Strasbourg, 18 December 2006

Dear Mr P.,

On 29 November 2004, you submitted a complaint to the European Ombudsman against the European Investment Bank ("EIB") on behalf of CEE Bankwatch Network and Friends of the Earth in the Czech Republic. Your complaint concerned the EIB's handling of requests for information regarding the D8 Motorway Project in the Czech Republic.

On 20 December 2004, I forwarded the complaint to the President of the EIB. The EIB sent its opinion on 15 March 2005. I forwarded it to you with an invitation to make observations, which you sent on 10 June 2005.

On 28 September 2005, I decided to conduct further inquiries into your complaint, asking the EIB for additional information. The EIB sent its reply on 11 November 2005.

I concluded that, in light of the EIB's response, it was necessary to conduct further inquiries. I therefore sent an additional information request to the EIB on 17 November 2005. I informed you accordingly.

The EIB replied to my request of 17 November 2005 on 27 December 2005. I sent it to you with an invitation to make observations. Following a request by my services, you sent me, on 2 November 2006, a copy of your observations dated 24 February 2006. Regrettably, I had not received your observations earlier.

I am writing now to let you know the results of the inquiries that have been made.

I would like to apologise for the delay in the handling of your complaint.

THE COMPLAINT

The complaint was submitted by CEE Bankwatch Network and Friends of the Earth in the Czech Republic ("the complainants"). According to the complainants, the facts were the following.

On 31 January 2003, Ms S., acting on behalf of the complainants, sent a request for information to Ms B., senior information officer at the European Investment Bank ("EIB"). Ms S.'s e-mail contained the following request:

"With this email I want to ask you for information on the planned EIB loan for D8 motorway in the Czech Republic. I was told that the EIB is considering a loan of 400 mln Euro for the project and that the decision is going to be taken in February. Is that correct? Who is directly responsible for the project? Is the project going to be presented for Board approval at the meeting on February 25th?"

On 14 February 2003, Ms B. replied as follows:

"I should inform you that I am not in a position to comment on the timetable for financing the D8 motorway.

As you know, before its commitment to a project (based on loan signature) the EIB publishes a range of factual data on a project in a summary linked to the project pipeline on its website. The list is itself up-dated to indicate the proposed investment's evolution from appraisal through to Board of Directors approval and then signature. Timing of a loan signature is of course linked to a project promoter's financing requirement.

As to your questions related to the agenda of the Board of Director, I should inform you that the agenda is not for external dissemination. However, the project promoter may be prepared to provide a forecast for the timing of his financing requirement.

As far as operational responsibilities in the Lending Directorates are concerned, these are identified on the EIB's website. Lending operations in the Czech Republic come under Mr [J.]."

On 24 February 2003, Ms S. contacted Ms B. again, stating the following:

"thank you for that information in which you referred me to the project pipeline list on the web. I have checked the list but did not find the D8 project there. According to the EIB information policy[(1)] that would mean that the project promoter asked the bank not to put it on the list for commercial confidentiality reasons. I would like to now if that is the case. If not what is the reason for not putting the D8 project on the web?"

On 10 March 2003, Ms S. was sent the following reply by Mr M-G., Director of Communications at the EIB:

"thank you for your request for information regarding the posting of the D-8 Motorway project on our project list.

The Czech Government has asked the Bank not to publicise public sector projects until the Parliament has approved them. The reason being that the Parliament has the sole authority for committing the Czech Republic.

Having said that, I would like to point out:

- this is the Czech authorities' general and official position, deriving from a constitutional structure of a sovereign State. There is nothing the EIB can do about this.

- the EIB is the only international financial institution to be granting loans directly to the Government, which requires a specific law; (...)

- Before Parliament approval [i.e., the Czech Parliament], there is a debate in both Houses, and ample room for anyone to intervene through his local political representative.

I hope this is helpful."

After looking into Czech law, the complainants found no legislation that would support Mr M-G.’s explanation. The complainants therefore asked the Czech Ministry of Environment for information on such a request. This Ministry referred them to the Government office, which in turn referred them to the Ministry of Finance. During this process, the complainants learned that the EIB Board had approved the D8 motorway loan during its session in April 2003. The complainants noted that information about the loan was not available on the EIB website until September 2004, when the project was officially signed.

On 25 July 2003, Ms S. submitted to the Secretary-General of the EIB the following complaint concerning access to information on the D8 Motorway project:

"Dear Mr. [U. (Secretary-General)],

Complaint concerning access to information on the D8 motorway loan to the Czech Republic

We are writing to register a complaint concerning the EIB`s handling of the information on the D8 motorway loan for the Czech Republic.

In particular, we have the following complaints:

- Information on the D8 loan was not released on the EIB website prior to the Board’s decision;

- Information on the Board’s decision to approve the loan, which took place in April, has not been available on the EIB website until now (as of July 23, 2003);

- EIB staff consistently refused to indicate any timeline as to when the loan would be discussed at the Board;

- The EIB’s information policy, which allows the Bank’s clients to decide on what, if any, information regarding the Bank’s financing is released;

- The EIB’s information policy, which describes the rules on access to information in such a vague way that it allows the bank to pick and choose when it will release information decisions which appear to be guided by convenience for the Bank and its client;

- The EIB’s information policy, which does not provide the public with the right to be informed about transactions between two public institutions (in this case between the European Investment Bank and the Government of the Czech Republic).

On January 31, 2003, [Ms. S.], acting on behalf of two environmental nongovernmental organisations - CEE Bankwatch Network and Friends of the Earth International - sent a request for information to Ms. [B.], Senior Information Officer at the EIB. Among other things, the request consisted of the question: 'Is the project (D8) going to be presented for Board approval at the meeting on February 25?'

In the response of February 14, Ms. [S.] was informed that Ms. [B.] was, 'not in a position to comment on the timetable for financing the D8 motorway'; and further, 'before its commitment to a project (based on loan signature) the EIB publishes a range of factual data on a project in a summary linked to the project pipeline list on its website.' After consulting with the EIB website Ms. [S.] found that the project in question was not mentioned in the project pipeline.

Therefore she got back to Ms. [B.] on February 24, noting that she had not found the project on the website, and with further questions on the matter, specifically asking: 'According to the EIB information policy that would mean that the project promoter has asked the bank not to put it [the project] on the list for commercial confidentiality reasons. I would like to know if that is the case. If not, what is the reason for not putting the D8 project on the web?'

In response, Ms. [S.] then received a letter from Mr. [M-G.] on March 10, which revealed that the information could not be provided due to the fact that the 'Czech Government has asked the bank not to publicize public sector projects until the Parliament has approved them. The reason being that the Parliament has the sole authority for committing the Czech Republic'.

After looking into Czech law, we could not find any legislation that would be relevant in supporting Mr. [M-G.'s] explanation. Indeed, several Czech state authorities (Ministry of Environment, Ministry of Finance, Government office) were unable to prove the existence of such a commitment (the Ministry of Environment referred us to the Government office, which in turn referred us to the Ministry of Finance, with the latter choosing not to reply to us at all).

At the same time we have learned very recently that the EIB Board approved the D8 motorway loan during its session in April. We note that information about the loan is still not available at the EIB website (as of July 23).

We believe that financial matters between two public institutions can not be a subject of confidentiality as this compromises citizens’ right to information.

We demand that the EIB’s information policy be changed so that information about all projects considered by the bank for financing is available on the bank’s website at least 120 days prior to the Board decision, and that all decisions about Board approvals are released within days after the Board’s meetings.

Technical matter

According to the EIB’s Code of Good Administrative Behaviour, complaints can be presented to the Secretary General 'within 2 months of the date of the correspondence which is the subject of the complaint'. However our complaint is based on information received only this week, which revealed that the Board approved the loan in April. Thus the ‘delay’ in our complaint is due to the EIB’s own secretive behaviour.

We look forward to your response

Yours sincerely, (...)".

Following this complaint, the complainants received, in response to a request that they had made, a letter from the Czech Ministry of Finance, containing the following information (the complainant's translation from Czech):

"Regarding your request for the conditions for information disclosure about loans that are provided to the Czech Republic by the EIB, we affirm that no request exists on the part of the Czech government in any form, where the government would ask the EIB not to provide information to the public regarding approved loans/projects that were still to be approved by the Czech Parliament.

In this regard, it is not clear what you mean by 'approved loans'. If you mean approval of concrete projects by the EIB's Board of Directors, then information disclosure is completely dependant on the EIB and is limited by the protection of its business confidentiality.

Czech Republic does not interfere in the EIB's communication strategy with the public in any way."(2)

On 22 September 2003, Mr U. from the EIB responded to the above-quoted complaint of 25 July 2003, as follows:

"I return to your letter of 25 July 2003, acknowledged on the same date, whereby you submit to me a complaint concerning the EIB's handling of information on the D8 Motorway in the Czech Republic.

As regards the first three points relating specifically to the D8 Motorway, following a full investigation of your allegations in consultation with [the] Bank services concerned, I conclude that staff have fully complied with current policy and rules, provided information to the extent possible and given you the correct reasons why further information was not available.

The last three points of your complaint concerns the Bank's public information policy in general. As indicated in various published documents, and in particular in the Information Policy Statement published in October 2002, the Bank welcomes feedback from the public, and I have taken note of your latest suggestions. These have in fact already been brought by CEE Bankwatch to the direct attention of the Bank's governing bodies, which decide policy matters.

As Secretary-General of the Bank, I shall continue to ensure that the public is kept informed of any changes that may be introduced by our governing bodies and, being mandated to receive complaints in accordance with Article 16 of the Code of Good Administrative Behaviour of EIB staff in their Relations with the Public, that these are properly implemented by members of the Bank's staff."

In their complaint to the Ombudsman, the complainants stated that, according to the EIB’s Transparent Information Policy, "all projects appear (in principle) on the list except those where the promoter specifically requests confidentiality to protect commercial interests". The term "all projects" includes those that the EIB "considers for financing, before a decision by the Board of Directors, and at the same time as the European Commission and the Member States are asked for their opinions." According to the complainants, in light of the aforementioned policy statements, the Czech Government would have had to request the EIB not to include the D8 Motorway project in the pipeline list in order to protect commercial interests. However, the conclusion which could, according to the complainants, be drawn from Mr M-G.’s response referred to above is that the Czech Government’s request relates not to commercial but to political interests. According to the EIB’s policies the possible grounds for not putting a project on the Project Pipeline List are only commercial ones; the policy does not mention any political grounds for withholding information. Therefore, the complainants believed that if there were a request from the Czech Government, the EIB would be obliged to assess whether or not the exception of "commercial interests" applied.

The complainants stated that there was no evidence that the Czech Government asked for the withholding of information on any other grounds. It could, according to the complainants, be concluded that the decision not to release information was made solely by the EIB and against its own rules on access to information.

The Ombudsman opened his inquiry into the following allegation and claim:

The complainants allege that the EIB has, in breach of its own rules on access to information, failed to provide the information requested by the complainants.

The complainants claim that the EIB should provide them with clear evidence that the Czech Government requested that the information concerned be kept confidential.

THE INQUIRY

The EIB's opinion

In its opinion on the complaint, the EIB made, in summary, the following comments:

The allegation that the EIB has, in breach of its own rules on access to information, failed to provide the information requested by the complainants:

The EIB's Communication and Information Department replied to every request for information sent by the complainants, providing the information requested and/or giving the reasons why the information requested could not be provided according the "Bank's Rules on Public Access to Documents"(3).

As regards the complainants' request for information concerning the publication of the project in the pipeline list of the EIB website, the complainants refers to the EIB's Public Access to Information Policy and in particular to the document "How EIB communicates - an overview", which describes "not exhaustively" (first paragraph, page 1 of the document) the key information available and the guiding principles for publication on the EIB website. Among the reasons quoted in the paragraph covering the publication of projects to be included in the financing pipeline, it is mentioned that that promoters may "oppose inclusion on justified grounds of commercial/market confidentiality". This does not exclude the possibility that the EIB, using its reasonable judgment and on the grounds of justified reasons (among which the applications of its "Rules on Public Access to Documents") could nevertheless deny publication on the EIB website of some projects, when the legitimate conditions for non-publication are met.

In the present case, reasons for non-publication were given by e-mail of 10 March 2003, on the basis of the request of the Czech Government not to publish sector projects until the Parliament of the Czech Republic had approved them. The EIB considered it reasonable not to publish this information following a request from the Czech Government. This was all well justified on the basis of the exception to disclosure of Article 4(i) of the EIB's Rules on Public Access to Documents. Moreover, in the EU Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents(4), the principle of protection of confidentiality for reasons concerning international relations has been enshrined (Article 4(1)(i)). This protection finds its utmost recognition in the case of documents originating from Member States whose prior agreement is a precondition to disclosure (Article 4(5)). The concerns of the EIB regarding disclosure of information related to the project in question are therefore also well founded in consideration of existing EU law and principles in this matter.

Thus, the EIB provided access to information to the extent possible at the moment, and was transparent on the reasons for non-disclosure.

The complainants claim that the EIB should provide them with clear evidence that the Czech Government requested the information concerned to be kept confidential:

By letters of 3 September 2001, 10 October 2003 and 1 October 2004, the EIB asked the Czech Ministry of Transport for its consent to publish information about the project. The Ministry of Transport replied by letters of October 2001, 4 November 2003 and 19 October 2004 respectively, denying consent until approval of the loan had been given by the Czech Parliament. This information had already been given to the complainants by e-mail dated 10 March 2003.

It should be noted that the EIB was not aware, at the time, of the existence of the letter of the Ministry of Finance addressed directly to the complainants. The EIB is seeking clarification from the Czech authorities on this discrepancy in the approaches of the Ministry of Finance and the Ministry of Transport.

The complainants' observations

In its observations, the complainants maintained their complaint. They also made the following comments:

It should be pointed out that the EIB's information policy was laid down in three specific documents: "Information Policy Statement", "How EIB Communicates" and "Rules on Public Access to Documents".

The EIB has not proved, either in the past or recently, that the decision not to publish the D8 project on the EIB pipeline was based on "justified grounds of commercial/market confidentiality".

The explanation provided by the EIB, according to which it can use its "reasonable judgment" to decide on disclosure, does not follow the EIB's own information policy. The EIB's "reasonable judgment" is not mentioned as a factor for releasing or withholding information; it can therefore not be treated as a tool guiding the EIB's disclosure of information policy as it renders that policy and the rules on disclosure completely useless. The explanation provided by the EIB in its opinion significantly contradicts the EIB's policy as presented in its "Public Access to Information, Information Policy statement": "[a]cknowledging that the public has an interest in the activities of the EIB this policy statement and related documents aim to support one of the EIB's key corporate objectives: to achieve a high level of transparency of its activities and communicate even more effectively with all stakeholders".

With regard to the alleged request by the Czech Republic to keep the information here concerned confidential, it is maintained that such a request was in fact not made. The complainants proved the non-existence of such a request for confidentiality through the letter from the Czech Ministry of Finance. However, if such request had existed, it should have applied to all projects financed by the EIB in the Czech Republic where the Czech Government was a partner. The EIB should have been notified about it by the Ministry of Finance and should by definition not release any such projects under consideration by the Ministry until Parliament agrees, and therefore should not seek clearance from the Ministry of Transport.

In the letter dated 10 March 2003, the complainants did not receive information about the EIB's communication with the Ministry of Transport from September to October 2001, nor did they receive information about the other communications referred to in the EIB's opinion in the present case.

Further inquiries

After careful consideration of the EIB's opinion and the complainants' observations, it appeared that further inquiries were necessary. The Ombudsman sent the following request to the EIB:

"In its opinion, the EIB stated that the confidentiality request regarding the information requested by the complainants had been made in writing by the Czech Ministry of Transport. The EIB did not, however, enclose a copy of the letter from the Ministry of Transport. The EIB noted that the document is a third party document, and that it "cannot be annexed or sent to the complainants without explicit agreement of the authorities".

To help me pursue my inquiries into this complaint, I would be grateful if the EIB could contact the Czech authorities in order to ask them if the letter could be released, and, if so, provide me with a copy of that letter (in its original language). The letter would in that case form part of the present inquiry and be forwarded to the complainants for observations."

The EIB's reply to the Ombudsman's further inquiries

In its letter, the EIB stated that the EIB had "received consent from the Czech Ministry of Transport to provide you with a copy of their letter asking to delay publication of information about the project concerned until approval of the loan by the Czech Parliament. Therefore, I am forwarding you the letter n° 41/2005-410-ROPO/1 of 3 February 2005."

The letter enclosed in the EIB's reply contained the following statement of the "1st Deputy Minister - State Secretary": "I confirm that in the past I had recommended to publish information about transport projects on the EIB website only after the Parliament's approval of the loan".

Additional inquiries

The Ombudsman decided that further additional inquiries were necessary. The EIB's reply to the Ombudsman's further inquiries, above, basically did not reply to the request made by the Ombudsman. The letter enclosed in the EIB's reply was, as stated above, dated 3 February 2005. The EIB's reply to the complainants' information request here concerned was made on 10 March 2003. The letter of 3 February 2005 could therefore not be the request that the EIB had allegedly received from the Czech authorities to delay release of the information concerned. The Ombudsman therefore made the following additional request to the EIB:

"(...) I would be grateful if the EIB could provide me with specific information on any correspondence from the Czech Ministry of Transport, pre-dating the EIB's reply of 10 March 2003 to the information request here concerned, in which the Ministry of Transport had specifically asked the EIB not to release information on transport projects until the Czech Parliament had approved the loans concerned."

The EIB's reply to Ombudsman's additional further inquiries

In its reply to the above request, the EIB informed the Ombudsman that the EIB had received the consent of the Czech Ministry of Transport to provide the Ombudsman with a copy of the letter in which it asked the EIB to delay its publication of information about the projects "Prague Motorway Ring" and "Pilsen Motorway Bypass" for as long as the Czech Parliament had not approved the loans concerned. The EIB thus enclosed a copy of the letter concerned (N° 26973/01-O410 of 24 September 2001). The letter contained the following text (quoting a translation dated 8 October 2001, enclosed in the EIB's reply):

"Dear Sir,

In your letters of September 2, 2001, ref. No. 06894 and 06895, you requested approval to publish information about the preparation of projects in connection with which your bank is considering, or is already negotiating, the granting of credits.

By virtue of Act No. 218/2000 Coll. concerning budgetary rules and amendments to related laws, the Czech Republic is authorized to provide state security for concluded credits only if this same is stipulated by a special act passed by government and Parliament of the Czech Republic.

As of now I cannot give approval to public information about the preparation of the ' Prague Motorway Ring' and the 'Pilsen Motorway Bypass' project on the European Investment Bank's web pages.

This decision is based upon the fact that the Czech Republic has not officially dealt with a bill about providing security for the above-specified projects.

Therefore, I must consider the publication of this type of information to be premature.

Best regards, (...)"

The EIB furthermore remarked that the EIB had always kept close contact with the Czech Ministry of Transport. Also, prior to 10 March 2003, the EIB was repeatedly asked by this Ministry, in meetings and over the telephone, for confidentiality regarding public projects not yet approved by the Czech Parliament.

The complainants' observations

In its observations on the EIB's reply, the complainants maintained their allegation. They stated that they did not consider that the letter submitted by the EIB in response to the Ombudsman's further inquiries was relevant, for the following reasons:

First, the letter refers to " Prague motorway ring" and "Pilsen motorway bypass", and does not mention "D8 Motorway" project.

Second, the complainants had examined Czech law, and had found no legislation that would be relevant to a decision not to disclose information regarding public projects until approval by the Czech Parliament.

THE DECISION

1 Introductory remarks - the nature of the requests made by the complainants

1.1 In light of the comments of both the CEE Bankwatch Network and Friends of the Earth in the Czech Republic ("complainants") and the European Investment Bank ("EIB"), it is useful first to specify the nature of the requests made by the complainant.

The complainants' e-mail request of 31 January 2003 to the EIB began as follows:

"With this email I want to ask you for information on the planned EIB loan for D8 motorway in the Czech Republic. (...)".

The complainants' e-mail of 24 February 2003 contained the following message:

"thank you for that information in which you referred me to the project pipeline list on the web. I have checked the list but did not find the D8 project there. According to the EIB information policy that would mean that the project promoter asked the bank not to put it on the list for commercial confidentiality reasons. I would like to now if that is the case. If not what is the reason for not putting the D8 project on the web?"

On 10 March 2003, Ms S. received a reply from Mr M-G., Director of Communications at the EIB which began as follows: "thank you for your request for information regarding the posting of the D-8 Motorway project on our project list." (Emphasis added).

The complaint of 25 July 2003 to the EIB's Secretary-General began as follows:

"Dear Mr. [U. (Secretary-General)],

Complaint concerning access to information on the D8 motorway loan to the Czech Republic

We are writing to register a complaint concerning the EIB`s handling of the information on the D8 motorway loan for the Czech Republic."

The reply of 22 September 2003 of the EIB's Secretary-General began as follows:

"I return to your letter of 25 July 2003, acknowledged on the same date, whereby you submit to me a complaint concerning the EIB's handling of information on the D8 Motorway in the Czech Republic."

1.2 Thus, (i) the complainants formulated their requests as requests for access to information, (ii) the EIB responded to those requests as requests for access to information, and (iii) the complainants did not call into question the propriety of handling their requests as such. It is therefore clear that the requests here concerned were requests for information, and not applications for public access to specific documents. As stated in the Ombudsman's opening letter of 20 December 2004, the complainants' allegation under examination in the context of the present inquiry is that the EIB had, in breach of its own rules on access to information(5), failed to provide the information requested by the complainants.

2 Allegation that the EIB failed to provided requested information in violation of its relevant rules

2.1 The case concerns an information request made by the complainants to the EIB. The request was made for information on the EIB's possible financing of the so-called D8 Motorway in the Czech Republic. The EIB eventually informed the complainants as follows:

"thank you for your request for information regarding the posting of the D-8 Motorway project on our project list.

The Czech Government has asked the Bank not to publicise public sector projects until the Parliament has approved them. The reason being that the Parliament has the sole authority for committing the Czech Republic.

Having said that, I would like to point out:

- this is the Czech authorities' general and official position, deriving from a constitutional structure of a sovereign State. There is nothing the EIB can do about this.

- the EIB is the only international financial institution to be grating loans directly to the Government, which requires a specific law; the Commission gives grants, which do not require a similar procedure. Hence, [a] comparison between EIB projects and PHARE/ISPA funded projects cannot be made.

- Before Parliament approval, there is a debate in both Houses, and ample room for anyone to intervene through his local political representative.

I hope this is helpful."

In a decision made in response to the complainants' administrative complaint for failure to provide information, the Secretary-General of the EIB informed the complainant, on 22 September 2003, as follows:

"As regards the first three points relating specifically to the D8 Motorway, following a full investigation of your allegations in consultation with [the] Bank services concerned, I conclude that staff have fully complied with current policy and rules, provided information to the extent possible and given you the correct reasons why further information was not available."

2.2 The Ombudsman first points out that principles of good administration require that the Administration provide citizens with the information they have requested, unless it invokes valid and adequate reasons for not doing so. The EIB's Code of good administrative behaviour contains the following pertinent provisions:

"Article 10 – Requests for information

1. Where they are competent to deal with the request concerned, staff shall provide members of the public with the information requested. They shall ensure that the information furnished is clear and comprehensible.

2. In the event that an oral request for information is too complicated or complex to deal with, the member of staff approached shall ask the member of the public concerned to formulate his/her request in writing.

3. If, for reasons of confidentiality and in particular banking secrecy, a member of staff is unable to divulge the information requested, he/she shall give the reasons why such information cannot be provided." (Emphasis added.)

Relatedly, Article 13 of that Code provides as follows (the Ombudsman's underlining):

" Article 13 – Reasoned replies and their deadlines

1. (...)

2. (...)

3. All replies to requests and complaints must be reasoned in such way that the person concerned is precisely informed of the grounds and arguments on which they are based. (Emphasis added.)

4. (...)

5. (...)."

2.3 In the present case, the EIB informed the complainants by e-mail of 10 March 2003 that "[t]he Czech Government has asked the Bank not to publicise public sector projects until the Parliament has approved them". Subsequently, in the EIB's decision on the complainants formal complaint concerning the Bank's refusal to provide the information requested, the Secretary-General of the EIB stated that "I conclude that staff have fully complied with current policy and rules, provided information to the extent possible and given you the correct reasons why further information was not available." Thus, whereas the EIB made it clear that its decision to refuse disclosure of the information requested was due to the fact that the "[t]he Czech Government had asked the Bank not to publicise public sector projects until the Parliament has approved them", the EIB did not explain why, according to its relevant "policy and rules" that it applied to requests for access to information, this fact justified the above refusal. In this regard, it is noted that the complainants had made a specific reference to the following passage featuring in the above-mentioned EIB publication "How EIB Communicates - an overview", October 2002(6): "In principle, all projects being considered for financing appear on the list, unless the project promoters (or other business partners where appropriate) oppose inclusion on justified grounds of commercial/market confidentiality." The EIB did not in any specific way address the issue raised by the complainants' reference to this statement.

In light of the above, the Ombudsman considers that the EIB's replies to the complainants' letters of 24 February and 25 July 2003 were not sufficiently precise as regards its then "current policy and rules" which had allegedly been "fully complied with" in relation to the EIB's challenged refusal to provide the information requested(7).

The Ombudsman also notes, however, that the EIB provided certain relevant explanations in its replies to the Ombudsman in the present case. The Ombudsman thus considers it relevant to examine whether the above noted shortcoming was remedied in the context of the present inquiry.

2.4 In this regard, it is first recalled that in their complaint to the Ombudsman, the complainants argued, in particular, the following: In light of the EIB's Transparent Information Policy, the Czech Government could have requested the EIB not to include the D8 Motorway project in the pipeline list only in order to protect commercial/market confidentiality; however, the conclusion which could be drawn from the EIB's response was that the Czech Government’s request related not to commercial but to political interests.

(ii) there was no evidence that the Czech Government asked for the withholding of information on any other grounds; it could therefore be concluded that the decision not to release information was made solely by the EIB and contrary to the EIB’s own rules on access to information.

2.5 In its opinion on the complaint to the Ombudsman, the EIB stated, in summary, the following:

As regards the complainants' request for information concerning the publication of the project in the pipeline list of the EIB website, the complainants refer to the EIB's Public Access to Information Policy and in particular to the document "How EIB communicates - an overview", which describes "not exhaustively" (first paragraph, page 1 of the document(8)) the key information available and the guiding principles for publication on the EIB website. Among the reasons quoted in the paragraph covering the publication of projects to be included in the financing pipeline, it is mentioned that promoters may "oppose inclusion on justified grounds of commercial/market confidentiality". This does not exclude the possibility that the EIB, using its reasonable judgment and on the grounds of justified reasons (among which the application of its "Rules on Public Access to Documents") could nevertheless deny publication on the EIB website of some projects, when the legitimate conditions for non-publication are met.

In the present case, reasons for non-publication were given by e-mail of 10 March 2003 on the basis of the request of the Czech Government not to publish sector projects until the Parliament of the Czech Republic had approved them. The EIB considered it reasonable not to publish this information following a request from the Czech Government. This was all well justified on the basis of the exception to disclosure of Article 4(i) of the EIB's Rules on Public Access to Documents. Moreover, the principle of protection of confidentiality for reasons concerning international relations has been enshrined (Article 4(1)(i) in EU Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents. This protection finds its utmost recognition in the case of documents originating from Member States whose prior agreement is a precondition to disclosure (Article 4(5)). The concerns of the EIB regarding disclosure of information related to the project in question are therefore also well founded with regard to EU law and principles in this matter.

In response to the Ombudsman's further inquiries in the present case, the EIB provided copies of two letters that had been sent to it by the Czech Ministry of Transport. The first letter, dated 3 February 2005, contained the following statement:

"I confirm that in the past I had recommended to publish information about transport projects on the EIB website only after the [Czech] Parliament's approval of the loan".

The second letter, dated 24 September 2001, contained the following information and statements:

"Dear Sir,

In your letters of September 2, 2001, ref. No. 06894 and 06895, you requested approval to publish information about the preparation of projects in connection with which your bank is considering, or is already negotiating, the granting of credits.

By virtue of Act No. 218/2000 Coll. concerning budgetary rules and amendments to related laws, the Czech Republic is authorized to provide state security for concluded credits only if this same is stipulated by a special act passed by government and Parliament of the Czech Republic.

As of now I cannot give approval to public information about the preparation of the ' Prague Motorway Ring' and the 'Pilsen Motorway Bypass' project on the European Investment Bank's web pages.

This decision is based upon the fact that the Czech Republic has not officially dealt with a bill about providing security for the above-specified projects.

Therefore, I must consider the publication of this type of information to be premature.

Best regards, (...)."

The EIB furthermore expressly remarked that the EIB had always kept close contact with the Czech Ministry of Transport and, also prior to 10 March 2003, had been repeatedly asked in meetings and over the telephone, for confidentiality regarding public projects not yet approved by the Czech Parliament.

2.6 In their observations, the complainants informed the Ombudsman that they maintained their complaint. They argued, in particular, (i) that the EIB had not proven that the decision not to publish the D8 project on the EIB pipeline was based on justified grounds of commercial/market confidentiality, and (ii) the above-quoted letter from the Czech Ministry of Transport only refers to the 'Prague Motorway Ring' and the 'Pilsen Motorway Bypass', not the D8 Motorway here concerned.

2.7 With regard to the complainant's first argument referred to above, the Ombudsman notes that the complainants appear to have based their position on a passage in the EIB publication entitled "Public Access to Information - How EIB communicates - an overview" (see point 2.3 above). The section in which this passage is found reads as follows:

"Project-related information

Project pipeline

The Bank publishes on its website advance information on projects it considers for financing, with the aim to release information as early as is feasible in the project cycle. Projects are introduced onto the pipeline list before a decision by EIB’s Board of Directors, when the Bank has advanced sufficiently in discussions with the project promoter, and at the same time as it asks the European Commission and the European Union Member States for their opinion on the project. In principle, all projects being considered for financing appear on the list, unless the project promoters (or other business partners where appropriate) oppose inclusion on justified grounds of commercial/market confidentiality. At the request of the project promoter, certain information may be excluded, for instance contract details. In addition the Bank will not disclose financial data on promoters, borrowers and cofinancing institutions, its own internal analysis and comments on such data, industrial processes and market information."

In respect to this document and the passage concerned, the Ombudsman notes the following: (i) The title of the above publication expressly referred to its own content as being an "overview"; (ii) the introductory passage in the publication referred to the content as follows: "[t]he following sections, which are not exhaustive, describe key information available" (emphasis added); (iii) the passage relied upon by the complainants begins with the phrase "In principle"; (iv) furthermore, according to the same section, "certain information" may be excluded "[a]t the request of the project promoter"; finally, the EIB's publication entitled "Public Access to information - information policy statement" (October 2002, previously published on the EIB's homepage) stressed that "EIB regards its information policy as an evolving and flexible process, subject to continuous evaluation and quality assessment" (p. 1).

In light of the above, the Ombudsman considers that the EIB publication invoked by the complainants cannot be considered as having announced a concrete rule that access to the kind of information requested by the complainants in the present case could be refused exclusively on the grounds of "commercial/market confidentiality"(9).

In this regard, it is recalled that, as noted in the EIB's opinion, the public interest of "international relations" may justify non-disclosure under Regulation 1049/2001 and under the EIB's rules on "public access to information - public access to documents" applicable ratione temporis in the case at hand (October 2002, previously published on the EIB's homepage). Furthermore, in this context, the Court of First Instance has emphasised that the institutions enjoy a wide margin of discretion when justifying a refusal of access by reference to the protection of the public interest concerning international relations(10).

Taking into account the above, the Ombudsman finds that the EIB could validly rely on considerations pertaining to the administration of the Community's international relations when it refused to provide the complainants with the information they had requested.

2.8 Further, the complainants have claimed that the EIB should provide them with clear evidence that the Czech Government requested the information concerned to be kept confidential. Relatedly, they argued that the EIB had not proven that the decision not to publish the D8 project on the EIB pipeline was based on justified grounds of commercial/market confidentiality.

In this regard, the Ombudsman notes (i) that the EIB's letter of 24 September 2001, quoted above, could reasonably be understood as indicating the Czech Government's view that publication by the EIB of information similar to the one requested by the complainants in the case at hand would not be appropriate before the enactment by the Parliament of a special act providing state security for the financing of the relevant project; (ii) that the EIB in this case remarked that it had always kept close contact with the Czech Ministry of Transport and, also prior to 10 March 2003, had repeatedly been asked in meetings and over the telephone, for confidentiality regarding public projects not yet approved by the Czech Parliament, and (iii) that the above-quoted letter of 3 February 2005 from the Czech Ministry of Transport confirmed that "(...) in the past [it] had recommended to publish information about transport projects on the EIB website only after the [Czech] Parliament's approval of the loan".

In light of the above, and taking into account the EIB's wide margin of discretion in the administration of matters relating to the Community's international relations, the Ombudsman considers (i) that the EIB was not required to obtain, in writing, specifically for the project here in question, a confirmation of the Czech Government's desire for confidentiality(11), (ii) in the context of the present inquiry, the EIB provided sufficient evidence with respect to the behaviour of the Czech authorities which led it to refuse disclosure of the information concerned.

2.9 In light of the foregoing, the Ombudsman considers that it has not been established that the EIB had, in breach of its own rules on access to information, failed to provide the complainant with the information they had requested. Hence, he finds no corresponding instance of maladministration(12).

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, the Ombudsman considers that that there is no maladministration by EIB. The Ombudsman therefore closes the case. The Ombudsman also draws attention to his further remark below.

The President of the European Investment Bank will also be informed of this decision.

FURTHER REMARK

As noted in point 2.2 of the above decision, principles of good administration require that the Administration provide citizens with the information they have requested, unless it invokes valid and adequate reasons for not doing so. In the present case, the EIB failed, as explained in point 2.3 above, to give the complainants sufficiently precise explanations for its refusal to disclose the information requested. Although this shortcoming was remedied in the context of the present inquiry, the Ombudsman would like to indicate to the EIB that, in light of the above-mentioned principle of good administration, it was important to provide such explanations to the complainants, at the very least by responding to the latter's formal complaint to the EIB. The Ombudsman invites the EIB properly to take into account this remark when it deals with future requests for information.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The complainant appears to have referred to a passage featuring in the EIB's publication "How EIB Communicates - an overview", October 2002 (available on: http://www.eib.europa.eu/publications/publication.asp?publ=62, under revision), see also point 2.7 below.

(2) It is not clear from the complaint whether a copy of this letter was forwarded to the EIB.

(3) Rules adopted in October 2002, superseded by the EIB's "Public Disclosure Policy", adopted on 28 March 2006.

(4) Official Journal 2001 L 145, p. 43.

(5) The Ombudsman points out that, as already noted in note 3 above, the EIB has, following the present complaint and related submissions, adopted a new "Public Disclosure Policy", published on 28 March 2006 (http://www.eib.org/publications/publication.asp?publ=250).

(6) A vailable on the EIB's webiste (http://www.eib.europa.eu/publications/publication.asp?publ=62, under revision).

(7) In this regard, and taking into account his findings in point 2.8 below, the Ombudsman will make a further remark at the end of his decision.

(8) The EIB's reference appears to be to the following sentence: "The following sections, which are not exhaustive, describe key information available".

(9) Specifically, the publication did not announce a rule to the effect that disclosure could not be refused on the basis of considerations pertaining to the public interest of "international relations".

(10) Cf. Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429, paragraph 46: "With regard to the scope of the Court’s review of the legality of a decision refusing access, it should be noted that, in Hautala v Council, cited in paragraph 44 above, paragraph 71, and Kuijer v Council, cited in paragraph 45 above, paragraph 53, the Court recognised that the Council enjoys a wide discretion in the context of a decision refusing access founded, as in this case, in part, on the protection of the public interest concerning international relations. In Kuijer v Council, such a discretion was conferred on an institution when it justifies its refusal of access by reference to the protection of the public interest in general. Thus, in areas covered by the mandatory exceptions to public access to documents, provided for in Article 4(1)(a) of Regulation No 1049/2001, the institutions enjoy a wide discretion."

(11) Thus, the Ombudsman does not accept the complainants' argumentation to the extent it suggests otherwise.

(12) The Ombudsman also notes that the facts referred to by the EIB relate to the past, and that the relevant information on the D8 Motorway now appear to be publicly accessible or can be requested from the EIB.