The background to the complaint

1. The complaint concerns a partial refusal by the European Commission to grant public access to policy notes drafted and used by the Commission's Directorate General for Trade (DG TRADE) to guide its staff when conducting trade law investigations[1].

2. The complainant requested the Commission to give him public access to the policy notes on 25 June 2007.The Commission refused to grant the request.

3. The complainant then requested the Commission to review its refusal to grant public access to the documents. The Commission responded by first noting that the request covered 78 'policy notes' containing technical advice to case-handlers who carry out anti-dumping investigations. It then stated that it could grant partial access to six of the 78 policy notes[2]. However, it refused to grant access to the remaining policy notes by invoking the exceptions to public access set out in the third indent of Article 4(2) and the second paragraph of Article 4(3) of Regulation 1049/2001. The third indent of Article 4(2) of Regulation 1049/2001 allows institutions to refuse access to a document if its disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding interest in disclosure. The second paragraph of Article 4(3) of Regulation 1049/2001 allows institutions to refuse access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, even after the decision has been taken, if disclosure would seriously undermine the institution's decision-making process. As regards both exceptions, the Commission argued that disclosure of the policy notes would place the Commission's investigation strategy in the public domain. Disclosure would thus be highly detrimental to the Commission's decision-making process. The Commission also considered that there was no overriding public interest in disclosure.

4. The complainant then turned to the Ombudsman.

The subject matter of the inquiry

5. The complainant alleges that the Commission wrongly refused to grant access to internal guidelines.

6. The complainant claims that the Commission should grant unrestricted access to the internal policy notes.

7. The Ombudsman received the complaint on 22 January 2008.

8. The Ombudsman received the Commission's opinion on 9 June 2008 and the complainant's observations on the 11 August 2008.

9. The Commission submitted a second opinion on 25 February 2009 and the complainant submitted its observations on this on 5 May 2009.

The inquiry

10. The Ombudsman carried out an inspection of the documents on 8 December 2010.

11. On 25 October 2010, the Ombudsman wrote to the Commission asking for further comments on its opinion. The Commission responded on 19 April 2011.

12. In a letter to the Ombudsman prior to the submission of its first opinion, the Commission noted that the complainant represented the applicants in a case pending before the General Court, case T-459/07 Hangzhou Duralamp Electronics Co Ltd. The Commission noted that the applicants in that case based their action for annulment, in part, on the Commission's refusal to give the applicants access to the same internal guidelines at issue in the present Ombudsman inquiry. The Commission considered that it would be premature to discuss the issue of access to the requested documents in the present inquiry until the General Court had decided on the applicants' request for the same documents. On 11 July 2013, the General Court ruled in Case T-459/07, Hangzhou Duralamp Electronics Co., Ltd. v Council.[3]

13. In his complaint to the Ombudsman, the complainant argued that the Commission has not proven that it was reasonably foreseeable, and not purely hypothetical, that a protected interest would be detrimentally affected by the disclosure of the requested documents. According to the complainant, the Commission does not provide concrete evidence as to how the disclosure of each individual document would specifically and effectively undermine the purpose of a Commission investigation. He argues that the Commission refers to the documents in the abstract and as a single category.

14. The complainant also argued that there was an overriding public interest in the disclosure of the documents. He based this assertion on the fact that the General Agreement on Tariffs and Trade (GATT) requires the publication of all administrative rulings of general application pertaining to: the classification or valuation of products for customs purposes; rates of duty; taxes or other charges; requirements, restrictions or prohibitions on imports or exports; or the transfer of payments. He added that a review of the six documents already disclosed to him demonstrates the importance of 'policy notes' for interpreting trade defence instruments. He emphasised the fact that the documents disclosed have a mandatory tone and contain precise instructions. He insisted that they cannot, therefore, be viewed as mere tools for the purposes of internal reflection.

15. He added that other members of the WTO publish such policy notes, thereby facilitating compliance with their trade law rules.

16. He noted that it is the policy of other Directorates General of the Commission to make their internal guidelines public.

The Ombudsman's analysis and conclusions

A. Allegation of wrongful refusal to grant access to documents

Arguments presented to the Ombudsman

17. He also argued that, in the absence of public access to the policy notes, stakeholders will not be able to comply with the Commission's trade law rules.

18. He concluded by stating that the Commission evades the scrutiny of the European Parliament and Council by failing to make the guidelines public.

19. In a letter to the Ombudsman prior to submitting an opinion, the Commission noted that the complainant represented the applicants in a case pending before the General Court, case T-459/07 Hangzhou Duralamp Electronics Co Ltd., and that the applicants in that case based their action for annulment on the refusal to provide access to the same internal guidelines. The Commission therefore considered that it would be premature to discuss the issue of access to the requested documents in the present inquiry until the General Court decided on the applicants' request for the same documents.

20. The Commission later submitted its opinion to the Ombudsman.

21. In relation to the arguments concerning the GATT, the Commission argued that the documents requested only contain internal opinions and advice addressed to case-handlers in DG TRADE. They reflect past experience and aim to ensure the Commission's anti-dumping investigations are consistent and effective. The Commission stated that the documents do not have any legal effect and do not create any new rights or obligations. They are, it insisted, mere guidance documents for case-handlers. Consequently, the Commission argued, they do not constitute "administrative rulings of general application", as referred to in Article X of GATT. It insisted that there was no obligation to publish such documents. As regards the complainant's argument that other WTO members release such documents, the Commission notes that the complainant fails to identify which particular documents are published by other WTO members.

22. Concerning the complainant's argument that the absence of public access to the policy notes renders stakeholders incapable of complying with the rules imposed by the Commission, the Commission argued that it is not imposing any such rules through the policy notes. It noted that the policy notes are not adopted by the Commission as an institution and they cannot be regarded as expressing the position of the Commission. Furthermore, it added, there is no obligation for DG TRADE to produce such notes or to have them approved by the EU legislator.

23. As regards guidelines made public by other Directorates-General of the Commission, the Commission noted that, for example, the guidelines of DG Competition are prepared specifically with the view to publishing them. They are adopted by the Commission in the form of a Communication, and are clearly addressed to the stakeholders and the wider public. They are incomparable to the documents concerned by the complainant's request, the purpose of which is to provide internal advice to case-handlers in DG TRADE. The Commission further notes that it has, when considered appropriate, published guidelines on trade defence matters for the information of stakeholders and the general public.[4]

24. The Commission also noted that, as with any other public administrative body, it needs a certain amount of "space to think", in order to ensure free and frank internal discussions. If the requested 'policy notes' were to be disclosed, the authors of these notes would take the risk of disclosure into account in the future. As a consequence, the authors of the notes may cease to contribute any view that might involve a political or legal risk. This would deprive the Commission of the benefit of their honest opinion, free of all external constraints and pressures. The effectiveness of the Commission's investigations in anti-dumping matters would thereby be undermined. The Commission referred to the Court of First Instance judgment in Case T-403/05 MyTravel,[5] to demonstrate that such a risk is reasonably foreseeable and not purely hypothetical.

25. The complainant, in his observations on the Commission's opinion, reaffirmed his statement that the policy notes contain general, as well as specific and mandatory, instructions. He argued that the ability of interested parties to understand how the Commission exercises its discretion constitutes an overriding public interest in disclosure.

26. The complainant understood that the Commission agrees that Article X of the GATT 1994 binds it. He added that the WTO Panel in the Argentina Hides[6] case held that rules of an administrative nature constitute rules of general application.

27. In response to the Commission statement that the complainant fails to identify which particular documents are published by other WTO members, the complainant contended that the Commission has a whole sector dedicated to monitoring the use of trade measures by developing countries. He argued that the Commission ought to understand the type of guidelines they publish.

28. The complainant added that in certain countries, parties in trade law cases and their lawyers can access confidential information via an Administrative Protective Order. In the EU, however, the relevant information is kept secret; rendering public access to the guidelines even more important.

29. With regard to the issue of the Commission's need for "space to think", the complainant pointed out that another Directorates-General, DG Competition, publishes informal staff papers. The complainant also drew attention to the publication of a Green Paper by DG Trade,[7] which considered, inter alia, transparency in investigations.

30. Finally, the complainant questioned whether the Council is aware of the Commission's guidelines. He queried how the Council can make decisions in dumping matters without access to the documents.

Further inquiries

31. The Ombudsman considered it necessary to request further information from the Commission, in order to determine why it found the MyTravel case law applicable.

32. The Commission responded, noting that the second paragraph of Article 4(3) of Regulation 1049/2001 only applies to very exceptional documents. The purpose of the second subparagraph of Article 4(3) is to protect an institution's internal deliberations. This provision replaced the initial proposal to exclude texts for internal use from the scope of the Regulation. Instead of excluding such texts, it was decided to set out a specific exception, whereby access to such texts could be refused, subject to an enhanced harm test and a public interest test. The Commission stated that the legislator did not intend to limit this exception to documents containing self-critical, speculative or controversial views.

33. The Commission also drew an analogy between the MyTravel judgement and the present case. It stated that the General Court in MyTravel considered it relevant that the documents could be used for the examination of similar merger cases in future. Similarly, in this case, the policy notes are guidance documents for case-handlers and may be re-used in similar cases.

34. The Commission notes that disclosing the contested documents would place the instructions, guidance and practical tips given to case-handlers in anti-dumping cases in the public domain. It argued that this may enable companies subject to investigations, and their legal counsel, to exploit this knowledge to their advantage: by devising strategies to anticipate steps or measures that the Commission could take in the course of the investigation, leading to the adoption of provisional anti-dumping duties and/or the submission of a proposal setting definitive anti-dumping duties by the Council. Disclosing the documents may therefore undermine both its capacity to investigate anti-dumping cases and to take the appropriate measures as a result.

35. Finally, the Commission agreed that there is a public interest in transparency of anti-dumping procedures. In this regard, the Commission has published guidelines on trade defence matters, in the interest of stakeholders and the general public. However, there is a difference between "administrative rulings of general application," which should be made public, and the policy notes, which are not rules that effect companies subject to anti-dumping investigations.

The Ombudsman's assessment

Relevance of pending case before the EU courts

36. The Commission, prior to submitting an opinion, informed the Ombudsman that the complainant in the present case before the Ombudsman is the lawyer representing the applicants in a pending court case, case T-459/07 Hangzhou Duralamp Electronics Co Ltd. v Council. The Commission highlighted that the applicants in that court case raise issues relating to access to the same internal guidelines as those at issue in the present case. The Commission therefore felt it would be premature to discuss the issue of access to the requested documents before the Court decided on case T-459/07 Hangzhou Duralamp Electronics Co Ltd. v Council.

37. The Ombudsman notes that on 11 July 2013 the General Court ruled in Case T-459/07, Hangzhou Duralamp Electronics Co., Ltd. v Council.

38. The Ombudsman notes that the applicant in Case T-459/07 argued that the institutions (i.e., the Commission and the Council) infringed its rights of defence by, inter alia, granting it only partial access to the Commission's internal anti-dumping guidelines.

39. The Ombudsman notes that a right of access to documents for the purpose of exercising rights of defence is, in substance, distinct from a right of public access to documents. A person requesting access to documents for the purpose of exercising rights of defence in an administrative procedure must demonstrate that granting access to the documents is necessary for the purpose of exercising that person's rights of defence in that administrative procedure[8]. Therefore such a right of access to documents is subjective in nature; the fact that a person can demonstrate that he/she must be given access to a document for the purpose of exercising his/her rights of defence does not imply that access should be given to any other person. In contrast, the right of public access exists irrespective of the use to which the documents will be put, by the person requesting access or by any other person. If public access to a document is given to one person requesting public access, it must also be given to any other person requesting public access to the same document. Furthermore, any limitations on the right of public access are governed solely by the exceptions to public access set out in Regulation 1049/2001.

40. While it was appropriate for the Ombudsman to await the Court's ruling in case T-459/07, Hangzhou Duralamp Electronics Co., Ltd. v Council, before adopting the present decision, the Ombudsman can now verify that the Court has not dealt with the issue of public access to the documents at issue in the present inquiry (the Court did, however, find that there existed no right of access to the documents at issue for the purposes of exercising rights of defence).[9]

41. It remains for the Ombudsman to decide whether public access should have been given to the documents in question.

Regulation 1049/2001

42. Article 15(3) of the TFEU provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph." Likewise, Article 42 of the Charter of Fundamental rights of the EU stipulates that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium."

43. The above rights were given effect by Regulation 1049/2001. Regulation 1049/2001 is intended, as is apparent from its fourth recital and from Article 1, to give the fullest possible effect to the right of public access to documents held by the EU institutions. However, Regulation 1049/2001 does provide that the right of public access to documents is subject to certain limitations, which are set out in Article 4 of Regulation 1049/2001. Since Article 4 of Regulation 1049/2001 derogates from the principle of the widest possible public access to documents, it must be interpreted and applied narrowly.[10] Disclosure can only be refused if the institution can show that it could specifically and effectively undermine the interest protected by the relevant exception.[11] Furthermore, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical.[12]

Article 4(2), third indent of Regulation 1049/2001

44. Article 4(2), third indent of Regulation 1049/2001 provides that access to a document can be refused where disclosure would undermine the protection of "the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure".

45. As regards the application of this exception, the complainant argues that DG TRADE refused access to the documents on the basis that they fell into a certain category of document. He argues that the Commission should have considered each document individually.

46. The Ombudsman first notes that it is not necessarily true that the Commission did not consider each document individually.

47. The Ombudsman notes that the Commission, in its response to the initial application, refused access to any of the requested documents. The letter setting out that refusal does not state that that the Commission carried out an individual assessment of the documents requested. Nor is there any information in that initial response to indicate that such an individual assessment was carried out.

48. However, in response to the confirmatory application, the Commission first identifies that the request relates to 78 documents. It then provided partial access to six of those documents. It also identifies, in general terms, the content of the remaining documents. It indicated that the 72 notes that were not eventually released concerned internal and inter-institutional procedural issues and various technical matters. It added that these technical matters were:

• the calculation of dumping and injury margins;
• monitoring clauses;
• timing of offers of undertakings and of their acceptance;
• anti-absorption requests and investigations;
• captive markets in the injury analysis;
• sampling in anti-dumping and anti subsidy investigations;
• calculation of minimum import prices;
• zeroing in undercutting and injury margin valuations;
• establishment of causation;
• disclosure of essential findings;
• the use of statistical information;
• termination without imposition of measures; and
• the definition of the Community industry for the injury investigation.

49. This would seem to indicate that the Commission did, in order to respond to the confirmatory application, review all the documents requested with the intention of verifying whether access should be given to any specific documents.[13]

50. The Commission did provide identical reasoning for denying access to 72 of the documents, and extracts of the partially disclosed documents. However, this fact, in itself, does not imply that the Commission did not review the entire 78 documents for the purpose of determining that an exception to public access applied to them.

51. The Ombudsman notes that, in principle, an EU institution may base its decisions to refuse access to documents on general presumptions which apply to certain categories of documents, since considerations of a similar kind are likely to apply to requests for disclosure relating to documents which are of the same nature.[14] Thus, for the purposes of interpreting the exception laid down in the third indent of Article 4(2) of Regulation 1049/2001, if a general presumption is deemed to exist that disclosure of the requested documents undermines the protection of the objectives of investigation activities, the Commission may, pursuant to the third indent of Article 4(2) of Regulation 1049/2001, refuse access to all the relevant documents of that same nature, without first making a concrete, individual examination of each of those documents.[15]

52. As regards the nature of the documents in the present case, the Ombudsman takes into account the decision of the General Court in case T-459/07, Hangzhou Duralamp Electronics Co., Ltd. v Council, which clarifies the Court's view on the nature of the internal guidelines at issue in the present case. The Court ruled that these are internal instructions only; that they are intended for the Commission officials responsible for anti-dumping cases; that they are indicative in nature; and that they comprised mainly technical guidelines. The Court stated that they are not binding on the Commission officials, they are devoid of any legal effect and they do not create any rights or obligations in respect of third parties[16].

53. Having inspected the documents, the Ombudsman can also confirm that all of the requested 'policy notes' in the present case do indeed contain internal advice[17] of a technical nature on certain anti-dumping matters, for the benefit of case-handlers when carrying out anti-dumping investigations.

54. While all of the documents are clearly of the same "nature", it remains to be examined whether a general presumption is deemed to exist that disclosure of documents of that specific nature undermines the protection of the objectives of investigation activities.[18]

55. The Ombudsman has already considered that internal documents relating to a specific investigation by DG Trade are covered by the exception set out in the third indent of Article 4(2) of Regulation 1049/2001, while that investigation is on-going.[19] The Ombudsman found that public access to such internal documents would be likely to modify the nature of the Commission's investigatory procedure and thus to undermine this procedure. He found that there should be a general presumption that disclosure of the internal documents drawn up in investigative proceedings would undermine the protection of these proceedings, while they are ongoing. The Ombudsman noted that although the internal documents requested were originally created for the purposes of an investigation leading to the adoption of a specific anti-dumping regulation, the same documents were subsequently used for an expiry review investigation, leading to the adoption of another anti-dumping regulation. Therefore the effect of disclosing the internal documents, originally drawn up for the purposes of one Commission investigation, could have undermined the execution of the future expiry review investigation. The Ombudsman also noted that Article 4(2), third indent of Regulation 1049/2001, does not refer to the risk of the disclosure of a document affecting the purpose of a single investigation, but rather the risk that disclosure of a document would affect the purpose of investigations (plural). In conclusion, the Ombudsman considers that if it is reasonably foreseeable, and not purely hypothetical, that individual documents, or a category of documents, could be used for subsequent investigations, and if public disclosure of such documents would risk undermining the purpose of such subsequent investigations, the institution concerned would be entitled to deny access to such documents.

56. The Ombudsman notes that the documents at issue in the present case do not concern any specific investigation by DG Trade, but rather all past, present and future trade defence investigations. While a strict standard needs to be applied when examining whether disclosure of a document undermines the purpose of inspections, investigations and audits under Article 4(2), third indent of Regulation 1049/2001, the Ombudsman considers that there is nothing to indicate that this risk could only be relevant if it concerns specific individual cases. While it would in all likelihood be easier to assess this risk in relation to documents concerning specific cases, this does not mean that such a risk cannot exist if a document concerns more than one case, or even a multitude of cases. On the contrary, if disclosure of a document would have negative consequences for a multitude of cases, disregarding such consequences for the sole reason that they are not limited to one specific case would deprive the relevant exception of its useful effect precisely when it is most needed.

57. The Commission specifically argues that disclosing the contested documents would introduce the instructions, guidance and practical tips given to case-handlers in anti-dumping cases into the public domain. It argues that this may enable companies subject to investigations, and their legal counsel, to exploit this knowledge to their advantage: by devising strategies to anticipate steps or measures that the Commission could take in the course of the investigation, leading to the adoption of provisional anti-dumping duties and/or the submission of a proposal setting definitive anti-dumping duties by the Council. Disclosing the documents may therefore undermine both its capacity to investigate anti-dumping cases and to take the appropriate measures as a result. The Ombudsman considers this argument to be convincing. Even though the Commission's statement is general in nature, it gives a sufficiently precise idea of the nature of damage that might impinge upon the Commission's capacity to conduct trade defence investigations if the documents were released. After carefully inspecting the documents, the Ombudsman agrees that such damage is reasonably foreseeable and not purely hypothetical. In arriving at this conclusion, the Ombudsman takes due account of the particularly sensitive nature of trade defence investigations. If DG TRADE struggles to verify facts and reach findings due to methods devised to disguise or cover these facts, the purpose of the investigation is clearly impeded. Such an eventuality would not serve the public interest.

58. Given that it has been established that the interest protected by Article 4(2), third indent of Regulation 1049/2001, is undermined by disclosure of the requested documents, it is unnecessary to examine if the disclosure would also seriously undermine the interests set out in Article 4(3) of Regulation 1049/2001, namely those interests related to the protection of the Commission's decision-making process.

Overriding public interest

59. Articles 4(2) and 4(3) of Regulation 1049/2001 provide that an institution may refuse a request to disclose a document to the public if an interest set out in those provisions applies, unless there is an overriding public interest in public access.

60. DG TRADE carries out tasks which significantly affect the interests of EU citizens, as decisions to use trade defence instruments impact upon the availability and the prices of products sold in the EU. Decisions to use trade defence instruments also impact upon the interests of EU producers, and therefore the interests of EU workers. Consequently, there is clearly a public interest in verifying that DG TRADE carries out its work properly.

61. Access to documents is certainly one means of allowing the public to verify and ensure that DG TRADE carries out its work properly. Therefore the provision of access to such documents carries a certain degree of public interest.

62. However, the fact that such an interest may exist does not establish that this interest overrides the interests protected by the exceptions set out in Regulation 1049/2001. This is particularly evident when it has been established that public access could lead to a less effective system of trade defence, as concluded in paragraph 58 above.

63. The Ombudsman also takes due account of the Commission's view that the documents at issue in the present case can be distinguished from the "guidelines" made public by other Directorates-General in the Commission. For example, the Commission notes that the guidelines of DG Competition are prepared specifically with the view to publishing them; are adopted by the Commission in the form of a Communication; and are clearly addressed to the stakeholders and the wider public. In contrast, the documents concerned by the complainant's request were drafted only for the purpose of providing internal advice to case-handlers in DG TRADE[20]. After inspecting the documents, the Ombudsman can confirm that the Commission’s description of the documents is accurate. The documents are not systematic in nature, as they cover a multitude of issues and are diverse in form and extent. Many of the documents contain alterations in the form of visible tracked changes. From a review of the documents, it is also unclear which internal advice remains valid at the present time (e.g. certain documents date back to 1997). It is likely that a review of such documents by members of the public would not lead to any accurate or comprehensive understanding of how DG TRADE carries out its tasks.

64. As regards the complainant's arguments that the documents should be made public because they constitute "administrative rulings of general application", the Ombudsman considers it sufficient to refer again to the ruling of the General Court in Case T-459/07, Hangzhou Duralamp Electronics Co., Ltd. v Council, where the Court stated that the guidelines at issue in the present case are internal instructions only, that they are intended for the Commission officials responsible for anti-dumping cases, that they are indicative in nature, and that they comprised mainly of technical guidelines.The Court stated that they are not binding on the Commission officials, they are devoid of any legal effect and they do not create any rights or obligations in respect of third parties.

65. In light of the above, the Ombudsman does not consider that there is any public interest which would override the public interest in non-disclosure of the documents.[21]

66. As regards the allegation and claim, the Ombudsman finds that there was no maladministration by the Commission.

Possibility of Rebuttal

67. The Court of Justice has stated that even if it is established that a general presumption applies to a category of documents, since considerations of a similar kind are likely to apply to requests for disclosure relating to documents which are of the same nature, this does not exclude the right of an interested party to demonstrate that a particular document,is not covered by that presumption.[22]

68. The General Court has implied that when an institution makes use of such a general presumption, the applicant may exercise its right of rebuttal in its confirmatory application, by requesting access to specific documents. The General Court has also implied that if a request for a specific document is made in a confirmatory application, the Commission will be bound to carry out a concrete, individual examination of that document in order to verify whether the general presumption (in this case, that their disclosure would undermine the purpose of the investigation) does in fact apply to that document.[23]

69. The Ombudsman is of the view that it is important that an applicant has at least a sufficient general knowledge of the identity and content of the requested documents in order to exercise this right of rebuttal. This would certainly be the case if the documents were already listed on a public register of documents or if the documents were listed in the response to the initial application. In the present case, the documents were not listed on a public register of documents and were not listed in the response to the initial application.

70. If an institution has not made use of a general presumption in its response to an initial application, but has rather carried out a concrete, individual examination of the requested documents, it would also be good administration for the institution to indentify the documents it has examined when responding to the initial application. This would allow the applicant to make an informed confirmatory application setting out why it considers the analysis of the institution to be inadequate.

71. In the present case, the Commission's response to the confirmatory application informed the complainant as to the number of policy notes falling within the scope of the request for public access, and the general content of the notes[24]. However, it would have been preferable if this information were provided to the complainant in response to the initial application, rather than in response to the confirmatory application. In addition, given that the documents do not appear to be listed in any public register of documents, it would have enhanced accessibility for citizens had the Commission listed, in the response to the initial application, the titles of the 78 documents eventually identified as falling within the scope of the request for public access. Such a step would have permitted the complainant to put forward arguments, in its confirmatory application, as regards why specific documents should be released. In this context, the Ombudsman finds it useful to make two further remarks.

72. While the Ombudsman considers that compliance with the further remarks made in the present case will improve how the Commission deals with future requests for public access, they do not imply that the Commission erred, in substance, as regards the refusal to grant full access to the requested documents. In making this finding, the Ombudsman notes that the complainant, despite having access to sufficient information in relation to the identity and general content of the documents when he made his complaint to the Ombudsman, has not put forward any convincing reasons as to why the Commission's argumentation in support of its refusal to grant more extensive public access to the policy notes is flawed.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There was no maladministration by the Commission.

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

Further remarks

With specific reference to the documents at issue in the present case, the Commission should ensure that it identifies on a public register the documents comprising its internal guidelines to staff on the use of trade defence instruments.

As a general rule, in the event that the Commission receives a request for public access to documents which are not yet listed on a public register of documents, it should, in the response to the initial application, identify the requested documents appropriately.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 30 September 2013

---

[1] The complainant represents two companies upon which the European Commission imposed anti-dumping duties.

[2] Policy notes 5/2000, 7/2001, 8/2001, 7/2002, 4/2003 and 3/2004.

[3] Not yet reported.

[4] Guidelines for the calculation of the. amount of subsidy in countervailing duty investigations (OJ C394, 17.12.98, p.6) and Commission Notice concerning the re-imbursement of anti-dumping duties (OJ C127, 29.5.2002, p.10).

[5] Case T-403/05 MyTravel Group plc v Commission [2008] ECR II-02027.

[6] The Ombudsman understands that the complainant refers to Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished Leather, WT/DS155/R and Corr.1, adopted 16 February 2001, DSR 2001:V, p. 1779.

[7] Europe's trade defence instruments in a changing global economy: A Green Paper for public consultation. COM(2006) 763.

[8] As regards anti-dumping procedures, the Court has stated that a company under investigation, which may directly and individually affect it, and entail adverse consequences for it, should be placed in a position, during the administrative procedure, in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (see, Al-Jubail Fertilizer v Council, [1991] ECR I-3187 paragraph 17).

[9] Article 1.3. of the Ombudsman's Statute states that "the Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling." Article 2.7. of the Ombudsman's Statute states that "when the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed definitively."

[10] See, for example, Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 63 and Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, paragraph 36.

[11] See Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, paragraph 49; and Case C-139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I-5885, paragraph 53.

[12] Case T-36/04 API v Commission [2007] ECR II-3201, paragraph 54.

[13] While the complainant's request is voluminous, comprising 3 large binders of documents, it is not unreasonable to expect that the Commission would have reviewed all the documents in order to process the request for public access, especially since the documents are in regular use by DG TRADE staff. The Ombudsman notes in the respect, that the Commission (correctly) did not seek to apply Article 6.3 of Regulation 1049/2001, which states that in the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.

[14] However, it is incumbent on the institution to establish in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose. Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Turco v Council of the European Union [2008] ECR I-4723, paragraph 50.

[15] See Joined Cases T-494/08 to T-500/08 and T-509/08 Ryanair v Commission [2010] ECR II-5723, paragraphs 70 and 71.

[16] See case T-459/07, Hangzhou Duralamp Electronics Co., Ltd. v Council, not yet reported, at paragraph 117.

[17] The internal nature of the documents is also reinforced by the fact that some of the documents even contain tracked changes, with deleted text still visible on the tracked documents. Some of the documents also contain comments and advice of individual identifiable members of staff.

[18] All of the documents are marked "confidential". In many cases, the documents are also marked "Limited" (the term "limited" is commonly used within the EU institutions to refer to documents to which access is limited). Documents marked "limited" contain the specific statement the document is for internal use only and is protected under Article 4 of Regulation 1049/2001. It would appear, from the copies inspected by the Ombudsman, some of which predate the adoption of Regulation 1049/2001, that this classification was assigned to the documents at a point in time after they were first drafted. In any event, the Ombudsman notes that the specific declarations by the Commission that a series of documents are "confidential" is not, in itself, relevant as regards the determination that the documents should not be disclosed under Regulation 1049/2001. That determination can only be based on an assessment of the specific content or of the nature of those documents.

[19] See Decision of the European Ombudsman closing his inquiry into complaint 1039/2008/FOR against the European Commission available at http://www.ombudsman.europa.eu/cases/decision.faces/en/5404/html.bookmark

[20] The Commission further notes that it has, when considered appropriate, published guidelines on TDI matters for the information of stakeholders and the general public Guidelines for the calculation of the. amount of subsidy in countervailing duty investigations (OJ C394, 17.12.98, p.6) and Commission Notice concerning the re-imbursement of anti-dumping duties (OJ C127, 29.5.2002, p.10).

[21] Guidelines for the calculation of the. amount of subsidy in countervailing duty investigations (OJ C394, 17.12.98, p.6) and Commission Notice concerning the re-imbursement of anti-dumping duties (OJ C127, 29.5.2002, p.10).

[22] See Commission v Technische Glaswerke Ilmenau, cited above, at paragraph 62.

[23] See Joined Cases T-494/08 to T-500/08 and T-509/08 Ryanair v Commission, cited above, at paragraph 80.

[24] See paragraph 49 above.