Background to the complaint

1. Each year, several posts of Heads of Delegations of the European Union to third countries (‘EU Ambassadors’) need to be filled. The appointment of an EU Ambassador is a process that involves several EU institutions and certain Member States. The process is concluded when the High Representative of the Union for Foreign Affairs and Security Policy officially appoints the EU Ambassador, which is followed by a press release and the publication of the Ambassador’s short résumé by the European External Action Service (EEAS).

2. In July 2021, the complainant, a journalist and political activist, made a request to the EEAS for public access^[1] to briefing documents for the hierarchy of the EEAS concerning the recent appointment of the EU Ambassador to Israel.

3. The EEAS refused access to the requested documents. It argued that disclosure could seriously undermine the protection of the privacy and the integrity of the individuals mentioned in the documents^[2] and that proceedings of a selection board shall be secret under the EU Staff Regulations^[3].

4. The complainant then requested the EEAS to review its position (by submitting what is known as a ‘confirmatory application’)^[4].

5. In October 2021, the EEAS adopted its final decision. The EEAS clarified that it had identified six (categories of) documents as falling within the scope of the request^[5]. It confirmed its decision to refuse access to these documents.

6. Dissatisfied with this decision, the complainant turned to the Ombudsman in November 2021.

The inquiry

7. The Ombudsman opened an inquiry into the refusal by the EEAS to grant public access to the documents concerning the appointment of the EU Ambassador.

8. The Ombudsman inquiry team inspected the EEAS’s file on the case and met with the relevant EEAS representatives to obtain additional explanations on why the EEAS had refused access. The meeting report was then shared with the complainant, who provided his comments.

Arguments presented

Arguments presented by the EEAS

9. The EEAS said that “according to Article 6 of Annex III of the Staff Regulations, the proceedings of selection panels and subsequently all documents related to it are confidential and therefore cannot be shared for the purposes of the request tabled in line with Regulation 1049”. In the meeting, the EEAS clarified that, in accordance with EU case law^[6], the rule in the EU Staff Regulations that proceedings of selection boards shall be secret^[7] must be taken into consideration when determining whether access would undermine the decision-making of an institution^[8].

10. The EEAS considered that the complainant’s arguments did not demonstrate the existence of an overriding public interest in disclosure^[9], nor could it itself identify any overriding public interest in disclosure. While the appointment of an EU Ambassador is important, there is, in its view, no public interest in disclosing the evaluation of candidates. In addition, the representatives emphasized that there is a comparatively high level of scrutiny applied to the appointment of EU Ambassadors, as opposed to the level of scrutiny applied to the selection of other staff recruited at the same grade^[10].

11. The EEAS further argued that all documents falling under the scope of the request contained personal information and, therefore, disclosure must be in line with the EU data protection rules^[11]. The EEAS did not consider the complainant’s arguments to establish a necessity, for a specific purpose in the public interest, of the transfer of the personal data to him. It also argued that there was a reasonable and foreseeable risk that disclosure of the personal data of the candidates would undermine their legitimate interests.^[12] The EEAS thus refused access to the personal data to protect the privacy and integrity of the individual^[13].

Arguments presented by the complainant

12. The complainant said that he made his request under the EU rules on public access to documents and, therefore, he failed to understand why the EEAS refers to the EU Staff Regulations in refusing access. In addition, since the person appointed EU Ambassador worked for a national government of an EU Member State prior to his appointment, the EU Staff Regulations do not apply to him.

13. The complainant considered that the EEAS incorrectly invoked the exception related to the privacy and integrity of the individual. The complainant said that he does not seek any details about the EU Ambassador’s private life. Rather, the documents sought concern a post funded with EU public money. 

14. The complainant set out several arguments as to why he considered that there was an overriding public interest in disclosure. First, he said that EU citizens should know why the individual was appointed as EU Ambassador. He considered that EU institutions have a duty to demonstrate that persons appointed to such important posts are qualified. Moreover, he argued that citizens could not be expected to have confidence in such appointments unless there is a minimum level of transparency that allows for public scrutiny. The absence of transparency violates, in his view, the principles laid down in the ‘Code of Good Administrative Behaviour’^[14]. Lastly, the complainant added that the EU’s relations with the posting country are of a major public interest. The documents should be released, as the public should be in a position to verify whether the EU Ambassador fulfils his duty to respect human rights.

The Ombudsman's assessment

15. The inspection of documents showed that all documents falling under the scope of the complainant’s request were part of the selection procedure concerning the appointment of the EU Ambassador. The documents are therefore covered by the secrecy of selection board proceedings^[15].

16. If a request for public access is made to documents related to selection proceedings, the institution concerned needs to assess whether disclosure would undermine its decision-making process. In doing so, it is important to take into account that the principle of secrecy was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the EU administration itself or the candidates concerned or third parties.^[16]

17. In this case, it is clear that disclosure could hamper future selection proceedings, as it would reveal the (types of) questions to which candidates had to reply and, more generally, how such assessments are conducted. Moreover, disclosure could harm the independence of the procedure and could place the evaluators under external pressure.

18. The Ombudsman thus considers that the EEAS was justified in stating that disclosing the documents could undermine its decision-making process, even after the procedure has been concluded, in light of the above explanations.

19. Under the EU rules on public access to documents, disclosure would still be possible if there is a public interest in disclosure that overrides the EEAS’s interest in protecting its decision-making process. In this case, while the Ombudsman agrees that transparency both in relation to high-level appointments and the EU’s relations with third countries is important, general references to ‘transparency’ are not sufficient to substantiate an overriding public interest in disclosure under EU case law^[17]. The General Court also confirmed that an applicant cannot validly rely on the concept of transparency in order to call into question the applicability of the secrecy of selection procedures.^[18]

20. In light of the above, the Ombudsman finds it reasonable to consider that there is no specific public interest in disclosure of the documents concerned, which would override the public interest in protecting the EEAS’s decision-making process.

21. The inspection by the Ombudsman inquiry team further confirmed that the documents contain personal data throughout. Contrary to what the complainant argued, personal data is a very broad concept and encompasses both information related to an individual’s private life and professional life.^[19] As such, the names of the evaluators, the names of the candidates, as well as their résumés, motivation letters and professional evaluations^[20] are personal data.

22. In line with the EU data protection law, the EEAS should follow a three-stage analysis^[21] before it can grant a request to make personal data public. This involves, as a first step, examining whether the applicant demonstrated a need for the transfer of the data for a specific purpose in the public interest.

23. The Ombudsman notes that, according to EU case law^[22], a general reference to ‘transparency’ does not, in itself, represent a necessity for disclosing personal data. Therefore, the Ombudsman finds it reasonable for the EEAS to consider that the complainant’s arguments do not establish a ‘necessity in the public interest’.

24. As such, the Ombudsman considers that it was reasonable for the EEAS to consider that disclosure of the documents could harm the privacy and integrity of the candidates and the evaluators.

25. In light of the above, the Ombudsman concludes that the decision by the EEAS to refuse access to the requested documents was justified.

26. Having said that, the Ombudsman regrets that the EEAS’s reasoning set out in its decisions on why it refused access was very succinct. The EEAS did not refer to all relevant exceptions and failed to elaborate on them under the EU rules on public access to documents. The EEAS also failed to refer to the applicable case law and the applicable EU data protection legislation. Moreover, the EEAS did not address the arguments put forward by the complainant. This made it difficult for the complainant to understand the reasons for the EEAS’s refusal.

27. While the Ombudsman considers that the explanations provided by the EEAS representatives at the meeting appropriately addressed these concerns, she emphasizes that it is crucial that the EEAS provides detailed reasons in its decisions both at the initial and confirmatory stage to ensure that citizens can exercise their fundamental right of public access to documents.

28. In this regard, the Ombudsman recalls her decision to the EEAS adopted in 2018^[23], in which she made a suggestion according to which

[t]he EEAS should ensure that it provides detailed reasons for refusing access to documents, explaining how the disclosure of the requested documents may undermine, specifically and effectively, the interest protected by Regulation 1049/2001. This includes an analysis of the existence (or absence) of an overriding public interest in disclosure. [...]

29. The EEAS accepted that suggestion at the time. It committed to updating its internal instructions to responsible divisions when attributing incoming access to document requests, as well as to contacting the desk officers who deal with requests for access to documents, with a view to assisting them in formulating justifications, when needed. The EEAS said that it would also more consistently include an analysis of the existence of an overriding public interest in disclosure.

30. Despite these commitments, the Ombudsman notes that the EEAS did not adhere to them in this case. She will therefore make a corresponding suggestion below and trusts the EEAS to appropriately follow-up on it in future.

31. Moreover, the Ombudsman notes that the EEAS normally informs the public about the background of EU Ambassadors by publishing a short CV on the website of the respective delegation and that it should also consider doing so in in this case.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European External Action Service in refusing to disclose the documents at issue.

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

Suggestions for improvement

The EEAS should ensure that it provides detailed reasons for refusing access to documents, explaining how the disclosure of the requested documents may undermine the interest(s) protected by Regulation 1049/2001.

Moreover, the EEAS should publish the CV of the EU Ambassador in question on the delegation website.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 18/02/2022

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049.

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

[3] As defined in Article 6 of Annex III of the Staff Regulations of Officials and the Conditions of Employment of Other Servants: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501#tocId201.

[4] Article 7 of Regulation 1049/2001.

[5] The documents identified were the following: 1.Résumés and motivation letters, 2. the pre-selection report, 3. the interview report, 4. assessment centre reports, 5. the final report and 6. the note for the attention of the Secretary General of the European Commission for the College of the Commissioners’ approval of the shortlisted candidates within 2021 rotations.

[6] See, for example, the Judgment of the General Court (Fourth Chamber) of 23 September 2020, ZL v EUIPO, Case T-596/18, paras 45-48: https://curia.europa.eu/juris/document/document.jsf?text=1049%2BEPSO&docid=231529&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=183081#ctx1.

[7] Article 6 Annex III of the Staff Regulations (see footnote 3).

[8] Article 4(3), second indent, of Regulation 1049/2001.

[9] In line with Article 4(3), second indent, of Regulation 1049/2001.

[10] For example, the selection panels are composed of representatives of the EEAS, the Commission, the General Secretariat of the Council and several Member States. The appointment is followed by a press release and the publication of the ambassador’s short résumé. In addition, the European Parliament may decide to exchange views with a successful candidate prior to their official taking up of duties, ensuring democratic scrutiny.

[11] In particular, in line with Article 9(1)(b) of Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725. This Article stipulates a three-stage analysis for institutions to consider whether it can transfer personal data. First, the recipient needs to demonstrate the need for the transfer of the personal data for a specific purpose in the public interest. Second, there must be no reason to believe that such transfer might undermine the legitimate interests of the data subject. Third, the controller needs to establish that it is proportionate to transmit the personal data for that specific purpose, weighing up the various competing interests.

[12] Article 4(1)(b) of Regulation 1049/2001 in conjunction with Article 9(1)(b) of Regulation 2018/1725.

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

[14] The Code of good administrative behaviour for staff of the European Commission in their relations with the public: https://ec.europa.eu/info/sites/default/files/20131125-code-good-administrative-behaviour-en_1.pdf.

[15] As defined in Article 6 annex III of the Staff Regulations.

[16] Judgment of the Court of First Instance  of 14 July 2005, Le Voci v Council, Case T-371/03, paragraph 123: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62003TJ0371&from=EN.

[17] Judgment of the Court (Second Chamber) of 16 July 2015, ClientEarth v Commission, Case C-612/13 P, paragraph 93: https://curia.europa.eu/juris/liste.jsf?num=C-612/13&language=EN.

[18] Judgment of the General Court (Fifth Chamber) of 23 January 2003, Angioli v Commission, Case T-53/00, paragraph 84: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-53/00.

[19] Judgment of the General Court of 27 November 2018, VG v Commission, joined cases T-314/16 and T-435/16, paragraph 74: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62016TA0314.

[20] Judgment of the Court (Second Chamber) of 20 December 2017, Nowak v Data Protection Commissioner, Case C-434/16: https://curia.europa.eu/juris/liste.jsf?language=nl&td=ALL&num=C-434/16.

[21] In line with Article 9(1)(b) of Regulation 2018/1725, first, the recipient needs to demonstrate the need for their transfer for a specific purpose in the public interest. Second, there must be no reason to believe that such transfer might undermine the legitimate interests of the data subject. Third, the controller (the EEAS) needs to establish that it is proportionate to transmit the personal data for that specific purpose, after having weighed up the various competing interests.

[22] Judgment of the General Court (Fifth Chamber, Extended Composition) of 25 September 2018, Psara v European Parliament, T-639/15, paragraph 74: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019TJ0185.

[23] Decision in case 620/2017/TE on the European External Action Service’s refusal to grant public access to two reports on inspections carried out in the EU Delegation to Albania: https://www.ombudsman.europa.eu/en/decision/en/94052.