COMPLAINT: 2038/2021/DL

Case title: The refusal by the European External Action Service to give public access to documents related to the appointment of an EU Ambassador

Date: Thursday, 13 January 2022

Remote inspection arrangements and physical location

Present

The European External Action Service

Acting Head of Division, EEAS SG.AFFGEN.2 - Parliamentary Affairs

Ombudsman coordination, EEAS SG.AFFGEN.2 - Parliamentary Affairs

Legal Advisor, SG.AFFGEN.1 - Legal Affairs

Policy Officer, RM.HR.2.SEC1 - Management and Temporary Agents

Policy Officer, SG.2 - Parliamentary Affairs

European Ombudsman

Mr O’REGAN Fergal, Chief Legal Expert, Directorate of Inquiries

Ms KING Jennifer, Legal Expert, Directorate of Inquiries

MS GEHRING Michaela, Inquiries Officer, Directorate of Inquiries

Ms LAERMANS Dorien, Inquiries Officer, Directorate of Inquiries

Purpose of the inspection of documents and the meeting

The purpose of the meeting was to inspect the documents to verify whether the European External Action Service (EEAS) was justified in applying the exceptions under the EU rules on public access to documents^[1] as set out in its ‘confirmatory decision’.

In addition, the Ombudsman’s inquiry team wanted to obtain additional clarifications from the EEAS as to why it had refused access to the documents concerned, as it appeared that the lack of detailed reasoning put forward by the EEAS in its decision made it difficult for the complainant to understand why his application was refused in its entirety.

Introduction and procedural information

The Ombudsman’s inquiry team introduced themselves, thanked the EEAS representatives for meeting with them and set out the purpose of the meeting. The inquiry team outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the EEAS as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the prior consent of the EEAS.

The Ombudsman’s inquiry team explained that they would draw up a draft report on the meeting to be sent to the EEAS to ensure that it was factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report.

Information exchanged and documents inspected

Documents inspected

The Ombudsman’s inquiry team inspected the pre-selection report, the interview report, the assessment centre report and the final report. The EEAS representatives also provided certain documents that did not fall within the scope of the complainant’s request for public access.

Information about the refusal to disclose the documents

The EEAS’s representatives explained in detail how the selection process of an EU ambassador works, from the submission of the candidates’ applications until the official appointment by the High Representative. The list of shortlisted candidates is approved by the College of Commissioners before the final decision of the High Representative in his capacity as Appointing Authority. The representatives emphasized that there is a relatively high level of scrutiny of such appointments in comparison to those of other staff recruited at the same grade. For example, the selection panels are composed of representatives of the EEAS, the Commission, the General Secretariat of the Council and Member States. The appointment is followed by a press release and the publication of the ambassador’s short CV. In addition, the European Parliament may decide to exchange views with a successful candidate prior to their official taking up of duties, ensuring democratic scrutiny.

The EEAS representatives explained that their decision on the request for public access in this case was succinct as the legal principles and case law are clear in that, under Regulation 1049/2001, access should be refused if disclosure would harm the privacy and integrity of the individual.^[2] Furthermore, in accordance with case law^[3], the rule in the Staff Regulations that proceedings of Selection Boards shall be secret^[4] must be taken into consideration when determining whether, under Regulation 1049/2001, access would undermine the decision-making of an institution^[5]. Since the documents contain the names of all candidates and the qualitative assessment of those candidates, it had to refuse access.

The EEAS representatives considered that the complainant’s arguments did not demonstrate the existence of an overriding public interest in disclosure^[6], nor could it itself identify any overriding public interest in disclosure. While the appointment of an EU ambassador is important, there is, in its view, no public interest in seeing the evaluations of candidates.

The EEAS representatives also considered that the complainant’s arguments did not establish necessity, for a specific purpose in the public interest, of the transfer of the personal data to the complainant. They also argued that there was a reasonable and foreseeable risk that disclosure of the personal data of the candidates would undermine candidates’ legitimate interests.^[7]

The EEAS representatives further said that disclosure of the documents could hamper future selection proceedings, as it would reveal the types of questions asked and how the assessments  are conducted, thus allowing potential future candidates to undermine the effectiveness of the selection process.

Conclusion of the inspection of documents and meeting

The inquiry team thanked the EEAS representatives for their time and for the explanations provided, and the meeting ended.

 

Brussels, 19 January 2022

 

Fergal O’Regan                                                                                     Dorien Laermans

Chief Legal Expert                                                                                Inquiries Officer

 

[1] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049.

[2] Article 4(1)(b) of Regulation 1049/2001.

[3] See, for example, the Judgment of the General Court of 23 September 2020, ZL v EUIPO, Case T-596/18, paras 45-48: https://curia.europa.eu/juris/document/document.jsf?text=1049%2BEPSO&docid=231529&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=183081#ctx1.

[4] Article 6 Annex III of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the EU: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501#tocId201.

[5] Article 4(3), second indent, of Regulation 1049/2001.

[6] In line with Article 4(3), second indent, of Regulation 1049/2001.

[7] Article 4(1)(b) of Regulation 1049/2001 stipulates that “The institutions shall refuse access to a document where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data”. The Community legislation referred to is Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725. In line with Article 9(1)(b) of Regulation 2018/1725, an institution needs to follow a three-stage analysis in assessing whether transferring personal data would be lawful. First, it has to examine whether the requester has demonstrated the necessity of the transfer of the personal data to him for a specific purpose in the public interest. If this is the case, the institution has to establish whether the transfer could undermine the legitimate interests of the data subjects. Finally, the institution has to carry out a ‘balancing exercise’ between the interests of the person seeking access to the personal data and the legitimate interests of the data subjects.