Background to the complaint

1. In June 2018, the complainant contacted the European Commission and asked it to send him copies of one document and specific parts of three other documents. The documents in question were letters sent by the Commission to the Permanent Representation of the Czech Republic to the European Union and to the Czech Office for the Protection of Competition in the context of two state aid investigations concerning the Czech Post.

2. Since the Commission refused to disclose these documents^[1], the complainant turned to the Ombudsman in February 2019.

The inquiry

3. The Ombudsman opened an inquiry focusing on whether the Commission’s decision to deny access to the documents was justified.

4. In the course of the inquiry, the Commission sent to the Ombudsman its reply on the complaint. It also shared with the Ombudsman confidential copies of the documents in question^[2].

Arguments presented to the Ombudsman

5. The Commission maintained its refusal to disclose the documents. It considered that disclosure would undermine the protection of the purpose of investigations^[3], negatively affect commercial interests^[4] and would jeopardize the willingness of the Czech Republic to cooperate with the Commission’s state aid investigations. This applies even after the relevant state aid investigations have been closed.

6. The Commission mainly argued that its decision was correct at the time it was adopted in that it relied on a general presumption that disclosure would undermine the purpose of investigations. The documents belonged to a single category of documents, that is, documents related to two state aid investigations. Thus, the Commission was not required to examine the documents in question individually. The Court’s case-law authorises the Commission to reply to such global requests in a manner equally global.

7. The Commission added that the complainant did not contest that the documents are covered by this general presumption. The Commission said that the complainant did not demonstrate an overriding public interest in disclosure either.

8. The Commission referred to its detailed reasoning on which it had based its refusal. In its initial decisions, the Commission mainly said that:

• The documents concerned were part of files regarding state aid investigations.

• Disclosure would undermine the protection of the purpose of investigations.

•  The purpose of the relevant exception is to ensure that the Commission is able to make the Member States and businesses comply with their legal obligations. The Commission stressed the need not to reveal the Commission’s strategy, preliminary assessment and the planning of procedural steps.
•  The Commission handles, in the context of state aid investigations, sensitive information including information regarding the economic activities of businesses. Disclosing such information could jeopardize the will of the Member State and of the economic operators concerned to cooperate with the Commission. The protection of investigations and of commercial interests are thus related.
•  The Commission explained the relationship between Regulation 1049/2001 and Regulation 2015/1589^[5] and said that Regulation 2015/1589 does not authorise the parties concerned, other than the Member State, to have access to the file. Disclosure thus may not be made under Regulation 1049/2001.
•  Referring to the case-law of the Court^[6], the Commission considered that the documents were manifestly fully covered by the presumption that their disclosure would undermine the purpose of investigations. The Commission considered that the presumption may apply even after the investigation had been terminated^[7]

• Disclosure would undermine the protection of commercial interests.

•  The Commission said that economic entities have a legitimate interest that third parties do not receive their important business information. Moreover, the Commission’s documents contained assessment that was in the nature of sensitive business information.
•  The requested documents are part of the state aid files. They have not been published and are known by a limited number of persons only.
•  The requested documents contain business information and sensitive information about the market. They have a commercial value. Their disclosure would damage the business interests of the entities concerned.

•  Referring to case-law of the Court^[8], the Commission considered that the fact that the investigation had been terminated is not relevant for the exceptions in Article 4(2) of Regulation 1049/2001.

•  The Commission added that the complainant had not proved that the presumption does not apply to some of the documents. The Commission said that the presumption also applies to partial disclosure. No partial disclosure could thus be made.

The Ombudsman's assessment

9. The Ombudsman examined the documents concerned by this case and confirmed that the Commission’s reasoning is justified and reasonable.

10. The four documents in question relate to two state aid investigations, were drawn up in their context and thus form part of the relevant state aid files. As such, the Commission was authorised to rely on general presumptions in deciding not to disclose them to the complainant. Moreover, the documents contain different categories of information that were correctly identified by the Commission and that fall under the exceptions the Commission invokes.

11. The Ombudsman carefully examined the specific content of these documents and agrees with the Commission that their disclosure would undermine the protection of the purpose of investigations and legitimate commercial interests, even after the relevant investigations have been closed. The Ombudsman also agrees that no meaningful partial disclosure is possible. The Ombudsman considers that this position is in line with the case-law of the Court of Justice governing access to state aid documents as it currently stands^[9].

12. For these reasons, the Ombudsman concludes that there was no maladministration.

Conclusion

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

There was no maladministration.

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

 

Marta Hirsch-Ziembińska

Head of Inquiries and ICT - Unit 1

Strasbourg, 07/08/2019

 

[1] The procedure was governed by Regulation 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 L 145, 31.5.2001, p. 43 : https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1564921750392&uri=CELEX:32001R1049

[2] According to Article 4.8 of the Ombudsman’s Implementing Provisions, when an EU institution provides to the Ombudsman confidential documents, the Ombudsman will not disclose them, either to the complainant or to the public, without the prior agreement of the institution.

https://www.ombudsman.europa.eu/en/legal-basis/implementing-provisions/en

[3] Article 4(2), third indent of Regulation 1049/2001.

[4] Article 4(2), first indent of Regulation 1049/2001.

[5] Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union, OJ L 248, 24.9.2015, p. 9: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1550833138415&uri=CELEX:32015R1589

[6] C-139/07 P, European Commission v. Technische Glaswerke Ilmenau GmbH, judgment of the Court of 29 June 2010, C-271/15 P Sea Handling SpA v. European Commission, judgment of the Court of 14 July 2016, C-477/10 P, European Commission v. Agrofert Holding a.s., judgment of the Court of 28 June 2012, T-210/15 Deutsche Telecom A.G. v. European Commission, judgment of the General Court of 28 March 2017, T-451/15 AlzChem AG v. European Commission, judgment of the General Court of 7 September 2017.

[7] T-380/08, The Netherlands v. European Commission, judgment of the General Court of 13 September 2013.

[8] T-210/15 Deutsche Telecom A.G. v. European Commission, judgment of the General Court of 28 March 2017.

[9] See, in particular, cases: C-139/07 P, European Commission v. Technische Glaswerke Ilmenau GmbH, judgment of the Court of 29 June 2010, C-271/15 P Sea Handling SpA v. European Commission, judgment of the Court of 14 July 2016, T-451/15 AlzChem AG v. European Commission, judgment of the General Court of 7 September 2017, T-440/17, Arca Capital Bohemia a.s. v. European Commission, judgment of the General Court of 11 December 2018, T-441/17 Arca Capital Bohemia a.s. v. European Commission, judgment of the General Court of 11 December 2018, C-666/17 AlzChem AG v. European Commission, judgment of the Court of 13 March 2019.