The background to the complaint

1. On 31 May 2011, the European Investment Bank ("EIB") publicly announced on its website the opening of an investigation into allegations of tax evasion in relation to the Mopani Copper Mines (MCM) project in Zambia[1]. The background for the investigation was the following:

The EIB investigation

2. In February 2005, the EIB signed a USD 50 million loan with MCM which is majority-owned by the Swiss group "Glencore". The loan was signed to partially fund the renovation and modernisation of the Mufulira copper smelter to reduce the emissions of sulphur dioxide at the industrial plant dating from the 1930s. The part of the project financed with the EIB loan was successfully implemented in 2007. In February 2011, a draft audit report on allegations of tax evasion by MCM and its parent company Glencore was leaked and published on the internet. The audit, carried out by an international tax audit team, was commissioned by the Zambian Revenue Authority (ZRA). The draft audit report highlighted irregularities concerning operational costs, revenues, transfer pricing, employee expenses and overheads. MCM strongly disputed the conclusions of the leaked report, stating that the auditors never gave it a chance to rebut the allegations and that the leaked report was merely a draft of an incomplete version of the conclusions. In accordance with the EIB's Anti-Fraud Policy of 2008, the EIB informed OLAF of the allegations contained in the report. The EIB also launched its own investigation which was conducted by its independent Inspectorate-General. The EIB's website statement of 31 May 2011 mentioned that, "[i]n the event that this investigation were to conclusively demonstrate tax evasion according to the Zambian authorities, this would clearly expose MCM to local financial penalties and lead to events that may trigger early repayment of the EIB loan".

3. The Inspectorate-General concluded its investigation in November 2011 and submitted its investigation report to the EIB's Management Committee. The EIB loan was repaid in full by MCM in 2012. The update on the EIB's website of 25 July 2014^[2] specifies that the borrower made an early repayment of the loan at its own request. It also mentions that Glencore informed the EIB that the ZRA had completed an audit and that all outstanding issues were satisfactorily resolved, and that the EIB has not been able to obtain further details on this matter from the Zambian authorities, MCM or the parent company Glencore. OLAF informed the EIB of its decision to close the investigation with no action because "no EU budget funds were involved"[3]. The update further states that, given that the EIB no longer has any contractual relation with MCM/Glencore and these matters concern MCM/Glencore's relations with the Zambian authorities, the EIB has not taken any further view on this and considers the case as closed.

The complaint

4. On 4 October 2012, the complainant, a London-based development organisation which has been running a campaign about tax evasion in developing countries, wrote to the EIB to ask about the progress of the investigation. The complainant referred to rumours that the EIB would soon reveal its conclusions and asked to be informed when the EIB would make its findings public.

5. On 7 November 2012, the EIB replied that it does not publish the reports on specific investigations carried out by the EIB's Inspectorate-General, and that it would not publish the report in which the complainant was interested either.

6. On 8 November 2012, the complainant wrote back and explicitly requested the EIB to publicly disclose its report on the basis of the EIB's Transparency Policy. It argued that not disclosing the report would be at odds with the EIB's own Transparency Policy which is founded on a presumption of disclosure of information. According to the complainant, since the EIB itself had already publicly announced its investigation in May 2011, it would be odd for the EIB to now withhold the findings of that investigation.

7. In a telephone conversation in early November 2012[4], EIB officials informed the complainant that the EIB would not release the report in question.

8. On 24 June 2013, the complainant submitted a complaint, under the EIB's Complaints Mechanism (CM), against the EIB's decision refusing access to the report (ref. SG/A/2013/01). The complainant underlined the strong public interest (in Europe and in Zambia) in the publication of the full report and stated that the refusal to publish the report was contrary to the EIB's own Transparency Policy. According to the complainant, if the EIB's investigation were to find that Glencore had committed tax evasion in Zambia, it should not shield that company from the consequences of that information becoming public. If, on the other hand, the EIB's report were to show that Glencore had done nothing wrong, then both the EIB and the company would benefit from the publication of the report. On 5 July 2013, the EIB acknowledged receipt of the complaint and informed the complainant that the Complaints Mechanism has started a review of the complaint. On 30 July and 21 August 2013, the EIB Complaints Mechanism orally discussed the development of its inquiry with the complainant.

9. Having received no reply to its complaint, the complainant, on 20 February 2014, turned to the Ombudsman.

The inquiry

10. The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

The EIB wrongly refused to grant access to its report into allegations of tax evasion in the framework of the Mopani Copper Mines project.

The EIB should grant access to the report.

11. In her letter opening the inquiry, the Ombudsman asked the EIB to either release the report or to explain, with reference to the exceptions in point A.5.2 of the EIB's Transparency Policy, why releasing the report would specifically and effectively undermine the protection of an interest relied upon.

12. The EIB sent a copy of the investigation report to the Ombudsman's services for inspection. The Ombudsman informed the complainant accordingly. In the course of the inquiry, the Ombudsman received the opinion of the EIB on the complaint and, subsequently, the comments of the complainant in response to the EIB's opinion. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Alleged wrongful refusal to grant access to an investigation report and the corresponding claim

Arguments presented to the Ombudsman

13. According to the complainant, 8 months after it submitted its complaint to the Complaints Mechanism on 24 June 2013, no decision had yet been taken. In the complainant's view, the EIB was withholding important information about the conduct of a company to which it had lent USD 50 million. The EIB's refusal to release the report on allegations of tax evasion by the beneficiary of that loan goes against its own Transparency Policy.

14. In its opinion, the EIB stated that it is committed to maintain the highest levels of transparency and that it acknowledges the value of its Complaints Mechanism as a key element of the EIB's accountability mechanisms. However, in the present case, the EIB considered that there are justified and legitimate reasons not to disclose or publish documents concerning its investigations in relation to its financing operations.

15. According to the EIB, the general presumption of disclosure provided for in the EIB Transparency Policy (which takes into account the principles of Regulation 1049/2001) should be reconciled with the specific presumption of non-disclosure of documents and information relating to internal investigations based on the legitimate interest to protect the investigations as expressed in the EIB Anti-Fraud Policy, both in its 2008 and 2013 version. The EIB considers that its capacity to investigate its operations, as well as to request and obtain frank and reliable internal or external advice, necessary to carry out investigations, would be seriously undermined should it be under the obligation to publish or publicly disclose such information, even when the disclosure would follow the completion of the investigation.

16. The EIB stated that disclosure of information which relates to its investigations into fraud and corruption should take into account the necessity to strike the right balance between the interest of the public to obtain information on the EIBs investigative activities, and the public interest to maintain the effectiveness of present or future investigations. On the other hand, the EIB acknowledged that, since the launch of the investigation in question was publicly announced, there might be a legitimate interest that the public be informed about the outcome of that investigation. The EIB noted that it had therefore updated the information published on its website relating to the present case[5].

17. The EIB enclosed with its opinion a copy of its reply of 25 July 2014 to the complainant's complaint SG/A/2013/01, which included (i) a copy of the "Conclusions report" of the Complaints Mechanism of June 2014, and (ii) a copy of the EIB Management Committee response to the Complaints Mechanism's report[6]. 

18. In its reply of 25 July 2014, the EIB informed the complainant that the Complaints Mechanism had submitted its Conclusions report on the complaint to the EIB's Management Committee and had recommended that a redacted version of the Inspectorate-General fraud investigation report be disclosed to the complainant. The EIB, however, considered that there were justified and legitimate reasons not to disclose or publish documents related to its own investigations, either in full or in a redacted form. It argued that, on the basis of Art 15 (3) TFEU, the EIB (as well as the Court of Justice of the EU and the European Central Bank) is subject to the duty of transparency only as far as administrative tasks are concerned. It stated that the investigations carried out by the EIB's Fraud investigations Division into matters relating to the EIB financing activities within the context of the contracts signed between the EIB and its counterparts do not fall within the definition of "administrative tasks", and are, therefore, not covered by the obligation of disclosure.

19. In its response to the Complaints Mechanism's Conclusions report, the Management Committee considered that the above position of the EIB is also based on Article 55 of the EIB's Anti-Fraud Policy of 2013 according to which, "[w]ithin the Bank's rules on access to information, all information and documents collected and generated during an investigation, not already in the public domain, shall be kept strictly confidential. The confidentiality of the information collected must be respected both in the interests of those concerned and the integrity of the investigation". The Management Committee stated that this presumption of non-disclosure of documents relating to EIB investigations is also in line with OLAF's recent general policy on specific provisions regarding its investigations, which OLAF considers as overriding the presumption of disclosure established by Regulation 1049/2001. The Management Committee noted in this respect that it is not customary practice by OLAF or International Financial Institutions to publish or disclose their own investigation reports.

20. The EIB Management Committee also stated that transparency in relation to the EIB's investigations was also being ensured by the publication, on its website, of the Annual Reports of the Inspectorate-General Fraud Investigations Division. It concluded that, although the applicable rules lacked clarity, there were sufficient arguments for not disclosing the fraud investigation report.

21. In its observations, the complainant stated that it was unacceptable that the EIB's Management Committee had set aside, without any thorough explanation, the carefully argued conclusions of the Complaints Mechanism. The complainant argued that the EIB's interpretation of the TFEU - namely that the transparency rules do not cover its investigations because they are not "administrative tasks" - was questionable. The complainant stated that, as long as the EU legislator and the Court of Justice had not yet defined the term "administrative tasks", the opposite argument could equally be made, with the lack of a definition being invoked as grounds for disclosure.

22. The complainant considered that the EIB’s argument that its investigations would suffer if information about them were disclosed to the public (even with information about individuals deleted) is not supported by any evidence. In the UK for instance, investigators’ findings of wrongdoing are often published, for example in relation to unlawful killings by the police and the armed forces, without such publicity undermining the capacity of investigators to obtain information and advice from the relevant people.

23. The complainant also referred to the working methods of investigative journalists who are able to get people to provide information on the assumption that their identity would be protected if so requested.

24. The complainant also referred to the example of the World Bank’s Integrity Vice‐Presidency, which investigates allegations of fraud and corruption in projects financed by the World Bank. The Vice-Presidency reports on its findings to the World Bank staff, to the national authorities concerned and also to the rest of the world, via its website. These reports conceal the identities of individuals and companies concerned, but give considerable detail about the findings of the investigators and about any penalties imposed on those found guilty of wrongdoing.

25. The complainant then referred to the comment made by the Complaints Mechanism that "from the inquiry carried out by the EIB‐CM, it appears that such exception [namely the exception relating to the protection of the purpose of investigations] does not apply to the present case insofar as the investigation of the EIB Inspector General was finalized (November 2011) well before the complainant’s request. Once the investigation is closed, it must be examined on a case by case basis whether full or partial access can be given, also in light of other applicable exceptions laid out in the EIB TP" (emphasis by the complainant).

26. The complainant also argued that the  fact that the EIB has extensive dealings with private companies does not in any way detract from its obligation to be transparent and does not give the EIB the right to hide information which might be embarrassing to it.

27. The complainant argued that, if the EIB’s report were to reveal evidence of tax evasion by MCM/Glencore, then through legal action very large sums of money could be recovered and be used to fund public services for people living in great poverty in Zambia. The complainant pointed out that the Conclusions report of the Complaints Mechanism (paragraph 4.1.2) gave a good summary of the serious allegations against MCM/Glencore. Revelations that the company had systematically evaded tax in Zambia would also alert other tax authorities and governments around the world about the potential conduct of this very large multinational. Conversely, if the EIB’s investigation report found no evidence of tax evasion that would help the companies concerned to clear their names.

28. The complainant stated that the update on the EIB’s website about the present case is meaningless and in no way a substitute for the report itself. The Complaints Mechanism mentioned in its report that EIB staff made two visits to Zambia (one of which lasted two‐and‐a‐half weeks), but the website update statement makes no reference whatsoever to the findings or results of those visits. It also raises the question of whether the EIB’s investigators faced a total lack of cooperation from the company concerned and from the Zambian authorities. This would be consistent with the allegations in the leaked, draft auditors’ report about MCM, which mentioned that the auditors found the company most un‐cooperative. If this were to be the case, then there would be a public interest in this being disclosed, so that people in Europe and in Zambia could hold the parties to account for their behaviour.

The Ombudsman's assessment

29. The Ombudsman notes that this complaint was submitted in the midst of the EIB revision of its Transparency Policy. The EIB has consulted the Ombudsman in the context of that revision and, on 21 October 2014, the Ombudsman sent her comments on the draft revised Transparency Policy to the EIB.  The Ombudsman has, however, assessed the present complaint on the basis of the Transparency Policy rules which were applicable at the time of the events in question.

Preliminary remark concerning procedural issues and suggestions

30. Before dealing with the allegation that the EIB wrongly refused to grant access to the investigation report (which is the core of the present complaint), the Ombudsman considers it worth pointing out that, from a procedural point of view, the EIB did not comply with the deadlines set out in its Transparency Policy, both as regards (a) the initial request for access and (b) the complaint lodged with the Complaints Mechanism. Article 5.2.11 of Part A ("Principles") of the Transparency Policy provides that all requests for disclosure shall be handled promptly and that the Bank shall state the grounds for the total or partial refusal.

31. First, as regards the initial request, the complainant's e-mail of 4 October 2012 to the EIB does not constitute a request for public access, since in that e-mail, the complainant merely showed interest in the progress of the EIB's investigation and asked the EIB when it expected to make its findings public. However, in its follow-up e-mail of 8 November 2012, the complainant explicitly requested the EIB to disclose its investigation report ("I therefore request that the Bank publicly discloses the report on its investigation of the Mopani allegations"). This e-mail therefore constitutes the complainant's initial request for public access. Article 4.5.10 of Part B of the Transparency Policy provides that the Bank shall state the reason(s) why information cannot be provided, and shall inform the applicant of the right to either make a confirmatory application or to lodge a complaint under the Complaints Mechanism. The EIB never issued  a reasoned decision on the complainant's request of 8 November 2012. Instead it merely informed the complainant orally, in a telephone conversation of 9/10 November 2012, that it would not release the report in question. As the complainant made its request on 8 November 2012, the EIB should normally - according to Article 4.5.5 of Part B of its Transparency Policy - have sent a decision by 29 November 2012, namely within 15 working days following receipt of the request.

32. Second, Article 4.5.17 of Part B of the Transparency Policy provides that, in the event of a failure by the Bank to reply within the prescribed time limit, the applicant may lodge a complaint/appeal with the Complaints Mechanism under point 9.1 of the Transparency Policy.  Point B.9.1.3 provides that the EIB Complaints Mechanism will provide a reply by no later than 40 working days from the acknowledgement of receipt (eventually extended to a maximum of 100 days for complex issues). As the complaint of 24 June 2013 was acknowledged on 5 July 2013, the Complaints Mechanism should have replied to the complainant by 2 September 2013 (and at the latest by the end of November 2013 in the event that the request was considered to be complex). However, the EIB did not reply to the complainant until 25 July 2014.

33. The EIB thus failed to reply within the prescribed time-limits to both the initial request for access and to the complaint lodged with the Complaints Mechanism. Although the above procedural issues were not part of the present inquiry[7], the Ombudsman considers it appropriate to draw the EIB's attention to them, so that appropriate measures can be taken to avoid in the future such  delays from occurring when dealing with requests for access to EIB's documents.

34. On the other hand, and although the EIB in the end decided not to grant access to the investigation report, the Ombudsman welcomes the EIB's decision to send to the complainant (and to the Ombudsman), attached to its decision of 25 July 2014 refusing access to the report, a copy of the (i) Complaints Mechanism Conclusions report of June 2014 (which recommended disclosure of a redacted version of the report) and of (ii) its Management Committee's response to that Conclusions report (which decided against disclosure of the report). The Ombudsman applauds the transparent manner in which the EIB informed the complainant of the opposing positions taken by its different services. The Ombudsman encourages the EIB to adopt a similar practice in the future, whenever it takes a decision on access to documents which diverges from the proposal made by its Complaints Mechanism.

Assessment of the refusal to grant access to the investigation report

Preliminary remarks

35. In this case, the Ombudsman notes that it is only in its reply to the complainant of 25 July 2014 (and in its opinion of the same day to the Ombudsman) that the EIB has, for the first time, set out the reasoning for its refusal to grant access to the investigation report. In its oral reply of 9/10 November 2012 to the complainant's request for access of 8 November 2012, the EIB merely informed the complainant that it would not grant access to the report, without providing any reasoning for that decision. In its earlier e-mail of 7 November 2012, in reply to the complainant's e-mail of 4 October 2012 in which the complainant had asked when the EIB expected to make its findings public, the EIB informed the complainant that it "does not publish its reports regarding specific investigations carried out by the Bank's Inspectorate General" and that it did "not intend to publish this particular report". However, given that the complainant on 24 June 2013, lodged a complaint with the Complaints Mechanism, it is the EIB's decision of 25 July 2014 (which was signed by the EIB's Secretary-General) which constitutes the EIB's final decision on the request for public access. It is this decision which is the subject of the Ombudsman's assessment^[8].

36. Next, the Ombudsman notes that the rules applicable to the present case are set out in the EIB's Transparency Policy. The Transparency Policy applicable at the time of the complainant's request is the Transparency Policy which was adopted on 2 February 2010 (further up-dated in May 2011)^[9]. The Transparency Policy, under Part A, Article 5.1, sets out the principle of presumption of disclosure, but under Article 5.2 ("Exceptions") also provides for some exceptions where disclosure would undermine the protection of certain interests. These exceptions are similar to the exceptions set out in Article 4 of Regulation 1049/2001[10]. Although the EIB has its own rules on public access to documents, Article II.8 of the Transparency Policy provides that "[i]n preparing the present policy, the Bank takes account and commits to comply with the EU policy initiatives and legislative framework on transparency and public disclosure of information notably with the principles laid down by Regulation (EC) N° 1049/2001 (...) (emphasis added). It further provides that "when exercising administrative tasks, the EIB shall ensure that its rules on access to documents are in accordance with applicable EC Regulations setting out the general principles and limits on access to documents. (...) The Transparency Policy shall be interpreted in accordance with the provisions of Regulation (EC) N° 1049/2001 (...) whenever they are applicable. In the event of divergence, the provisions of Regulation (EC) N° 1049/2001 (...) shall prevail, to the extent they apply to the Bank" (emphasis added).

37. The Ombudsman thus considers that the exceptions set out in Article 5.2 of Part A of the EIB's Transparency Policy need to be interpreted in accordance with the interpretation given by the case-law to the exceptions set out in Article 4 of Regulation 1049/2001. This implies that such exceptions, since they derogate from the principle of the widest possible public access to documents, must be interpreted and applied strictly. Thus, were the EIB to refuse access to a document, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by the exception upon which it relies. Moreover, the risk of the interest protected being undermined must be reasonably foreseeable and not purely hypothetical[11].

The EIB's refusal to grant access

38. The Ombudsman's services have carefully inspected the investigation report to which the complainant requested access. The 5-page report, dated 16 November 2011 and marked "Strictly Confidential", was drawn up by the EIB's Inspectorate-General and is addressed to the EIB's Management Committee. The report also contains an annex, namely a detailed (28-page) audit report of 8 November 2011 which is classified as "Privileged and Confidential Report of Audit at Mopani Copper Mines plc. For the eyes of EIB and its legal advisers only. Not to be copied to third parties" (emphasis added in the original).

39. The first argument the EIB invokes for not granting access to the investigation report is that the right of access to documents of the EU institutions, bodies, offices and agencies set out in Article 15(3) TFEU only applies to the EIB when it exercises its "administrative tasks" and that investigations by the EIB's Inspectorate-General into financing matters insofar as they do not fall under "administrative tasks", are not covered by the obligation to disclose. The Ombudsman has already had an opportunity to take a position on this issue in the context of being consulted on the revision of the EIB Transparency Policy. In her comments of 21 October 2014 on the EIB's draft revised Transparency Policy, the Ombudsman signalled that any attempt by the EIB to define the scope of its administrative tasks would be fraught with problems, legal and practical, and would be likely to give rise to a lengthy series of disputes, in each of which the EIB would appear to be seeking to narrow the scope of the general principle of transparency. This case helps to illustrate this point. It could equally be argued that the EIB's fraud investigations are administrative functions, similar to those carried out by OLAF, which is not mentioned in the fourth paragraph of Article 15(3) TFEU. The Ombudsman, rather, encouraged the EIB to determine, in a way consistent with the principles of openness, good governance and participation, how the general principles and limits governing the right of public access should apply in relation to its specific functions as a bank, specifically through the application of the exceptions to access set out in Article 5 of its revised Transparency Policy. In any case, the facts of the present complaint need to be assessed on the basis of the Transparency Policy which was adopted on 2 February 2010. This Transparency Policy does not contain any limitation of the obligation of disclosure of documents falling under the EIB's administrative tasks, but states in Article 5.1.1 that "all information held by the Bank is subject to disclosure upon request, unless there is a compelling reason for non-disclosure". Accordingly, the question of whether the investigation fell under the EIB's "administrative tasks" is not an issue.

40. As regards the EIB's other arguments for non-disclosure of the investigation report, the Ombudsman notes that, in its reply of 25 July 2014 to the complainant (as well as in its opinion to the Ombudsman), the EIB did not refer to a specific provision or exception of its Transparency Policy. However, the EIB stated that there were legitimate reasons not to disclose documents related to its own investigations and that there was a presumption of non-disclosure of documents and information relating to the EIB's investigations which need to be protected under the EIB's Anti-Fraud Policy. It argued that its capacity to investigate its operations, as well as to request and obtain frank and reliable internal and external advice necessary to carry out these investigations would be seriously undermined if the Bank were to be obliged to disclose such information[12]. It is thus clear that the EIB in fact relied on the exception set out in Article 5.2.3 of part A of its Transparency Policy. This exception provides that "[u]nless there is an overriding public interest, access to information shall also be refused where disclosure would undermine the protection of (...) the purpose of inspections, investigations and audits" (emphasis added). This exception is the same as the exception set out in Article 4(2), third indent, of Regulation 1049/2001[13].

41. The Ombudsman notes that, in this case, the EIB did not carry out a specific examination of the investigation report in order to refuse access. Indeed, nowhere in the EIB's decision of 25 July 2014 or in the Management Committee's position on the Complaints Mechanism's Conclusions report is there an assessment of the investigation report to which the complainant requests access. The EIB instead relies on a general presumption of non-disclosure of documents and information relating to its investigations under its Anti-Fraud Policy. According to the case-law concerning the exception relating to the protection of the purpose of inspections, investigations and audits (Article 4(2), third indent, of Regulation 1049/2001), as an exception to the obligation to carry out a specific examination of each document, it is open to an institution to base its decisions to refuse access on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature (Sweden and Turco v Council, Commission v Technische Glaswerke Ilmenau)[14]. That general presumption does not exclude the right of the applicant to demonstrate that a given document, disclosure of which has been requested, is not covered by that presumption or that there is a higher public interest justifying the disclosure of the document concerned. The Court of Justice and the General Court have expressly acknowledged the possibility of relying on general presumptions applying to certain categories of documents in several specific circumstances, namely, in procedures for reviewing State aid^[15], merger control procedures^[16], anti-trust procedures[17], proceedings pending before the European Union Courts^[18] and the pre-litigation phase of infringement procedures under Article 258 TFEU^[19]. The Court has not yet had an opportunity to take a position on whether the possibility of relying on such general presumptions should also apply to a fraud investigation conducted by the EIB. However, the General Court has, in its recent judgment of 21 May 2014 in Case T-447/11 Catinis v Commission, again mentioned the possibility of relying on such general presumptions in the context of a request for access to documents of an OLAF investigation into irregularities in the implementation of an EU project in a third country (Syria)^[20]. The Ombudsman notes that an investigation by the Fraud Investigations Division of the EIB's Inspectorate General under the Anti-Fraud Policy has similar characteristics to an OLAF fraud investigation.

42. The EIB's Anti-Fraud Policy[21], under the section "Confidentiality" of Chapter VII "Principles for the conduct of investigations", provides the following:

"55. Within the Bank’s rules on access to information, all information and documents collected and generated during an investigation, not already in the public domain, shall be kept strictly confidential. The confidentiality of the information collected must be respected both in the interests of those concerned and the integrity of the investigation.

56. In particular, during the investigation the confidentiality of the identity of the subject, witnesses and informants must be respected in so far as it would not be contrary to the interests of the investigation.

57. The Fraud Investigation Division shall disclose in writing such information and documents only to those persons or entities authorized to receive them or otherwise on a need-to-know basis" (emphasis added).

43. While it is for the Court of Justice to rule on whether the Commission v Technische Glaswerke Ilmenau case-law can be extended to cover  documents in an EIB fraud investigation file, in the Ombudsman's view the above provisions in the EIB's Anti-Fraud Policy can give grounds for a general presumption that disclosure of documents in the files of on-going investigations by the Fraud Investigations Division of the EIB's Inspectorate General, would, in principle, undermine the purpose of that on-going investigation. The above quoted provisions indeed contain strict rules (similar to the ones applicable to OLAF investigation files) limiting access to the information collected and generated by the EIB's Fraud Investigations Division, and refer explicitly to the "integrity of the investigation".

44. Whereas the EIB may, in principle, rely on a general presumption of non-disclosure of documents in on-going investigations by its Fraud Investigations Division, there are two reasons why, in the present case, it cannot convincingly invoke such a general presumption.

45. Firstly, the complainant has not requested access to a series of documents, but only to one single document. All the cases in which the EU Courts accepted that an institution can rely on a general presumption of non-disclosure shared the same characteristic that the request for access in question covered not just one document but a set of documents (namely, access to the "file"). In those situations, the recognition that there is a general presumption of non-disclosure enables the institution concerned to adopt a global approach to reply to such requests accordingly^[22]. However, as this case concerns access to one document only, namely an investigation report, the EIB, as a matter of good administration, should have explained how disclosure of that document could specifically and actually undermine the investigation rather than relying on a general presumption.

46. Second, a general presumption of non-disclosure of documents contained in an EIB fraud investigation file in order to protect the purpose of that investigation would in principle apply only as long as the investigation in question is still on-going. In fact, according to Article 56 of the EIB's Anti-Fraud Policy, "during the investigation, the confidentiality of the identity of the subject witnesses and informants must be respected in so far as it would not be contrary to the interests of the investigation" (emphasis added). In this case, the EIB has said that its investigation was closed in November 2011, namely when the Inspectorate General adopted its investigation report, that is nearly three years before the EIB took its final decision of 25 July 2014 to refuse access to the investigation report. In these circumstances, the Ombudsman is of the opinion that the EIB could not validly rely on a general presumption of non-disclosure. Instead, the EIB should have explained how releasing the investigation report, three years after the investigation was closed, could still specifically and actually undermine the purpose of its investigations.

47. In this respect, the EIB simply argued - in very general terms and without being specific to the document requested by the complainant - that its capacity to investigate its operations, as well as to request and obtain frank and reliable internal or external advice necessary to carry out these investigations, would be seriously undermined should the Bank be under the obligation to publish or publicly disclose such information, even after the completion of an investigation. The Bank also referred - again in very general terms - to the interest in maintaining the effectiveness of present and future investigations. The Ombudsman thus concludes - and in this respect agrees with the finding of the EIB's Complaints Mechanism - that the EIB did not sufficiently and adequately give reasons for its decision why, three years after the investigation was closed, it could still not grant access to the investigation report.

Overriding public interest

48. The Ombudsman further notes that the EIB - in accordance with Article 5.2.3 of part A of its Transparency Policy - had to consider whether there was "an overriding public interest" in disclosure of its investigation report. As regards the existence of an overriding public interest, the General Court, in Schenker v Commission, has held, in the context of a Commission investigation of a cartel (anti-trust) case - for which it accepted that there exists a general presumption that disclosure of the documents of the file would undermine the Commission's investigation - that there is an overriding public interest for the public to know certain essential elements of the Commission's action in the field of competition which requires the disclosure of information allowing the public to understand the results of the procedure and the reasons which guided the Commission's actions. The General Court held that this overriding public interest could not be satisfied by the mere publication of a press release informing the public of the decision taken, even if the press release briefly describes the infringement committed by the companies concerned. In that case the General Court found that the overriding public interest could be satisfied by the publication of a non-confidential version of the decision (that is to say, a redacted version of the decision)^[23].

49. In the Ombudsman's view the above principles should apply by analogy to an investigation carried out by the EIB's Inspectorate General. Indeed, although the purpose of an investigation under the EIB Anti-Fraud Policy (namely to prevent and deter corruption, fraud, collusion, coercion, obstruction, money laundering and terrorist financing in EIB activities, jointly referred to as "prohibited activities") is different from the objective of an anti-trust investigation carried out by the Commission, the Ombudsman considers that the general public should be able to know, once the investigation is closed, and to the extent that disclosing the information in question does not undermine the protection of commercial interests (which is also subject to an overriding public interest test), the outcome and at least the essential findings of such an investigation. This is even more important when considerable amounts of public money, as is the case with most of the EIB's lending operations, are involved.   

50. In this case, the Ombudsman notes that the EIB carried out a balancing exercise between the interest of the public in obtaining information on the EIB's investigations and the public interest in maintaining the effectiveness of its investigations.[24] In doing so, the EIB concluded that, given that it had publicly announced the launch of its investigation in May 2011, there might indeed be a legitimate interest of the public to be informed of the outcome of the investigation. It therefore decided to update the information on its website concerning the case[25].

51. The Ombudsman however notes that the update published on the EIB's website says very little about the outcome of the investigation. In fact, the update does not contain any information on the findings of the Inspectorate General's investigation into the allegations of tax evasion by MCM/Glencore. The update instead reiterates some information already mentioned in the website announcement of 31 May 2011, and then simply mentions that the loan was repaid by the borrower to the EIB in 2012 at its own request. The update further mentions that OLAF closed its investigation since no EU budget funds were involved, that the EIB no longer has any contractual relation with MCM/Glencore and that the case was now closed.

52. In the Ombudsman's view, the update by the EIB falls short of any meaningful information concerning the findings of the investigation. It is striking that, on the basis of this update, the public has still no knowledge whatsoever about any of the main findings of the EIB's investigation. Thus this update cannot be considered as a summary of the investigation report.

53. The EIB also stated that the transparency of its investigations is also being ensured by the publication on its website of the Annual Reports drawn up by its Inspectorate-General Fraud investigations Division. However, these Annual Reports describe only in very general terms (in accordance with Article 71 of the Anti-Fraud Policy) the investigations into allegations of fraud and corruption in EIB Group operations and provide relevant statistics. The Ombudsman has not found any information on the EIB's investigation into MCM/Glencore in the 2011 Annual Report[26], which, at the time of this decision, is the last available annual report on the EIB's website.

54. On the basis of the above considerations and findings, the Ombudsman concludes that the EIB, three years after its investigation was closed, failed to provide in its decision of 25 July 2014 sufficient reasoning as to why the disclosure of the investigation report of 16 November 2011 could specifically and actually undermine its investigations. This constitutes an instance of maladministration. She therefore makes a corresponding draft recommendation below, in accordance with Article 3(6) of the Statute of the European Ombudsman.

55. The Ombudsman is of the view that the EIB should carefully reconsider the complainant's request for access to the investigation report. The EIB should thereby duly take into consideration the fact that, by now, three full years have elapsed since its investigation was closed. The Ombudsman notes that, as correctly pointed out by the EIB's Complaints Mechanism, it should also consider whether any of the other exceptions set out in its Transparency Policy may apply. Having inspected the report, the Ombudsman considers that this could be the case with regard to the exceptions relating to the protection of (i) the privacy and the integrity of the individual, in particular in accordance with EU legislation regarding the protection of personal data[27] (Article 5.2.2 of Part A of the Transparency Policy), and (ii) the commercial interests of a natural or legal person (Article 5.2.3, first indent, of Part A of the Transparency Policy). More particularly, as regards the protection of the commercial interests, as also pointed out by the Complaints Mechanism in its Conclusions Report, the Ombudsman notes that MCM/Glencore signed a "Letter of Agreement on Confidentiality" with the EIB on 16 December 2003, but that this confidentiality agreement expired one year after the final maturity of the loan under the finance contract (namely in August 2013)[28].

56. The Ombudsman considers that the Complaints Mechanism's recommendation, namely that the EIB should disclose a redacted version of the investigation report in consultation with the stakeholders concerned or, should this be not possible, provide a meaningful summary of the investigation and its outcome, strikes a fair balance between, on the one hand, the public's right to obtain information about the EIB's fraud investigations and, on the other hand, the public interest that present and future investigations are carried out efficiently and the need to ensure that sensitive commercial information is not released to the public.

57. It is relevant here to draw the EIB's attention to the practice followed in similar cases by the World Bank's Integrity Vice Presidency. The latter's website contains numerous examples of "Redacted Investigation and Forensic Audit Reports"[29].  Through these investigations, the Integrity Vice-Presidency ascertains whether firms and/or individuals have engaged in one of the Work Bank Group’s five sanctionable practices which cover fraud and corruption. The EIB might thus take inspiration from this practice as a means to increase transparency and reinforce the public trust in the Bank's efforts to fight fraud and corruption.

The draft recommendation

On the basis of the inquiry into this complaint, the Ombudsman makes the following draft recommendation to the EIB:

The EIB should reconsider its refusal to grant access to the investigation report of its Inspectorate-General and decide either to grant access to a redacted version of the report or, should this not be possible, to at least provide the complainant with a meaningful summary of the main findings of the investigation report.

The EIB and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the EIB shall send a detailed opinion by 31 March 2015. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

Emily O'Reilly

Done in Strasbourg on 05 December 2014