Decision in case 1686/2017/THH on the European Commission’s handling of a request for public access to documents on industry lobbying on the Preparatory Action on Defence Research and the EDRP
Caso 1686/2017/THH - Aperto(a) il Venerdì | 29 settembre 2017 - Decisione del Venerdì | 06 luglio 2018 - Istituzione coinvolta Commissione europea (Riscontrati estremi di cattiva amministrazione)
The case concerned the European Commission’s handling of the complainant’s request for access to documents regarding meetings between Commission officials and the defence industry. The Commission took three months to answer the complainant’s initial request. The complainant turned to the Ombudsman after waiting a further six months for the Commission’s reply to his request for a review of its decision.
In the course of the Ombudsman’s inquiry, the Commission replied to the complainant’s request for review. The Ombudsman examined the grounds put forward by the Commission for only partially disclosing some of the documents requested.
The Ombudsman closed the inquiry with a finding of maladministration as regards the delays in the Commission’s response.
Background to the complaint
1. On 7 February 2017, the complainant submitted to the Commission’s Directorate General for the Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) a request for access to documents, under Regulation 1049/2001, on behalf of Vredesactie, a Belgian non-governmental organisation.
2. The request concerned the following documents:
- a list of meetings of DG Growth (former DG Enterprise and Industry) officials and/or representatives (including the Commissioner and the Cabinet) and representatives of individual companies, including lobby consultancies and law firms, and/or industry associations, in which the upcoming Preparatory Action (PA) on Defence Research and the European Defence Research Programme (EDRP) were dealt with (since 2012);
- minutes and other reports of these meetings; [and]
- all correspondence (including emails) between DG Growth officials and/or representatives (including the Commissioner and the Cabinet) and representatives of individual companies (including lobby consultancies and law firms) and/or industry associations, in which the PA on Defence Research and the EDRP were dealt with (between January 2012 and today).
3. The Commission sent an acknowledgement of receipt and registered the request on 14 February 2017, with a time limit for a reply of 7 March 2017. As the complainant had not specified a cut-off date for the documents request, it was considered to cover documents held up to the date at which the request was made. However, citing the fact that the request concerned a large number of documents, the Commission first extended the time limit to 28 March 2017, and then delayed its response a further three times on 28 March 2017, 11 April 2017 and 28 April 2017.
4. On 2 May 2017, the Commission sent its initial reply to the complainant. It granted only partial access.
5. On 12 May 2017, the complainant asked the Commission to review its reply (through a so-called “confirmatory application”), putting forward detailed arguments challenging the use of the exceptions to disclosure. The complainant argued that not all relevant documents within the scope of the request had been disclosed and requested an extension of the timeframe (“temporal scope”) of the request for review up to the date of DG GROW’s reply.
6. Having acknowledged receipt of this request, the Commission again did not meet the initial time limit of 7 April 2017, and delayed the reply twice more. The complainant requested an update on the status of his request on 31 August 2017, to no avail.
7. Having received no response from the Commission, the complainant turned to the European Ombudsman on 27 September 2017.
8. The Ombudsman opened her inquiry with a letter to the Commission requesting that it reply to the complainant.
9. In the course of her inquiry, the Ombudsman received the review decision from the Commission, sent to the complainant on 5 February 2018, and the complainant’s comments on that review decision.
The Ombudsman’s assessment
The delay in responding to the request for access to documents
10. The Ombudsman notes that the Commission took three months to reply to the complainant’s initial request for access to documents, and a further ten months to respond to the confirmatory application.
11. In its communications with the complainant, and in its correspondence with the Ombudsman, the Commission emphasised the large number of documents related to the request, and the complexity and sensitive nature of the request, to explain this delay.
12. The Ombudsman, however, considers that the delays for both the initial response and the confirmatory decision go well beyond the deadlines imposed upon the Union institutions by Regulation 1049/2001 for replying to requests for access to documents, even in exceptional cases. Indeed, while the Regulation allows for extensions of time for processing an initial application or a review which concerns a very long document or a very large number of documents, this is limited to an additional 15 working days. Furthermore, detailed reasons must be given.
13. The Ombudsman therefore finds that the egregious delay in the Commission’s response to the complainant’s request for documents constitutes a clear case of maladministration.
The access provided by the Commission to the documents requested
I. Documents considered within the scope of the request
14. The Commission’s review decision excludes 32 of the 45 documents initially identified by DG GROW from the scope of the request, on the grounds that they neither constitute correspondence with the industry nor minutes or other reports of meetings with the industry. The excluded documents include 29 briefings, which are considered internal documents, one internal speech, one invitation addressed to Member States only, and one email addressed to Member States only.
15. The Ombudsman accepts the Commission’s assessment on this matter, given that the complainant did not frame his request in terms of documents related to meetings or communications between the Commission and the defence industry.
16. In its review decision, the Commission indicated that it had not identified any additional documents within the scope of the request. In his request for review, the complainant referred to four meetings for which no documents were listed, either in the register of Commission Documents or in the initial reply of DG GROW. The Commission confirmed that these meetings did take place, but that no documents existed for these meetings.
17. The Ombudsman accepts that the Commission cannot be required to disclose documents which are not in its possession, and notes that a presumption of legality exists regarding the non-existence of a document, meaning that there is a presumption of truthfulness for a claim by the institutions that a document does not exist.
18. The complainant identified a further three meetings (two of which had not been included in the Commission’s list) the minutes of which had not been disclosed by the Commission. The Ombudsman does not consider that this matter merits further inquiry, as the complainant has already received the documents in question from the European Defence Agency, in response to a separate access to documents request.
19. With regard to the complainant’s request to have the timeframe of his request extended, for the purposes of the review, to the date of DG GROW’s reply, the Commission argues that it cannot do so, as Regulation 1049/2001 only permits for a review of the position taken in the initial reply.
20. While this may be the strict legal position, the Ombudsman considers that, given the unusually long delay in the Commission’s response, some flexibility in this regard would be consistent with the principles of good administration. For example, the request to extend the temporal scope could have been treated as a new request for documents covering the additional period.
II. Disclosure of the names of participants in meetings between the Commission and the defence industry
21. The Ombudsman welcomes the Commission’s decision to revise the position taken in the initial decision and disclose the names of undertakings and their CEOs who met with members of the senior management of the Commission.
22. The Commission has maintained its decision to redact personal data in 10 of the documents still considered to be within the scope of the request. The Commission considers that the conditions required by the Bavarian Lager case for a transfer of personal data to be justified, namely that the applicant demonstrates the necessity of disclosure and that there be no reason to believe that the data subject’s legitimate interests might be prejudiced, have not been met.
23. The Commission clarified that this case law informs its policy not to disclose personal data of staff who are not senior management, or individuals who are not the main representatives of external entities.
24. With regard to the condition of necessity, the Commission considers that the argument put forward by the complainant, that the information is part of research on the extent of the defence industry’s influence on EU policy making and therefore serves the public interest by contributing to an informed public debate on this matter, is too general in nature.
25. Concerning the potential prejudice to the data subjects’ legitimate interests, the Commission highlights that disclosure of the protected identities, given the sensitive nature of the file, would entail a real and non-hypothetical risk for the Commission staff concerned of being subject to unsolicited external contacts.
26. The Ombudsman agrees that the complainant has not met the required necessity test for obtaining disclosure of the redacted names. Indeed, the disclosure of the names of the undertakings represented and of their CEOs is sufficient and proportionate for attaining the complainant’s objective of knowing which industry organisation is lobbying the Commission.
The significant delay by the Commission in responding to the complainant’s request for access to documents, at both the initial and the review stage, constitutes maladministration.
However, as the complainant eventually received a suitable response, she considers it appropriate to make no recommendation.
The complainant and the European Commission will be informed of this decision.
 Case T-468/16, Verein Deutsche Sprache v Commission, ECLI:EU:T:2018:207, paragraph 35.
 Case C-28/08 P, European Commission v Bavarian Lager, ECLI:EU:C:2010:378.