Background to the complaint

1. In March 2023, the complainant made three requests for public access[1] to documents concerning legal advice related to three Commission proposals[2] for EU law. In its initial reply, the Commission identified nine documents as falling within the scope of the complainant’s three requests. It granted full access to two documents and partial access to the remaining seven documents.

2. Dissatisfied with this outcome, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’). In particular, the complainant found the low number of documents that had been identified astonishing. She sought to clarify her requests and stated that she was interested in documents that related to the “Commission analyses on the applicable legal bases”.

3. In its confirmatory decision, the Commission informed the complainant that the scope of review of an initial reply is restricted to the scope of the initial application and cannot be extended at confirmatory stage. As the complainant’s request explicitly referred to any legal advice on the three legislative proposals, the Commission’s searches “concerned only such legal opinions”. The Commission invited the complainant to submit a new request for public access to documents specifying exactly the scope of her request.

4. In September 2023, the complainant made a new request for public access to the legal advice that the Commission legal service provided at the preparatory stage of the three legislative proposals. In its initial reply, the Commission informed the complainant that it could not identify any documents that would fall within the scope of her request.

5. The complainant made another confirmatory application. She considered it implausible that the Commission had not identified any documents.

6. When the Commission failed to reply, the complainant turned to the Ombudsman in December 2023. In particular, the complainant argued that comments in the documents that the Commission disclosed following her previous three public access requests indicated that the legal service had provided additional comments in separate emails and/or other documents. She considered that the Commission should have identified these documents as falling within the scope of her request.

The Inquiry

7. The Ombudsman opened an inquiry into the Commission’s failure to identify documents and to reply to the complainant’s public access request. While there is a general presumption that statements made by EU institutions about the non-existence or non-possession of documents are accurate[3], this presumption can be rebutted. The Ombudsman considered that the complainant put forward credible arguments to suggest that there may be additional documents that fall within the scope of her public access request and that have not been identified.

8. As a first step, the Ombudsman considered that it would be helpful to schedule a meeting with Commission representatives and the Ombudsman inquiry team to clarify how and where the Commission searched for the requested documents. In addition, the Ombudsman urged the Commission to reply to the complainant’s confirmatory application.

9. Before the meeting could take place, the Commission informed the Ombudsman that a renewed search for documents at confirmatory stage would likely lead to the identification of documents falling within the scope of the complainant’s request. However, as the assessment of these documents was still ongoing, the Commission had not yet formally identified these documents.

10. Given the ongoing delay in handling the complainant’s public access request, the Ombudsman asked to inspect the documents that the Commission had provisionally identified.

11. In February 2024, the Commission shared with the Ombudsman 13 documents that it had provisionally identified as falling within the scope of the complainant’s request. The Ombudsman inquiry team inspected them. The inspection showed that most of the 13 documents pertain to legal advice.

The Ombudsman’s proposal for a solution

12. In the absence of a reply to the complainant’s confirmatory application and given that the complainant had initially requested access to the documents in March 2023, the Ombudsman wrote to the Commission to seek a solution in this case in March 2024. As the Commission had not identified any documents at the initial stage and had not yet adopted an explicit reply at confirmatory stage, the Ombudsman had to base her proposal for a solution on an incomplete file.

13. The Ombudsman noted that the case-law of the Court of Justice of the European Union in this area is clear and that there is, in principle, an obligation to disclose the advice of an institution’s legal service relating to a legislative proposal.[4] An institution can refuse disclosure of such documents only where the legal advice concerned is of a particularly sensitive nature or has a particularly wide scope that goes beyond the context of the legislative process in question.[5] Legal advice, which examines the legal basis of specific proposals, cannot be considered of itself to be ‘systemic’ beyond the context of the legislative process in question and, thus, particularly wide in scope.[6] The question whether legal advice is particularly sensitive depends on whether the content of that advice is particularly sensitive and not on whether the relevant legislative process and its context can be regarded as sensitive.[7]

14. The Ombudsman further recalled that general references to the risk of undermining an institution’s ability to defend itself in hypothetical court proceedings are not sufficient to invoke the exception in Article 4(2), second indent, of the EU legislation on public access to documents (Regulation 1049/2001).[8]

15. In light of the above, the Ombudsman proposed that the Commission consider granting the widest possible access to any documents it identifies at confirmatory stage. Where the Commission considers that (full) access cannot be granted, it should explain, in detail and with reference to the individual document/advice, how disclosure would undermine one or several of the interests listed in Article 4 of Regulation 1049/2001.

16. In June 2024, the Commission replied to the complainant’s confirmatory application and, one month later, to the Ombudsman’s solution proposal. It identified 12 documents as falling within the scope of the complainant’s public access request and granted access to those parts of the documents that do not contain legal advice. In doing so, the Commission invoked exceptions under Regulation 1049/2001, arguing that full disclosure could undermine the protection of privacy and the integrity of the individual[9] and legal advice[10].

17. While the Commission acknowledged that the documents contain legal advice, it argued, in essence, that the legal advice (i) is not related to a legislative process; (ii) is novel, sensitive and of a particularly wide scope; and (iii) its disclosure would undermine the principle of ‘equality of arms’.

18. In the course of the inquiry, the complainant shared her comments on the Commission’s confirmatory decision. She did not agree with the Commission’s arguments and was not satisfied with the access granted. In essence, she argued that, in accordance with EU case-law (i) the Commission is a key player[11] in the legislative process and the requested documents clearly relate to a legislative process; (ii) conferring a particularly sensitive character on all legal advice concerning a novel question would result in impeding in practice the disclosure of a large proportion of that advice[12]; and (iii) a hypothetical connection with any pending or future court cases is not sufficient to undermine the principle of equality of arms. In her view, the Commission had manifestly “breached the time limits laid down in the legislation [...].”

The Ombudsman’s assessment

19. This inquiry concerned the Commission’s failure to identify documents and to reply to the complainant’s confirmatory application. As the Commission has by now adopted a confirmatory decision, in which it identified 12 documents, the Ombudsman closes the case.

20. That said, the Ombudsman makes two observations.

21. First, while this inquiry did not concern the extent of the public access now granted, the Ombudsman has doubts, based on a first review of the Commission’s confirmatory decision, as to whether its position is fully supported by the relevant EU case-law set out in her solution proposal. The complainant’s extensive arguments in this regard do not seem to be without merit.

22. Second, the Ombudsman notes the significant delay incurred by the Commission in this case. According to Regulation 1049/2001, an EU institution should, within 15 working days from registration of the confirmatory application, either grant access to the document requested or, in a written reply, state the reasons for the total or partial refusal. The time limit of 15 working days may be extended by a further 15 working days in exceptional circumstances.^[13]

23. In this case, it took the Commission more than seven months to reply to the complainant’s confirmatory application.

24. In fact, the complainant first made her three requests for public access to documents concerning legal advice related to three Commission proposals over two years ago, in March 2023. This case is thus another example of the significant delays encountered by the Commission in processing public access requests, which the Ombudsman found to amount to maladministration in her own-initiative inquiry into the matter (OI/2/2022/OAM). The Ombudsman has already urged the Commission to find ways and improve its handling of public access requests as a matter of priority.

25. There is nothing that could justify in this case what is manifestly a significant delay in replying to the complainant’s request and a clear failure by the Commission to comply with the time limits established by Regulation 1049/2001. This cannot be good administration.

Conclusion

As the Commission has now identified the relevant documents and replied to the complainant’s confirmatory application, the Ombudsman closes the case.

The Ombudsman unequivocally criticises the significant delay incurred by the Commission in replying to the complainant’s request.

The complainant and the Commission will be informed of this decision.

Teresa Anjinho
European Ombudsman

Strasbourg, 02/04/2025

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents; available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[2] (1) Proposal for a Regulation of the European Parliament and of the Council on the establishment of the Reform Support Programme, COM(2018)391 final; available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A0391%3AFIN; (2) Proposal for a Regulation of the European Parliament and of the Council on the establishment of a European Investment Stabilisation Function, COM(2018)387 final; available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52018PC0387; and (3) Proposal for a Regulation of the European Parliament and of the Council on a governance framework for the budgetary instrument for convergence and competitiveness for the euro area, COM(2019)345 final; available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52019PC0354&qid=1732180138101

[3] See judgment of the General Court of 23 April 2018 in Case T-468/16, Verein Deutsche Sprache v Commission, paragraphs 35-36; available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=201394&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=17438668

[4] Judgment of the Court of 1 July 2008 in joined cases C-39/05 P and C-52/05 P, Sweden and Turco v Council, para 68; https://curia.europa.eu/juris/liste.jsf?num=C-39/05&language=en

[5] Judgment of the Court of 8 June 2023 in case C-408/21 P, Council v Pech, para 43; https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-408/21%20P

[6] Judgment of the General Court of 18 September 2015 in case T-395/13, Miettinen v Council, para 41; https://curia.europa.eu/juris/liste.jsf?language=en&num=T-395/13

[7] Judgment of the General Court of 21 April 2021 in case T-252/19, Pech v Council, para 85; https://curia.europa.eu/juris/liste.jsf?num=T-252/19&language=en

[8] Ibid, paras 89-90.

[9] Article 4(1)(b) of Regulation 1049/2001.

[10] Article 4(2) 2nd indent of Regulation 1049/2001.

[11] Judgment of the Court of 4 September 2018 in case C-57/16 P, ClientEarth v Commission, paras 87-88; https://curia.europa.eu/juris/document/document.jsf?text=&docid=205322&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=16009033

[12] T-395/13, Miettinen v Council, para 41-43.

[13] Article 8 of Regulation 1049/2001.