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Decision on how the European Commission dealt with two requests for public access to documents concerning the Swedish and Danish Recovery and Resilience Plans (case 925/2022/LDS)

It-Tlieta | 29 Novembru 2022

The case concerned two requests for public access to documents related to how the European Commission evaluated the Danish and Swedish national plans under the Recovery and Resilience Facility (RRF). The requests were made by a journalist, who was one of a number of journalists seeking to obtain information about how national plans had been drawn up and approved, in an effort to hold public authorities to account.

The Commission identified 111 documents as falling under the request but granted access to only parts of those documents. In refusing access to the remainder, it invoked exceptions set out in the EU's legislation on public access to documents, arguing that disclosure could undermine an ongoing decision-making process and the financial, monetary or economic policy of the EU and the Member States concerned.

The RRF forms part of an unprecedented EU-funded stimulus package for Member State economies in the aftermath of the COVID-19 pandemic. Against this background, it is understandable that there is considerable public interest in knowing how the national Recovery and Resilience Plans, including the two in this case, were put in place. The Ombudsman takes the view that the RRF must be matched with high transparency standards to ensure meaningful accountability.

While it is clear that the documents relating to the two RRPs, by their very nature, concerned economic and financial matters, the Ombudsman considered that the Commission did not satisfactorily explain how disclosing them would undermine financial, monetary or economic policy. The arguments presented by the Commission were vague and general in nature. The Ombudsman also found that the Commission had not convincingly explained how the exception for protecting an ongoing decision-making process applied.

While the Ombudsman acknowledges the need to ensure the integrity of negotiations, there is also clearly a public interest in ensuring as much transparency as possible, with a view to ensuring proper accountability for this unprecedented EU-funded facility. In addition, the two Member States concerned did not identify the same risk as the Commission arising from disclosing the documents at issue. The Ombudsman was not convinced that the Commission had properly assessed whether the public interest in disclosure outweighed the interests it invoked for withholding access.

Against this background, the Ombudsman suggested that the Commission contact the complainant to establish if he still wants to pursue his request and, if so, to reassess the requests, given the Swedish plan has since been approved. She also suggested that the Commission draw on her assessment in this case in dealing with future public access requests concerning the negotiations on the Recovery and Resilience Plans and exchanges related to the Commission's evaluation of Member States’ performance under the RRF, with a view to ensuring a consistent approach with clear explanations.

Decision on how the European Food Safety Authority (EFSA) dealt with a request for public access to documents related to a proposal to restrict lead in ammunition (case 2124/2021/MIG)

It-Tnejn | 14 Novembru 2022

The case concerned a request for public access to documents held by the European Food Safety Authority (EFSA) concerning lead in ammunition. EFSA took more than seven months to deal with the request, extending the deadline on various occasions, which prevented the complainant from using the documents in preparing a contribution to a public consultation organised by another EU agency.

The Ombudsman opened an inquiry and found maladministration in how EFSA had dealt with the complainant’s access request and, specifically, its failure to comply with the time limits set out in the EU legislation on public access to documents. She recommended that EFSA should cease its practice of extending the prescribed time limits beyond 30 working days when proposing a ‘fair solution’. She also recommended that EFSA should provide applicants at an early stage with a list of the documents it identifies where an access request is formulated in broad terms. 

EFSA replied positively to the Ombudsman’s recommendations, committing itself to changing its rules and practices to ensure that requests for public access to documents are processed swiftly. The Ombudsman closed the inquiry, welcoming EFSA’s positive response and the steps it has already taken and intends to take to implement her recommendations.

Decision on how the European Commission dealt with a request for public access to a letter concerning a report on an investigation into a fatal train accident in Spain (cases 710/2022/OAM and 716/2022/OAM)

L-Erbgħa | 09 Novembru 2022

The cases concerned how the European Commission dealt with two requests for public access to a letter sent by the Spanish authorities to the Commission concerning a report by the EU Agency for Railways in relation to a train accident in Spain in which 79 people died. The Commission initially refused access to the requested letter. The complainants asked the Commission to reconsider its position, but did not receive a final reply to their requests within the applicable deadlines.

The Ombudsman asked the Commission to reply without delay to the complainants’ requests. The Ombudsman inquiry team also inspected the letter in question. Based on the review of the letter, the Ombudsman was not convinced by the Commission’s arguments to refuse public access and asked to meet with the Commission to obtain more information.

The complainants informed the Ombudsman that, in the meantime, the letter had been disclosed by the Spanish authorities at national level. Since both complainants have now obtained access, no further inquiries into these cases are justified and the Ombudsman closes them.