Made in accordance with Article 4(3) of the Statute of the European Ombudsman^[1]

Background

1. The right of the public to access documents held by the EU institutions is set out in the EU Treaties and the Charter of Fundamental Rights.[2] It plays a crucial role in ensuring that the EU institutions operate in a transparent manner, thereby reinforcing the legitimacy of and public trust in the EU. The general rules giving effect to this right are set out in the EU legislation on public access to documents (Regulation 1049/2001).[3]

2. Should an EU institution refuse access to documents a citizen has asked for, by invoking one of the exceptions under Regulation 1049/2001, the citizen may then request that the institution review its decision (this is referred to as a ‘confirmatory application’).

3. There are two means of redress once the institution has rejected, in full or in part, a confirmatory application or where the institution does not reply within the applicable time lines. Those seeking public access to documents may bring the matter before the Court of Justice of the EU or turn to the European Ombudsman.

4. Complaints alleging lack of transparency invariably account for the highest proportion of cases dealt with by the Ombudsman. To help the public and the EU institutions in this area, the Ombudsman has published an online guide in 24 languages, with a more detailed resource for experts.[4]

5. To ensure meaningful access, EU institutions should deal with all requests for public access as swiftly as possible. Delays in granting access may undermine the ability of those individuals that request documents to participate in the democratic process of the EU. Individuals might, for example, seek access to documents to be able to follow in detail ongoing legislative or international negotiations or to participate in EU decision or policy making. This could include interest groups or civil society organisations seeking to participate in ongoing policy debates or decision-making processes or journalists working to hold public bodies to account.

6. Accordingly, Regulation 1049/2001 provides that requests for public access should be handled “promptly”. There is a time limit of 15 working days for an institution’s decision, both on the initial access request and on confirmatory applications where the institution has initially refused (full) access. Each time limit can be extended in “exceptional cases” by another 15 working days, which means that EU institutions are expected to take a decision, at initial and at confirmatory stage respectively, within a maximum of 30 working days. Failure to comply with the time limits laid down by the legislature cannot be good administration.

7. In recent years, complaints to the Ombudsman showed that there have been significant delays before the Commission decided on requests for public access to documents.

8. Against that background, the Ombudsman opened an own-initiative inquiry to ascertain whether delays were systemic in the Commission’s handling of requests for public access to documents.

The inquiry

9. The Ombudsman asked the Commission to provide statistical data for the year 2021 on: (i) the number of requests and confirmatory applications it received, and (ii) the time it took to deal with these requests, including how often it exceeded the maximum time limit of 30 working days.[5]

10. The Ombudsman inquiry team inspected over 60 Commission files concerning access to documents requests, including requests where the Commission had complied with the time limits and where it had incurred a significant delay. The Ombudsman then asked the Commission to reply to additional questions.

11. The Ombudsman inquiry team also held a meeting with staff from the Commission to obtain additional information. [6]  

The Ombudsman's findings leading to a recommendation

12. The Ombudsman’s inquiry showed that there were delays, including significant delays, in particular in dealing with requests at confirmatory stage. In 2021, while at the initial stage delays occurred in around 16% of cases, 85% of all confirmatory applications incurred delays. Over 60% of all confirmatory applications were dealt with in more than 60 working days, despite the legal time limit being 15 working days, which can be extended - in exceptional cases - by another 15 working days. Failure to comply with the time limits established by the EU legislature was thus systemic.  

 

 

 

 

 

 

 

13. Against that background, the Ombudsman held that the systemic and significant delays incurred by the Commission in processing requests for public access to documents amount to maladministration. The Ombudsman recommended that the Commission correct that situation as a matter of priority.[7]

14. In addition, the Ombudsman made a series of suggestions to address particular issues in the handling of access requests, which she identified in her inquiry and which can lead to delays. She pointed out, however, that tackling the major issue of delays requires a more fundamental rethink within the Commission about how it plans to adhere to the time lines set out by the legislature.

15. The particular issues the Ombudsman noted and which she addressed by way of suggestions included:

• Insufficient proactive transparency: The Ombudsman suggested that the Commission continue its attempts to anticipate policy areas/topics that may generate particular public interest, and ensure proactive transparency in relation to these policy areas/topics. This is one of the primary means of obviating the need for individuals to submit requests and wait for the documents to be disclosed.
• Insufficient human resources: The Ombudsman suggested that the Commission dedicate more resources to dealing with confirmatory applications, considering the increasing number of applications and the fact that the Commission does not meet the prescribed time limit in the vast majority of cases.
• Time-consuming and resource-intensive practices, and limited interaction with requesters: The Ombudsman made some specific suggestions in this regard, including that the Commission engage with requesters openly and constructively at all stages, and ensure they are provided with all necessary information that may enable them to clarify their requests. She also suggested that the Commission verify from the outset whether external consultations in the handling of an access request will be necessary and, if so, launch that process in a timely way. Likewise, the Commission should seek to obtain clarifications from requesters within days of the request being registered.

The Commission’s reply

16. In reply to the Ombudsman’s recommendation, the Commission acknowledged the importance of timely handling of requests.[8] It referred to the significant increase in the number of public access requests over the past years, which are ever-wider in scope and very complex. The Commission also pointed to new measures it has put in place to simplify the exercise of the right of access to documents, namely the new IT system for submitting and handling requests - the Electronic Access to Commission Documents (EASE) portal.[9]

17. The Commission argued that the concerns raised by the Ombudsman mainly relate to a limited part of the requests for access it receives, that is, 4% of all requests received in 2021 and 5% in 2022. In general, the Commission considers that it has a high level of transparency, as full or partial access is granted to the majority of documents requested.

18. As regards the concrete suggestions made by the Ombudsman, the Commission noted its constant efforts to improve proactive transparency and referred to proactive transparency in the Brexit and trade negotiations, as relevant examples.

19. In reply to the Ombudsman’s suggestion on insufficient human resources, the Commission pointed to the current staffing limitations in a context of substantial additional tasks received over the past years (in areas such as the energy crisis, the war of aggression against Ukraine and humanitarian crises). Despite these limitations, the Commission has committed to allocate more resources to the team in the Secretariat-General in charge of confirmatory applications, without however specifying how many.

20. Finally, the Commission indicated that its administrative practices and guidance for staff already cover the Ombudsman’s suggestions in relation to the timely launch of external consultations and engaging with applicants to obtain clarifications. The Commission added that it regularly reminds staff of these practices and of the need to take any procedural steps without undue delay.

The Ombudsman’s assessment

21. It is important to set out what delays actually mean in practice. They entail, in the first place, a negative experience with the EU for the citizen concerned and a loss of credibility for the institution. Citizens, for their part, are required to comply unconditionally with time limits imposed upon them by public authorities. It is difficult to see how it should be acceptable that public authorities can disregard the time limits that the law establishes for their action. Moreover, delays defeat one of the very purposes of the right of public access, namely to allow citizens and organisations to participate in public debates and scrutinise the action that public authorities envisage or have taken. Granting access months or years after the matter has been in the public eye can be meaningless. The gravity of this matter is compounded by the fact that, in the Ombudsman’s experience, significant delays occur in cases of great public importance.

22. The Commission’s reply suggests that it is already implementing most of the Ombudsman’s suggestions. This is not what the Ombudsman has seen in her inquiries.[10]

23. Complaints that have reached the Ombudsman, after the opening of this inquiry, continue to show significant delays, including in cases of public importance. Complaints also show that the Ombudsman’s suggestions are not systematically implemented in practice. Examples include the following:

• Recovery and Resilience Facility: A journalist sought public access to documents concerning the national plans of Poland and the Netherlands under the Recovery and Resilience Facility (RRF). For the documents related to the Polish plan, the Commission granted partial access nine months after the complainant’s initial request.[11] The complainant considered that the Commission had failed to identify all documents falling within the scope of his request. The Commission replied that two additional documents exist but did not fall within the scope of the request. The Ombudsman considered that the Commission had defined the scope of the request very literally and found it regrettable that the Commission had not engaged with the complainant to clarify the request. She urged the Commission to register a new request for these two documents and deal with this request immediately. For the documents related to the Dutch plan, in September 2023, the Commission had still not taken a final decision even though the complainant first asked for access in June 2022. The Commission informed the Ombudsman that external consultations were still ongoing nine months after receiving the confirmatory application.[12]
• Migration: A journalist submitted three requests to the Commission for public access to documents concerning surveillance and security systems and equipment at migrant centres in Greece. She turned to the Ombudsman after encountering delays in receiving a reply to all three confirmatory applications. The complainant’s requests date from August 2022. In September 2023, the Commission sent its final reply on one request, while the two others were still pending.[13]
• Digital rights: A network of organisations monitoring the application of digital rights in the EU asked the Commission for public access to documents concerning encryption in law enforcement. After the Commission failed to reply to the confirmatory application, the complainant turned to the Ombudsman. The complainant argued that the delay means that it cannot fulfil its monitoring role as the documents become less and less relevant as time goes by and the policy debate on the topic evolves. The complainant’s initial request dates from October 2022; in September 2023, the Commission had still not taken a final decision.[14]
• Sanctions against Russia: The Commission failed to take a final decision within the applicable time limits on a request for public access to documents concerning correspondence and meetings with lobby and industry groups regarding sanctions against Russia. Given the ongoing delay, the Ombudsman inspected the documents at issue. The inspection revealed that ten out of the 41 documents identified were already publicly available, 18 documents were cover letters or cover emails of a purely administrative nature and 13 documents did not seem to contain sensitive information. In view of this, the Ombudsman asked the Commission to grant the widest possible access to the documents, which the Commission accepted. Overall, it took the Commission 15 months to disclose the documents. The Ombudsman also noted that the Commission launched the necessary third party consultations only after the Ombudsman had asked to inspect the documents. This constituted a delay of nearly six months.[15]
• COVID-19: A citizen asked the Commission for a list of documents exchanged between the Commission’s Steering Committee dealing with the purchase of COVID-19 vaccines and the Polish government. It took the Commission 14 months to reply. Despite the considerable time and effort needed by Commission staff to produce the requested documents, the Commission did not contact the complainant to clarify the scope of his request and/or to make a proposal for a friendly solution. Nor did the Commission keep the complainant informed about how his request was being processed over many months. The Commission also postponed the deadline for replying a few times during the Ombudsman’s inquiry. The information provided to the complainant in this regard was very confusing.[16]
• Energy security: A civil society organisation asked the Commission for information and public access to documents concerning the EU-US Energy Security Task Force, which brings together representatives of the Commission and the US authorities to discuss energy security and cooperation. To this end, the Task Force holds meetings and engages with various stakeholders, including the private sector. The Commission initially refused to disclose the names of the companies participating in meetings of the Task Force. Having received no reply to its confirmatory application, the complainant turned to the Ombudsman. The Ombudsman disagreed with the Commission’s initial assessment and asked for increased public access, which the Commission finally granted. It took the Commission 12 months to fully disclose the documents. The requester noted that the delay meant a lack of scrutiny of the participants.[17]
• Environmental protection: A non-governmental organisation asked the Commission for documents concerning complaints about a ban on short distance flights in France, for which more environmentally friendly alternatives exist. Having received no reply from the Commission on the confirmatory application, the organisation turned to the Ombudsman. The request concerned three short documents. Even so, it took the Commission ten months to disclose them.[18]
• After the Ombudsman issued her recommendation in this strategic inquiry, a journalist contacted her to inform her about a case in which the Commission took two years to reply to a confirmatory application, only to issue a confirmatory decision that was the same in substance as the initial reply.

24. The Commission’s annual reports on the implementation of Regulation 1049/2001 do not include any information on the average time needed to process public access requests.[19] However, the increasing number of ‘delay’ cases being brought to the Ombudsman suggests that the situation continues to deteriorate. In 2020, the Ombudsman opened 13 inquiries related to delays by the Commission in dealing with requests for public access. In 2021, there were 22 inquiries, in 2022, 35 inquiries and most significantly in 2023, the Ombudsman has opened 54 such inquiries as of 15 September 2023. 

25. The fact that access requests are becoming more numerous and complex cannot justify that they are not dealt with promptly. As the European Parliament has already proposed, the Commission should adopt swifter, more accessible and further simplified procedures for handling requests about refusals to grant access.[20]

26. While the new EASE portal is clearly a positive step in terms of interacting with those requesting access and publishing all disclosed documents, it does not yet seem to have ushered in major changes in the Commission’s internal handling of requests.

27. As the largest EU institution, the Commission’s administrative practices are looked to as an example by other bodies, offices and agencies. Thus, where the Commission is systematically deficient in how it deals with requests for public access, this risks undermining the transparency of the entire EU administration.

28. In view of the above, the Ombudsman reiterates her finding that the systemic and significant delays in the Commission’s processing of requests for public access to documents amount to maladministration. The Commission needs, as a matter of priority, to correct this situation.

29. Unless and until the Commission, at the highest levels, demonstrates in practice that transparency is the rule and a priority for the institution, its handling of requests will continue to be delayed.

30. Given the importance of this matter, the Ombudsman submits it to the European Parliament by way of this Special Report, seeking Parliament’s support in prevailing upon the Commission to act on her recommendation. The European Parliament could consider adopting a resolution accordingly. In the Ombudsman’s view, citizens are entitled to expect better practices from an open, modern and service-minded EU administration.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 20/09/2023

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC.

[2] Article 15 of the Treaty on the Functioning of the European Union: https://eur-lex.europa.eu/eli/treaty/tfeu_2016/art_15/oj, and Article 42 of the Charter of Fundamental Rights of the EU: https://eur-lex.europa.eu/eli/treaty/char_2012/oj.

[3] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/eli/reg/2001/1049/oj. Regulation 1049/2001 applies directly to the European Commission, the Council of the EU and the European Parliament. However, other EU institutions, bodies, offices and agencies also apply the Regulation or have adopted decisions setting out how they apply it.

[4] See Public access to EU documents and the role of the European Ombudsman: https://www.ombudsman.europa.eu/en/areas-of-work/access-to-documents.

[5] The Ombudsman’s letter to the Commission is available at: https://www.ombudsman.europa.eu/en/opening-summary/en/154404 The Commission’s reply is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/167660. In its reply the Commission put forward in particular that delays had to be seen in the light of the internal and external consultations that the Commission may need to carry out, protection of personal data, translation requirements, the need to ensure legally valid and consistent replies, the increasing number of requests for public access and the wide scope of many requests.

[6] The meeting report is available here: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/167659.

[7] The Ombudsman’s recommendation on the time the Commission takes to deal with requests for public access to documents is available at: https://www.ombudsman.europa.eu/en/recommendation/en/167661.

[8] The Commission’s reply to the recommendation (its ‘detailed opinion’ under Article 4 of the Ombudsman’s Statute) is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/174167.

[9] The ‘Electronic Access to Commission Documents’ portal through which requests for public access to documents can be made was launched in September 2022 and is available at: https://ec.europa.eu/transparency/documents-request/home.

[10] The Ombudsman’s decision closing this inquiry provides further details on the recommendation and suggestions, the Commission’s reply to them and the Ombudsman’s assessment thereof, available at: https://www.ombudsman.europa.eu/en/decision/en/175321.

[11] https://www.ombudsman.europa.eu/en/case/en/62960.

[12] https://www.ombudsman.europa.eu/en/case/en/63458.

[13] https://www.ombudsman.europa.eu/en/case/en/63443.

[14] https://www.ombudsman.europa.eu/en/case/en/63770.

[15] https://www.ombudsman.europa.eu/en/case/en/62049.

[16] https://www.ombudsman.europa.eu/en/case/en/62702.

[17] https://www.ombudsman.europa.eu/en/case/en/62757.

[18] https://www.ombudsman.europa.eu/en/case/en/63162.

[19] For example, the Council includes statistics on the average time to process initial requests and confirmatory applications, see 2021 Report on access to documents available at: https://data.consilium.europa.eu/doc/document/ST-8196-2022-INIT/en/pdf.

[20] European Parliament Resolution on public access to documents – annual report for the years 2019-2021, paragraph 42: https://www.europarl.europa.eu/doceo/document/A-9-2023-0179_EN.html.