The Ombudsman's recommendation

1. The Ombudsman made the following recommendation:

The European Commission should give access to the 35 documents not yet available to the complainant. Should the Commission consider that some redactions are nevertheless needed to protect personal data, it should give access to the remainder of the documents.

2. The Ombudsman’s detailed assessment can be found in her recommendation[1]. The essence of her assessment was as follows.

3. The Commission argued that disclosure of the documents would undermine the protection of court proceedings, which in this case meant the court proceedings between the complainant and the Commission[2].

4. These proceedings were ongoing at the time the Commission took its decision refusing access (since then, the court case ended, in September 2018).

5. The Ombudsman acknowledged that the documents are related to the subject matter of the ongoing court proceedings.

6. However the exceptions to public access are interpreted and applied strictly, so as not to frustrate the application of the general principle that the public should be given the widest possible access to documents held by the institutions. The Ombudsman believed that the Commission had not acted in compliance with this principle in this case.

7.  According to established case-law, this exception precludes the disclosure of the content of documents drawn up by the relevant institution solely for the purposes of specific court proceedings.[3]

8. However, the documents to which the complainant wants access were drawn up between November 2006 and August 2007, that is, several years before the complainant brought the relevant action for damages before the Court on 15 September 2011.

9. Thus, the Ombudsman considers that they were clearly not drawn up “solely for the purposes of court proceedings”.

10. Furthermore, the documents  were drawn up in connection with a purely administrative matter, namely the Commission’s assessment of Germany’s decision to prohibit the placing on the market of the complainant’s inhaler.

11. On inspecting the documents, the Ombudsman found that much of the content is completely uncontroversial, concerning mere facts rather than any assessment of (the absence of) extra-contractual liability which was the subject matter of the court proceedings. Other parts concern issues already settled by the Court of Justice or legal/political assessments of issues not covered by the court proceedings.

12.  Some of the withheld parts merely concern information provided by the complainant to the Commission, information on meetings with the complainant, e-mails from the complainant to the Commission and quotes from legislative acts. Other documents concern unrelated medical devices or indicate that a copy of a document would be sent to the complainant.

13. In view of the above, the Ombudsman did not accept that the Commission could reasonably have considered it necessary to withhold all this content from the complainant. Disclosure of such information could not compromise or otherwise undermine the protection of the (then) ongoing court proceedings.

The Ombudsman's assessment after the recommendation

14. In its refusal to accept the Ombudsman’s recommendation, the Commission essentially repeated its previously stated arguments. The Ombudsman thus maintains that the Commission’s original refusal was not justified, and confirms her finding that the European Commission acted with maladministration by not granting access to the documents in this case.

15. In addition, once the court proceeding had ended, the Ombudsman would have expected the Commission to actively reconsider its refusal to grant public access to the documents.  She regrets that the Commission has not done this.

16. In light of the Commission’s insistence, when reviewing past refusals of requests for public access to documents, on not taking into account new facts or a change of circumstances following its original decision, the Ombudsman deems it more efficient to suggest to the complainant that he can now submit to the Commission a renewed request for access to the documents. The decision on any such new request must take the changed circumstances into account and should obviously be dealt with promptly, in accordance with the provisions of Regulation 1049/2001.

Conclusion

Based on the inquiry, and following the Commission’s failure to accept her recommendation, the Ombudsman closes this case with the following conclusion:

By not granting any access, not even partial access, to the documents at the time of its original decision, the Commission violated the complainant’s right of public access to documents. This constituted maladministration.

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

 

Emily O'Reilly

European Ombudsman

Strasbourg, 03/12/2018

 

[1] https://www.ombudsman.europa.eu/en/recommendation/en/86684

[2] “The institutions shall refuse access to a document where disclosure would undermine the protection of (...) - court proceedings (...)”, Article 4(2), second indent, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.

[3] Judgment of the Court of First Instance of 12 September 2007, API v Commission, T-36/04, ECLI:EU:T:2007:258, paragraph 60-61; Judgment of the Court of First Instance of 6 July 2006, Franchet and Byk v Commission, Joint Cases T-391/03 and T-70/04, ECLI:EU:T:2006:190, paragraph 88-90; Judgment of the Court of First Instance of 7 December 1999, Interporc v Commission, T-92/98, ECLI:EU:T:1999:308, paragraph 40-41.