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The case concerned the partial refusal by the Executive Agency for Small and Medium-sized Enterprises (EASME) to grant public access to documents related to a project funded under Horizon 2020. The documents in question concerned deliverables and amendments to the original grant agreement. EASME provided partial access to three amendments to the grant agreement but refused to disclose the rest of the documents identified, relying on the need to protect personal data, the need to protect the commercial interests of the beneficiary, and the need to protect its decision-making.

The Ombudsman’s inquiry team inspected the documents. On this basis, the Ombudsman considered that EASME’s refusal to disclose the documents concerning deliverables was justified, given that the deliverables in question had been deemed confidential in the grant agreement. Concerning EASME’s partial refusal to disclose the amendments made to the grant agreement, the Ombudsman proposed that EASME grant wider access, given that the beneficiary itself had published the original grant agreement and that there were therefore no commercial interests to be protected with respect to those parts of the agreement which had remained unchanged.

In reply, the European Innovation Council and SMEs Executive Agency (EISMEA), which succeeded and replaced EASME on 1 April 2021, maintained the view that access had to be denied at the time. However, it stressed that a new public access request would be assessed in light of the new circumstances, which may lead to a wider disclosure of the documents at issue.

The Ombudsman regrets that EISMEA did not accept her proposal for a solution and finds its explanations unconvincing. She finds it sufficient to put these views on the record and to close the case, given that pursuing it would have no practical implications for the complainant. She trusts that EISMEA will deal promptly with any follow-up request from the complainant to the documents in question and, more generally, will uphold its publication obligations in line with the grant agreement. This will help secure the right of the public to be adequately informed about the implementation of EU funded projects.

The case concerns the Council of the EU’s refusal to grant full public access to documents concerning trilogue negotiations between the European Parliament, the Council of the EU and the European Commission on draft legislation for vehicle emissions. The Council granted access to only parts of the documents identified, arguing that disclosing the remaining parts could undermine the ongoing decision-making process.

The Ombudsman’s inquiry team examined unredacted copies of the documents in question and found that the redacted parts contain the Council’s negotiating strategy - its ’red lines’, points where it could be flexible and the Council’s fall-back options - in ongoing negotiations with Parliament. The inquiry team confirmed that these redacted parts have not been shared with Parliament.

The Ombudsman acknowledges that releasing details on the Council’s negotiating strategy, when no provisional agreement on the relevant parts of the draft legislative text has been reached, could seriously undermine its negotiating position. The Ombudsman therefore takes the view that there is a duly justified case to refuse access to the redacted text at this stage in the negotiations. However, once provisional compromises are found in trilogue meetings, the relevant parts of the documents could be disclosed.

In the course of the inquiry, the Council provided the Ombudsman with three additional documents, which it had shared with Parliament ahead of the first, second and third trilogue on this file. The Ombudsman’s inquiry team examined these additional documents and found that they contain the provisional compromises found between the co-legislators, as well as the evolving positions, proposals and comments of the three institutions in relation to those parts of the legislative text on which no agreement has yet been found. In line with recent case-law of the General Court, these are trilogue documents that should be made public upon request, so as to enable the public to participate in trilogue negotiations and to influence the legislative process at this crucial stage.

As the complainant’s access request covered all documents related to the ongoing trilogue negotiations on motor vehicle emissions, the Ombudsman proposes that the Council now identifies the three additional documents as falling within the scope of the complainant’s request and, in line with the General Court’s case-law, fully discloses them.

The Catalan Ombudsman submitted a query to the European Ombudsman concerning Spain’s obligations to protect habitats and biodiversity, notably in relation to the Ebro Delta, which suffered damages during Storm Gloria (January 2020). The query was made in the context of an own-initiative investigation by the Catalan Ombudsman concerning the lack of timely action by the Spanish authorities to properly plan measures for the protection of the Ebro River and Delta.