Strasbourg, 28 September 2007

Dear Mr Z.,

On 27 March 2006 , acting on behalf of Friends of the Earth-CEPA ("the complainant"), you submitted a complaint to the European Ombudsman against the European Investment Bank ("EIB") concerning its handling of the complainant's application for access to documents.

On 19 June 2006, I forwarded your complaint to the President of the EIB and asked the EIB to submit an opinion.

The EIB sent its opinion on 28 September 2006. I forwarded it you with an invitation to make observations, which you sent on 29 November 2006.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

By e-mail of 17 January 2005, the complainant requested from the European Investment Bank ("EIB") copies of the Finance contract FI N° 20.175 "Slovak Republic - Slovakian Railways Modernisation Project: Finance Contract between the European Investment Bank and Zeleznice Slovenskej Republiky (ZSR)", which was signed in Bratislava on 23 July 1999, including all the annexes and amendments thereto (the "Finance Contract").

By e-mail of 2 February 2005, the EIB rejected the request on the basis of Article 4.1.vii of the EIB's "Rules on Public Access to Documents" (the "Old Rules)(1) and informed the complainant that disclosure would be contrary to the professional ethics, rules and practices of the banking sector. The complainant was also informed that the EIB would have no objection to the disclosure of the Finance Contract by the borrower or the Slovak Government.

By letter of 1 April 2005 to the EIB's Secretary-General, the complainant appealed against the above rejection. In the appeal, the complainant mainly pointed out that (i) the documentation related to the modernisation project was published on the borrower's website, and (ii) an earlier version of the Finance Contract was publicly available on the Slovak Government's website, which clearly indicated that the Slovak parties did not wish to keep the Finance Contract confidential.

In his reply of 12 May 2005, the EIB's Secretary-General insisted on the applicability of the exception under Article 4.1.vii of the Old Rules and stated that the Old Rules (i) take into account the principles and limits laid down in Regulation 1049/2001(2) and (ii) are the sole legal reference for deciding on disclosure. The Secretary-General also reiterated that the confidentiality of the Finance Contract derives from the banking nature of the contractual relationship between the EIB and the Slovak parties which, however, are free to waive this protection.

On 27 March 2006, the complainant submitted a complaint to the European Ombudsman.

It alleged, in substance, that the EIB wrongly rejected its request for access to documents and failed to assess the possibility of partial disclosure.

In support of that allegation, it argued that (i) Directive 2003/4/EC(3) does not contain any general exception for banking activities and that there is no reason why different provisions should apply to the EIB's activities, and (ii) by delegating the responsibility for disclosure to the Member States' authorities, the EIB discriminates against EU citizens who do not speak the language of the Member State concerned. In addition, it referred to the Convention on access to information, public participation in decision-making and access to justice in environmental matters(4) (the "Aarhus Convention"), which provides for an individual right of citizens to have access to environmental information.

The complainant also alleged that, in its rejecting decisions, the EIB failed to indicate the available possibilities for appeal, thereby violating Article 19 of the European Code of Good Administrative Behaviour.

The complainant claimed that the EIB should grant it access to the requested documents.

It also claimed that the EIB should, in conformity with Article 19 of the European Code of Good Administrative Behaviour, pay more attention to indicating the possibilities for appeal available to unsuccessful applicants for access to documents.

THE INQUIRY

The opinion of the EIB

The Ombudsman forwarded the complaint to the EIB. In his letter, the Ombudsman also referred to the document "PUBLIC DISCLOSURE POLICY: Principles, rules, and procedures" of 28 March 2006 (the "New Rules")(5) which was, at the time of the Ombudsman's request, available only on the EIB's website. In this regard, the Ombudsman asked the EIB to explain the relationship between the New Rules and the Old Rules (which were published in Official Journal of 27 November 2002).

In summary, the EIB's opinion was as follows:

As regards the complainant's allegation concerning, in substance, (a) the EIB's wrongful rejection of the request for access and its failure to assess the possibility of partial disclosure, and (b) the related claim, the EIB referred to the Old Rules as well as to the New Rules. It pointed out that these two sets of rules provide for an exception to disclosure for information of the kind covered by the obligation of professional secrecy, in compliance with national laws and Community law, in particular Article 287 of the EC Treaty.

The EIB went on to state that, as a bank, it must ensure mutual trust with its counterparts which have the legitimate right to expect that it will act within the established legal framework and will not divulge information protected by the obligation of banking confidentiality.

The EIB explained that it was for the above reasons that the complainant's request for access to the Finance Contract was denied under Article 4.1.vii of the Old Rules as then applicable. It insisted that, as in any banking relationship, the Finance Contract, was considered confidential in the interest of the customer, who normally retains the right to waive that protection. The EIB added that point 28 of the New Rules re-inforces this position by explicitly mentioning the non-disclosure of finance contracts(6).

The EIB referred to the complainant's argument that Directive 2003/4/EC(7) does not contain any general exception for banking activities and that there is no reason why different provisions should apply to the EIB's activities. In this regard, the EIB recalled that Directive 2003/4/EC (i) incorporates at national level a number of requirements of the Aarhus Convention(8) and (ii) is addressed to the Member States and not to the Community institutions, which is why the Directive is not directly applicable to the EIB. However, the EIB stated that it would apply the provisions of the recently adopted Regulation 1367/2006(9).

The EIB also replied to the complainant's argument that, by delegating the responsibility for disclosure to the Member States' authorities, the EIB discriminates against EU citizens who do not speak the language of the Member State concerned. In this regard, the EIB noted that, according to the New Rules(10), it is committed to promoting access to information and to a language policy that responds to the needs of the public. In line with this commitment, the EIB's statutory documents are available in all official EU languages, as are other key documents, such as codes of conduct, that have a particular importance for the public. Other documents are available at least in English, French and German, and translation into other languages can be considered whenever a wide interest arises for a particular document. However, it cannot be the EIB's role to intervene in language problems between some EU citizens and a given Member State.

The EIB responded to the allegation that it had failed to indicate the possibilities for appeal available to the complainant, as well as to the related claim. In this regard, the EIB pointed out that both the "Code of Good administrative behaviour for the staff of the European Investment Bank in its relations with the public" and the New Rules contain specific provisions indicating to all interested parties, including the complainant, the available possibilities for appeal. Moreover, it is the EIB's intention to give precise indications to unsuccessful applicants in the future, with respect to access to documents.

Finally, at the Ombudsman's request, the Commission explained the relationship between the New Rules (which were, at the time of his request, available only on the EIB's website) and the Old Rules (which were published in the Official Journal). In this regard, the EIB clarified that, as stated in the introduction of the New Rules, the New Rules supersede the Old Rules. The New Rules were, at the time of the EIB's opinion, being translated into all the Community languages after which they would be published in the Official Journal.

The complainant's observations

In its observations, the complainant disagreed with the EIB's opinion as regards the first allegation concerning the wrongful rejection of its request for access, and maintained its related claim.

First, the complainant emphasised that its request for access was rejected in 2005 when the Old Rules were in force. Therefore, the complainant stated that its allegations concern the legal situation that pertained in 2005 and took the view that the EIB's references to the New Rules are not relevant in the present case.

According to the complainant, the EIB's reference to the obligation of professional secrecy as laid down in Article 287 of the EC Treaty is a very general statement which does not explain the legal basis for the EIB's refusal to grant access.

The complainant stated that it interprets Article 4.1.vii of the Old Rules as providing a legal ground for denying access to information in circumstances where disclosure would cause harm to a legitimate commercial interest of the EIB's client. According to the complainant, the EIB did not consider this argument in its opinion.

The complainant went on to say that the EIB should use the procedure of partial disclosure whenever it has a legitimate reason to protect certain information in a document due to commercial reasons, but should not deny, as a matter of principle, disclosure of the document in question.

The complainant agreed with the EIB's argument that Directive 2003/4/EC is not directly applicable to the EIB.

The complainant pointed out, however, that, in its complaint to the Ombudsman, it referred also to the principles set out in the Aarhus Convention which was ratified not only by the Member States in their capacity as the EIB's shareholders, but also by the European Community, by means of Council Decision 2005/370/EC. According to the complainant, the EIB's interpretation of Article 4.1.vii of the Old Rules would practically lead to the conclusion that all banking activities are exempt from the provisions of the Aarhus Convention and applicable EC legislation, since no consideration of the individual case would take place.

Further, the complainant welcomed the EIB's statements concerning its commitment to promote access to information and a language policy that responds to the needs of the public, as well as its willingness to publish its key documents in all official languages of the EU. However, the complainant pointed out that the above statements do not respond to its argument that, by delegating the responsibility for disclosure to the Member States' authorities, the EIB discriminates against EU citizens who do not speak the language of the Member State concerned. The complainant maintained its position that the EIB is shifting responsibility for disclosure to its client, but at the same time states, in its opinion, that it is not its role to intervene in language problems between some EU citizens and a given Member State. According to the complainant, this means that (i) the citizens of the EU in reality do not have any possibility to obtain information on the conditions of the EIB's public money lending, unless they are from the borrowing country, and (ii) contrary to its statements, the EIB is not accountable to all citizens of the EU.

Finally, as regards the EIB's reply to the second allegation concerning its failure to indicate the possibilities for appeal available to the complainant, the complainant welcomed the EIB's intention to give, in the future, precise indications to unsuccessful applicants for access to documents. In the complainant's view, this should be part of the EIB's active role in promoting good administration standards towards greater openness and building up public trust in the European institutions and bodies.

THE DECISION

1 Alleged wrongful rejection of the request for access to the Finance Contract, and the related claim

1.1 On 17 January 2005, Friends of the Earth-CEPA ("the complainant") requested from the European Investment Bank ("EIB") copies of the Finance contract FI N° 20.175 "Slovak Republic - Slovakian Railways Modernisation Project: Finance Contract between the European Investment Bank and Zeleznice Slovenskej Republiky (ZSR)", which was signed in Bratislava on 23 July 1999, including all the annexes and amendments thereto (the "Finance Contract").

On 2 February 2005, the EIB rejected that request on the basis of Article 4.1.vii of the EIB's "Rules on Public Access to Documents" (the "Old Rules").

The EIB also informed the complainant that (i) disclosure would be contrary to the professional ethics, rules and practices of the banking sector. In its 12 May 2005 reply to the complainant's appeal, the EIB emphasised that the confidentiality of the Finance Contract derives from the banking nature of the contractual relationship between the EIB and the Slovak parties. The EIB also stated that (ii) it would have no objection to the disclosure of the Finance Contract by the borrower or the Slovak Government, pointing out that they are free to waive the above protection.

In its complaint to the European Ombudsman, the complainant alleged, in substance, that the EIB wrongly rejected its request for access to documents and failed to assess the possibility of partial disclosure. The complainant claimed that the EIB should grant it access to the requested documents.

In support of the above allegation, the complainant argued that Directive 2003/4/EC(11) does not contain any general exception for banking activities. The complainant also argued and that there is no reason why different provisions should apply to the EIB's activities, and that, by delegating the responsibility for disclosure to the Member States' authorities, the EIB discriminates against EU citizens who do not speak the language of the Member State concerned. The complainant also referred to Aarhus Convention which provides for an individual right of citizens to have access to environmental information.

1.2 In its opinion, the EIB pointed out that, as a bank, it must ensure mutual trust with its counterparts, which have the legitimate right to expect that it will act within the established legal framework and will not divulge information protected by the obligation of banking confidentiality. In this regard, the EIB noted that both the Old Rules and the "PUBLIC DISCLOSURE POLICY: Principles, rules, and procedures" of 28 March 2006 (the "New Rules") provide for an exception to disclosure for information covered by the obligation of professional secrecy.

The EIB maintained its position that the complainant's request for access was correctly rejected on the basis of Article 4.1.vii of the Old Rules(12) as then applicable. Furthermore, it insisted that the Finance Contract in the present case, as in any banking relationship, is confidential, in order to safeguard the interests of the customer which normally retains the right to waive that protection. The EIB added that point 28 of the New Rules re-inforces this position by explicitly mentioning the non-disclosure of finance contracts(13).

The EIB also stated that Directive 2003/4/EC(14) is addressed to the Member States and not to the Community institutions, which is why the Directive is not applicable to it, but added that it would apply the provisions of Regulation 1367/2006(15).

Finally, the EIB rejected the complainant's argument that, by delegating the responsibility for disclosure to the Member States' authorities, it discriminated against EU citizens who do not speak the language of the Member State concerned. In this regard, the EIB stated that it is committed to promoting access to information and to a language policy that responds to the needs of the public, and noted that, for documents which are not available in all official EU languages, a translation can be considered whenever a wide interest for a particular document arises. However, the EIB pointed out that it cannot be its role to intervene in language problems between some EU citizens and a given Member State.

1.3 At the outset, the Ombudsman takes the view that the submissions of the parties in the present case make it necessary for him to examine the adequacy of the reasons the EIB has given in its communications of 2 February and 12 May 2005 to the complainant, as well as in its opinion on the complaint, with an eye to justifying the non-disclosure of the Finance Contract in question, and in particular the reason of professional secrecy applicable in the banking sector.

1.4 In this respect, the Ombudsman first recalls the dual role which the EIB fulfils, according to the relevant case-law: on one hand, as a standard banking institution, it acts with complete independence in the financial markets(16), while, on the other hand, it is a Community body(17).

1.5 The Ombudsman notes that, in the context of its (banking) professional secrecy, the EIB invoked Article 287 of the EC Treaty which provides that

"[t]he members of the institutions of the Community, the members of committees, and the officials and other servants of the Community shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components."

Although this provision does not apply directly to the EIB, which is not a Community institution within the meaning of Article 7 of the EC Treaty but a Community body, it appears that, by invoking it, the EIB emphasized its role as a Community body in terms of the concept of professional secrecy. The Ombudsman thus finds the EIB's reference to the above provision relevant and reasonable.

1.6 The Ombudsman recalls, however, that in Case T-198/03, Bank Austria Creditanstalt AG v Commission, the Court of First Instance makes clear that the legislator has already carried out a balancing exercise and that a prohibition on the disclosure of information "of the kind covered by the obligation of professional secrecy" is not a bar to publication of information with which the public has the right to be acquainted through the right of access to documents(18).

The Court of First Instance concluded that "[i]t follows that, in so far as such provisions of secondary legislation prohibit the disclosure of information to the public or exclude public access to documents containing it, that information must be considered to be covered by the obligation of professional secrecy. Conversely, to the extent that the public has a right of access to documents containing certain information, that information cannot be considered to be of the kind covered by the obligation of professional secrecy." (Emphasis added).

The Ombudsman therefore considers that a decision whether, in this case, the EIB has rightly refused to grant access to the document in question has to be analysed in light of the then applicable EIB rules on public access to documents.

1.7 As correctly pointed out by the complainant, since its request for access was rejected in 2005 when the Old Rules were in force, its allegations must be understood as referring to the legal situation in force in 2005. The Ombudsman notes therefore that, in its decisions of 2 February and 12 May 2005, the EIB correctly invoked the Old Rules as a basis for these decisions.

1.8 Moreover, the Ombudsman notes that Article 4.1.vii of the Old Rules states that:

"[a]ccess to all or part of a document shall be refused where its disclosure would undermine the protection of the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector" (emphasis added).

By way of comparison, the Ombudsman notes that point 28 of the New Rules states that: "[i]nformation typically forming part of the Bank's confidential relationship with its business partners includes the financing request by a project promoter, loan pricing information, and the Finance Contract. The Bank does not object to project promoters, borrowers, or other competent parties making information available on their relationship and arrangements with the EIB." (Emphasis added).

1.9 In light of the above, the Ombudsman considers that, by referring in its opinion on the complaint to the New Rules, the EIB better clarified, and allowed for a better understanding of, the practice followed by it under the Old Rules. The Ombudsman understands in this sense that, by explicitly mentioning the non-disclosure of finance contracts in point 28 of the New Rules, the EIB re-inforces its position as regards the interpretation given by it to Article 4.1.vii of the Old Rules in the reply to the complainant's request for access.

Moreover, the Ombudsman understands that, by referring to point 28 of the New Rules, the EIB indicated that the practice adopted by it was that, in light of the confidential banking relationship between itself and its business partners, finance contracts would not be disclosed under any circumstances, that is, the possibility of partial disclosure would not be assessed. Thus, the position of the EIB towards the complainant's request for access, as expressed in the EIB's decisions of 2 February and 12 May 2005, reflected its practice as regards the policy on public access, which is now codified in the New Rules.

1.10 The Ombudsman therefore concludes that, in order to justify its non-disclosure of the Finance Contract to the complainant, the EIB referred to Article 4.1.vii of the Old Rules, in particular to the obligation of professional secrecy applicable in the banking sector where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector. In this regard, the Bank, when referring to the New Rules, also implied that finance contracts are covered by professional secrecy as a matter of principle. The EIB further clarified that, for those reasons, its counterparts in their banking relationship with the EIB, have the legitimate right to expect that, as a bank, it will act within the established legal framework and will not divulge information protected by the obligation of banking confidentiality.

1.11 The Ombudsman considers reasonable to accept that, for the reasons mentioned in the above paragraph, the EIB, acting in its role as a standard banking institution, is obliged to respect banking professional secrecy and that it is the its prerogative to decide whether or not a document contains confidential information(19).

1.12 The Ombudsman notes the complainant's references to the Aarhus Convention , and its statement that the EIB's interpretation of Article 4.1.vii of the Old Rules would practically mean that all banking activities are exempt from the Aarhus Convention and applicable EC legislation, since no consideration of the individual case would take place. In this regard, the EIB stated, in its opinion, that it would apply the provisions of Regulation 1367/2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies(20).

As regards the Aarhus Convention, the Ombudsman points out that it was ratified by the European Community by means of Council Decision 2005/370/EC(21). However, the Ombudsman also notes that, according to the Declaration by the European Community in accordance with Article 19 of the Aarhus Convention, which constitutes an Annex to Council Decision 2005/370/EC, "(…) the Community reiterates its declaration made upon signing the Convention that the Community institutions will apply the Convention within the framework of their existing and future rules on access to documents and other relevant rules of Community law in the field covered by the Convention." (Emphasis added). Thus, when approving the Aarhus Convention, the European Community clearly qualified its commitment to apply the Aarhus Convention, through its institutions, to be limited by the framework of the institutions' rules on access to documents.

Moreover, the Ombudsman recalls that Regulation 1367/2006(22), which is binding on the EIB and which, as stated in its opinion, it commits itself to applying, deals with access to "environmental information" as defined in Article 2(1)(d) thereof. That provision corresponds, in substance, to Article 2(3) of the Aarhus Regulation. The Ombudsman notes that Regulation 1367/2006 has been applicable only since 28 June 2007, and thus does not apply to the complainant's request of 17 January 2005 for access to the Finance Contract.

Notwithstanding the above, the Ombudsman also notes the complainant's observation that the EU citizens in reality do not have any possibility to obtain information "on the conditions of [the] Bank's public money lending" unless they are from the borrowing country . The information "on the conditions of [the] Bank's public money lending" does not seem to fall under any of the definitions of "environmental information" within the meaning of Article 2(1)(d) of Regulation 1367/2006. In the Ombudsman's view, this observation of the complainant could be therefore understood as undermining its invoking the Aarhus Convention in support of its arguments in the present case.

1.13 Finally , the Ombudsman notes that, in its observations, the complainant accepted the EIB's argument that Directive 2003/4/EC is not directly applicable to the EIB. Therefore, the Ombudsman does not consider it necessary to address this issue in more detail.

1.14 On the basis of the considerations in points 1.4 to 1.13 above, the Ombudsman takes the view that the EIB adequately relied on Article 4.1vii of its Old Rules and provided adequate reasons for rejecting the complainant's request for access and, as a result, does not find any instance of maladministration as regards this aspect of the complaint.

1.15 In this context, and even if he found no maladministration, the Ombudsman points out, however, that, as a Community body, the EIB should act transparently and be at the service of the citizens. The Ombudsman notes the EIB's statement, made in its e-mail of 2 February 2005 to the complainant (which reflects the practice now codified in point 28 of the New Rules)(23) and in its opinion on the complaint, that it would have no objection to the disclosure of the Finance Contract by the borrower or the Slovak Government. The Ombudsman notes in this respect the complainant's argument concerning possible language problems which a member of the general public may encounter in addressing a borrower (or the relevant Member State's authorities) in the context of the EIB's above policy. The Ombudsman will make a further remark below in this regard.

2 Alleged failure to indicate the possibilities for appeal available to the complainant, and the related claim

2.1 The complainant alleged that, in its decisions refusing to grant the complainant access to the requested documents, the EIB failed to indicate the available possibilities for appeal, thereby violating Article 19 of the European Code of Good Administrative Behaviour. The complainant claimed that the EIB should, in conformity with Article 19 of the European Code of Good Administrative Behaviour, pay more attention to indicating the possibilities for appeal available to unsuccessful applicants for access to documents.

2.2 In its opinion, the EIB pointed out that both the "Code of Good administrative behaviour for the staff of the European Investment Bank in its relations with the public" (the "EIB Code")(24) and the New Rules contain specific provisions indicating to all interested parties, including the complainant, the available possibilities for appeal . The EIB added that it envisaged giving, in the future, precise indications to unsuccessful applicants for access to documents.

In its observations, the complainant welcomed the EIB's above commitment.

2.3 The Ombudsman recalls that, according to Article 19(1) of the European Code of Good Admin istrative Behaviour(25), "[a] decision of the Institution which may adversely affect the rights or interests of a private person shall contain an indication of the appeal possibilities available for challenging the decision. It shall in particular indicate the nature of the remedies, the bodies before which they can be exercised, as well as the time-limits for exercising them."

2.4 The Ombudsman notes that, neither in its e-mail of 2 February 2005 rejecting the complainant's request, nor in its reply of 12 May 2005 to the complainant's appeal, did the EIB indicate the possibilities for appeal available to the complainant.

The Ombudsman notes the EIB's reference, contained in its opinion on the present complaint, that both the EIB Code(26) and the New Rules(27) contain specific provisions indicating to all interested parties, including the complainant, the available possibilities for appeal. However, the Ombudsman considers that the fact that the EIB Code and the New Rules contain provisions regarding the possibilities for appeal cannot, per se, compensate for the absence of an indication of such possibilities for appeal in the EIB's e-mail of 2 February 2005 and its letter of 12 May 2005 to the complainant.

2.5 Given, however, that (i) in its opinion, the EIB also stated that it envisaged giving precise indications, in the future, to unsuccessful applicants for access to documents and (ii) the complainant has, in its observations, welcomed the EIB's above commitment, the Ombudsman considers that no further inquiries are justified as regards this aspect of the complaint.

3 Conclusion

The Ombudsman concludes that his inquiry into the present complaint has not revealed an instance of maladministration. The Ombudsman therefore closes the case.

The President of the EIB will be informed of this decision.

Further Remark

In its endeavour to be citizen friendly, the EIB could consider contacting the national authorities in the future, in order to ascertain the possibility of total or, at least, partial disclosure of the finance contracts to which citizens request that it grant them public access. In the Ombudsman's view, the EIB could, in this way, usefully contribute to mitigating language problems that some citizens may encounter in addressing the corresponding requests for public access to the authorities of the Member State concerned.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2002 C 292, p. 10. According to Article 4.1.vii of the Old Rules, " [a]ccess to all or part of a document shall be refused where its disclosure would undermine the protection of the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector".

(2) 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) Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, OJ 2003 L 41, p. 26.

(4) UNECE (United Nations Economic Commission for Europe) Convention on access to information, public participation in decision-making and access to justice in environmental matters, done at Aarhus, Denmark on 25 June 1998, published in OJ 2005 L 124, p. 4. The Aarhus Convention was approved, on behalf of the European Community, by Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, OJ 2005 L 124, p. 1.

(5) The New Rules are available on the EIB's website (http://www.eib.org/Attachments/strategies/public_disclosure_policy_en.pdf).

(6) In point 28, under the heading "Constraints", the New Rules contain the following exception from the principle of disclosure: "Information typically forming part of the Bank's confidential relationship with its business partners includes the financing request by a project promoter, loan pricing information, and the Finance Contract. The Bank does not object to project promoters, borrowers, or other competent parties making information available on their relationship and arrangements with the EIB."

(7) See note 3.

(8) See note 4.

(9) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, OJ 2006 L 264, p. 13.

(10) See point 24 of the New Rules.

(11) Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, OJ 2003 L 41, p. 26.

(12) Article 4.1.vii of the Old Rules reads: "Access to all or part of a document shall be refused where its disclosure would undermine the protection of the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector;"

(13) In point 28, under the heading "Constraints", the New Rules contain the following exception from the principle of disclosure: " Information typically forming part of the Bank's confidential relationship with its business partners includes the financing request by a project promoter, loan pricing information, and the Finance Contract. The Bank does not object to project promoters, borrowers, or other competent parties making information available on their relationship and arrangements with the EIB."

(14) See note 11.

(15) See note 9.

(16) Case 85/86 Commission v Board of Governors of the EIB [1988] ECR 1281, paragraph 28.

(17) Case 85/86 Commission v Board of Governors of the EIB, cited above, paragraph 24.

(18) Case T-198/03 Bank Austria Creditanstalt v Commission [2006] ECR II-1429, paragraphs 72, 74 and 75 of the judgment.

(19) Case 53/85 Akzo Chemie v Commission [1986] ECR 1965, paragraph 29.

(20) See note 9.

(21) See note 4.

(22) See note 9.

(23) "(…) The Bank does not object to project promoters, borrowers, or other competent parties making information available on their relationship and arrangements with the EIB."

(24) OJ 2001 C 17, p. 26.

(25) The Code is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).

(26) See Article 16 of the EIB Code which provides as follows:

"1. Members of staff shall act with respect for the public's rights. However, if a person considers that the replies given violate his/her rights or interests, such person shall be entitled to lodge a complaint.

2. All complaints must be made in writing, within two months of the date of the correspondence which is the subject of the complaint, to the Secretary-General of the Bank.

3. Furthermore, in accordance with Article 195 of the EC Treaty, any citizen of the Union or any natural or legal person residing or having its registered office in a Member State shall be entitled to lodge a complaint with the European Ombudsman."

(27) See points 104 - 108 of the New Rules, which provide as follows:

Point 104: "In the event of a total or partial refusal following a confirmatory application, the Bank shall inform the applicant of the remedies open to him or her, namely making a complaint as described below in the chapter on ‘Provisions for appeal’."

Point 105: "The provisions for appeal also apply if the Bank fails to reply within the prescribed time limits or if a person considers that a reply is unsatisfactory."

Point 106: "Members of the public who feel that a request for information was not dealt with by EIB staff according to the standards and procedures formally adopted by the Bank may lodge a formal appeal with the EIB's Secretary General. Appeals must be made in writing, within 20 working days of the date of the correspondence, which is the subject of the complaint. The Bank will acknowledge the receipt of the appeal without delay and the Secretary General's reply will be provided no later than 20 working days following receipt of the appeal."

Point 107: "In accordance with Article 195 of the EC Treaty, EU citizens or any natural or legal person residing or having its registered office in a EU Member State can also refer their appeal to the European Ombudsman (…)".

Point 108: "For cases where citizens or residents from non-EU countries wish to appeal against non-disclosure of EIB information, and whose cases are not being handled by the European Ombudsman, appeal can be made to the Bank's Inspector General (…)".