit Nederland v Commission [2000] ECR II-3011, paragraph 45.

[17] See Case T-380/04, Terezakis v. Commission, paragraph 93, [2008] ECR-II-11.