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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 complainant sought public access to the annual report on the implementation of the Permanent Structured Cooperation (PESCO) of the EU in 2020.

The European External Action Service (EEAS) disclosed introductory and general statements from the report and redacted the remaining parts. It said that disclosure of the redacted parts could undermine the protection of the public interests as regards international relations and as regards defence and military matters.

The inspection of the document confirmed that the report contains highly sensitive information liable to jeopardise defence and military matters. The Ombudsman found that full disclosure of the information contained in the document would allow hostile third parties and entities to anticipate the resources the EU will be able to deploy and to improve their own capabilities in order to counteract the EU’s external political and strategic approach. The Ombudsman also found the EEAS’s reliance on the international relations exception to be convincing. Thus, the Ombudsman concluded that the EEAS was justified in refusing access and closed the inquiry finding no maladministration.

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 case concerned a request for access to a public call for tenders for an EU funded project that was investigated by the European Anti-Fraud Office. OLAF had argued that providing the complainant with the call (which is already in the public domain) would damage its decision-making process and the purpose of its investigations because it would allow the complainant to identify the project in question and therefore the subject matter of the investigation. The Ombudsman´s inquiries team asked OLAF to clarify how its decision making process and the purpose of its investigations could be damaged when the call was public and the investigation was closed in 2019.

Taking into account the arguments put forward by OLAF in its reply to the Ombudsman´s inquiries team, the Ombudsman agreed that the disclosure of the call would undermine OLAF´s decision-making process and the purpose of its investigations. Therefore, the inquiry was closed with a finding of no maladministration.

The case concerned how the European Border and Coast Guard Agency (Frontex) handled multiple requests for public access to documents made by a single applicant. Frontex considered that the scope of the complainant’s multiple requests, which had been made in close temporal proximity, was too extensive to be processed in parallel. It therefore proposed, as a fair solution, to put them in a queue and process them in turn. The complainant did not agree to this approach.

The Ombudsman noted that it was not clear how extensive the scope of the complainant’s requests was and how much work it would entail to assess whether the documents concerned can be released. She proposed that Frontex should immediately recommence processing the complainant’s access requests, beginning with the most urgent one, as indicated by the complainant during the inquiry. She also proposed that Frontex provide the complainant with a list of all documents at issue to enable him to determine the priority of each request.

Frontex accepted the Ombudsman’s proposal and provided the complainant with a reply to the indicated access request shortly thereafter.

The Ombudsman welcomed Frontex’s response to her proposal for a solution and closed the case, calling on Frontex to make every effort to ensure that the complainant’s access requests are now dealt with quickly. The Ombudsman also encourages Frontex, in an effort to avoid delays, to improve its communication with applicants when attempting to find a fair solution on how to process extensive requests.

The cases concerned two requests for public access to documents detailing Europol’s contractual relations and communications with two companies providing a data analysis platform for the Agency. Europol refused public access, in part or in full, to most of the documents identified in the first request, arguing mainly that disclosure would undermine the protection of the public interest as regards public security. Europol refused public access to all the documents identified in the second request in order to protect public security and its internal decision-making process.

On the basis of an inspection of the requested documents, the Ombudsman considered that most of the information they contained would, if disclosed, be likely to undermine the protection of the public interest as regards public security. The Ombudsman did not consider that there were grounds to continue her inquiry as regards the very limited information that was not covered by that exception.   

While the Ombudsman identified a number of shortcomings in how Europol had dealt with the matter, overall she concluded that there was no maladministration by Europol in refusing public access to the documents at issue.