The background to the complaint

1. The complaint concerns a refusal to grant public access to a document. In February 2009, the complainant, the Federation of Associations for Hunting and Conservation of the EU, applied to the European Commission for public access under Regulation 1049/2001[1] to the final (or provisional) report on the Study on an impact assessment of a proposal for a Council Regulation that implements Article 10 of the UN Firearms Protocol into Community legislation ('the Report')[2]. The Report had been drafted for the Commission by a consortium of consultants in 2008.

2. On 16 March 2009, the Commission granted partial access to the Annexes of the Report, but refused to give full access to the Report. It based its refusal on the first paragraph of Article 4(3) of Regulation 1049/2001, which states that a request for public access can be denied if disclosure of the requested document would seriously undermine the institution's decision-making process.

3. On 26 March 2009, the complainant, by submitting a confirmatory application, asked the Commission to reconsider its decision to deny it access to the Report.

4. On 4 May 2009, the Commission confirmed its decision to grant only partial access to the Report. It again based its decision not to grant full access on the first paragraph of Article 4(3) of Regulation 1049/2001.

5. On 13 May 2009, the complainant turned to the Ombudsman to complain about the Commission's rejection of its application for full access to the Report.

The subject matter of the inquiry

6. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

The Commission acted wrongfully in not granting full access to the final (or provisional) Report.

Claim:

The Commission should grant full access to the report.

The inquiry

7. On 2 July 2009, the Ombudsman asked the Commission to submit an opinion on the complaint. Further to several requests for an extension of the deadline to provide an opinion, the Commission submitted its opinion on 3 March 2010. The opinion was forwarded to the complainant with an invitation to submit observations. The complainant did not submit observations.

8. After a preliminary analysis, the Ombudsman considered it necessary to inspect the Commission's file in order to gather further information for his assessment of whether the exception invoked by the Commission to grant only partial access to the document concerned was justified. The inspection took place in March 2010.

9. On 25 August 2011, the Ombudsman's services wrote to the Commission and asked whether it still considered, in view of the fact that during the Ombudsman's inquiry, the Commission had submitted its legislative proposal to the Council and the European Parliament, that the full version of the report in question was still covered by the exception invoked (as per the first paragraph of Article 4(3), Regulation 1049/2001). The Ombudsman’s letter made clear that his request was without prejudice to his evaluation of the Commission’s original decision to give only partial access. The Commission responded that it now considered it appropriate to grant the complainant full access to the Report, which it did on 13 September 2011.

The Ombudsman's analysis and conclusions

Preliminary remark

10. The Ombudsman welcomes the Commission’s rapid and positive response to his request in August 2011 to consider whether, given the changed circumstances since its contested decision, the Commission could agree to grant full access to the Report. The Ombudsman nevertheless considers it appropriate to address the question of whether the Commission’s original decision not to give full access was justified at the time it was made.

A. Allegation that the Commission acted wrongfully in not granting full access to the final Report

Arguments presented to the Ombudsman

11. The complainant argued that the Commission wrongly invoked the first paragraph of Article 4(3) of Regulation 1049/2001 to refuse full access because there was no evidence that the full disclosure of the Report would seriously undermine the Commission's decision-making process. The fact that the study only provided the basis for further ongoing work within the Commission and it did not necessarily reflect the position or the opinion of the Commission did not constitute grounds to refuse access. In addition, the Commission had merely referred to a category of documents and had thus not made a specific assessment of whether the exception in the first paragraph of Article 4(3) of Regulation 1049/2001[3] was applicable.

12. In its opinion, the Commission stated that it was under an obligation, in accordance with the first paragraph of Article 4(3) of Regulation 1049/2001 to refuse full access to the Report for the following reasons. The Report was delivered to the Commission's Directorate-General for Justice, Freedom and Security in January 2009. At the time of the complainant's request[4], the Report was under discussion by the members of an internal Inter-Service Group on firearms which had its first discussion on the matter on 26 February 2009. Following the work of the Inter-Service Group, the Commission started to prepare an impact assessment. The Report was therefore clearly related to a matter where the decision had not yet been taken.

13. Regarding the serious harm to the Commission's decision-making process, as the Commission's reply to the confirmatory application explained, the undisclosed parts contain possible policy options, which had not been fully discussed by the Inter-Service Group at the time of the request. The Commission therefore considered that disclosure of the information on different opinions under examination at an early stage of the internal discussions in this particularly sensitive matter would have interfered with the internal discussions of the Commission. It would have also caused significant damage to the effectiveness of the Commission's internal discussions and deliberations in that it would have seriously impacted on the capacity of its services to analyse the different options freely and independently. The Commission emphasised that the issue at hand is closely related to public security.

14. The Commission also has an arbitrating role in the public interest, as expressly recognised by Advocate General Geelhoed in the Opinion on the Cresson Case[5], which requires that in certain circumstances, such as in the present case, its internal discussions and preliminary deliberations between its services are not disclosed to the public in order to safeguard its ability to fulfil its tasks effectively. This is an interest to be protected pursuant to the first paragraph of Article 3(4) and Recital 11 of Regulation 1049/2001.

15. Regarding the complainant's argument that the decision-making process to which the study relates might affect hunters, sport shooters and traders' business and therefore its disclosure is of manifest importance to the complainant, it noted that the particular interest which may be asserted by an applicant in obtaining access to a document cannot be taken into account when assessing the request under Regulation 1049/2001. Nevertheless, the Commission is fully aware of the general public interest in its activities. It therefore makes every effort to involve relevant stakeholders in its decision-making process. In line with this approach, the Commission conferred the important task on the contractor for the study concerned to collect the opinions of various stakeholders, Member States' authorities, civil society organisations, business representatives and of other interest representatives. This gave the general public, including the complainant, an opportunity to put forward their views and comments on the subject. The study in question reflects these views and the Commission's services are therefore taking due account of them. Finally, the Commission also took due account of the interest in transparency and thus in granting as wide access to the Report and its Annexes as possible.

16. Regarding the Ombudsman's specific question in relation to paragraph 86 of the decision in the Muñiz case[6], the Commission acknowledged that, in its decision on the confirmatory application, it referred to "unsolicited and undue interference by members of the public" as a factor in its decision, without, however, adducing any evidence of it. Nevertheless, it provided sufficient reasons for its decision on the partial refusal. Furthermore, there is a substantive difference between the nature of the documents and the procedure in the Muñiz case and in the present one. In the Muñiz case, the documents in question reflected the discussions in a working group, composed of representatives of the Member States, on technical matters for a customs classification decision. The discussions reflected in those documents had a direct bearing on the final opinion taken by the committee on the relevant matter. In addition, in the Turco case[7], the Court accepted, with regard to opinions of the Council Legal Service given in the context of a legislative process, that a particular opinion being of a particularly sensitive nature may be protected by the relevant exception. This possibility must a fortiori apply to documents considered in preliminary discussions within the Commission's services; in particular where a matter is highly sensitive, as in the present case. Consequently, due to the important differences in the circumstances and nature of the documents in the two cases, the findings of the Court in the Muñiz case are not directly applicable to the case at hand.

17. The Commission concluded its opinion with the view that it was entitled to decide to grant partial access to the requested report and to refuse access to the sections of the document examining the possible options, at a time when the Commission's services had not yet examined these options and formulated their views.

The Ombudsman's assessment

18. Regulation 1049/2001 reflects the intention to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are made as openly as possible and as closely as possible to the citizen. It seeks to achieve the aim of making decisions as openly as possible and as closely as possible to the citizen by granting the public a right of access to documents of the institutions in all the areas of activity of the European Union, subject to certain exceptions that are based on the need to protect defined objective public and private interests. This right of public access to documents of the institutions enhances the democratic nature of the EU institutions.

19. According to settled case-law of the Union courts, the exceptions to public access to documents must be interpreted and applied strictly, so as not to frustrate the application of the general principle that the public should be given the widest possible access to documents held by the institutions[8]. Furthermore, the principle of proportionality requires that exceptions from the general rule that access must be given remain within the limits of what is appropriate and necessary for protecting the defined objective public and private interests which are set out in those exceptions[9].

20. The examination required for the processing of a request for access to documents must be specific in nature. First, the mere fact that a document concerns an interest protected by an exception is not in itself sufficient to justify the application of that exception[10]. In principle, the application of an exception can be justified only if the institution has previously determined that access to the document would specifically and actually undermine the protected interest (if the protected interest is the decision-making process within the institution, it must be determined that access to the document would specifically and actually seriously undermine the protected interest[11]). In addition, the risk of the protected interest being (seriously) undermined must be reasonably foreseeable and not purely hypothetical[12]. For example, it is not sufficient that a document concerns the decision-making process within an institution; it must be reasonably foreseeable and not purely hypothetical that the public disclosure of the document would seriously undermine that decision-making process. The examination carried out by an institution to determine that a protected interest would be (seriously) undermined by public disclosure of a requested document must be apparent from the reasoning set out in the decision limiting public access[13].

21. If the exception which is considered applicable relates to Article 4(2) or (3) of Regulation 1049/2001, it must also be verified that there is no overriding public interest justifying disclosure of the document concerned.[14] The examination as to whether or not there is an overriding public interest must also be apparent from the reasons for the decision[15].

22. In the present case, the Commission argued that access to the Report had to be refused on the basis of the exception provided for in the first paragraph of Article 4(3) of Regulation 1049/2001. To justify the application of the exception protecting its decision-making process, the Commission argued that it had commissioned the drawing up of the Report as part of its ongoing preparatory work on a legislative proposal for implementing Article 10 of the United Nations’ Firearms Protocol. The Report was sent to the Commission's Directorate-General for Justice, Freedom and Security in January 2009 to be discussed by an internal Inter-Service Group on firearms. On the basis of the deliberations of the Inter-Service Group, the Commission was to prepare an Impact Assessment, which was then to be discussed by the Inter-Service Group. Finally, the Impact Assessment was to be submitted together with a legislative proposal. When the complainant submitted its request for access, not all the opinions contained in the Report had been fully discussed by the Inter-Service Group at that point. In addition, even at the time of the complainant's confirmatory application, the Report was being used for further ongoing work within the Commission, such as, for example, the drafting of the Impact Assessment.

23. In light of the above, the Ombudsman agrees that the document to which the complainant requested access concerned the decision-making process within the Commission and that the request for public access was made at a time when that decision-making process was ongoing. However, as noted above, it is not sufficient that a document concerns the decision-making process within an institution; it must be reasonably foreseeable and not purely hypothetical that the public disclosure of the document would seriously undermine that decision-making process.

24. The decision-making process in the present case was part of a process intended to lead to legislation: the Report was delivered in the framework of an ongoing preliminary work aimed at drafting an Impact Assessment to assist the Commission in developing a proposal for a Regulation aimed at implementing Article 10 of the UN Firearms Protocol within the Union. The Ombudsman emphasises that while Regulation 1049/2001 applies fully to all documents in the possession of an institution, irrespective of the nature of the documents, the Union courts have underlined the special importance of openness and transparency in the legislative process. In the Ombudsman’s view, the same principle applies to the Commission’s work in preparing proposals for legislation.

25. In fact, the established case-law of the Union courts hold that in order for the citizens to be able to "exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information"[16] (emphasis added) and thereby scrutinise all the relevant information which has formed the basis of a particular legislative act. Indeed, when an institution responds to requests for access to documents relating to the adoption of EU legislation, it must bear in mind the special importance which obtaining access to documents relating to the adoption of EU legislation can have for citizens in the democratic legal order of the EU[17]. Granting access to such documents enables them to understand the various considerations underpinning legislation which will affect their lives. Such openness is, in sum, a precondition for the effective exercise of the democratic rights of EU citizens[18]. In particular, this means that the public should be allowed, to the greatest extent possible, to debate the various issues that are being debated by the institutions in relation to possible future legislation.

26. It must also be underlined that the exception provided for in the first paragraph of Article 4(3) of Regulation 1049/2001 can only be relied upon if disclosure would seriously undermine the institution's decision-making process.

27. The Commission argued, both in its confirmatory application and in its opinion on the present complaint, that the deleted parts of the Report contained possible policy options which might or might not be taken into account by the Commission, and which were "particularly sensitive". Disclosure of the information contained therein would, in the Commission's view, have exposed the Commission to "unsolicited" and "undue pressure" by members of the public and possible stakeholders when the internal discussions by the Commission's services were at a preliminary stage. This could, in the Commission's view, have caused significant damage to the effectiveness of the Commission's internal discussions and deliberations because it could have seriously impacted on the Commission's capacity to analyse the different options freely and independently.

28. As regards the allegedly sensitive nature of the document, the Ombudsman has carefully analysed the copy of the full Report, obtained during his inspection of the Commission's file. He agrees that the content of the Report was important for the public (the Report details policy options relating to the control of firearms and thus contains information closely related to public security) and that its release at the time of the application would be likely to have had an impact on public opinion. However, Article 4(3) of Regulation 1049/2001 does not apply because the release of the documents has an impact on public opinion, and provokes a public reaction. Rather, Article 4(3) of Regulation 1049/2001 can only apply if the release of a document would provoke a public reaction, the effect of which would be to seriously undermine the decision-making process within the institution concerned. As the General Court has stated, the fact that an issue is a "sensitive matter", followed with great interest by the media, cannot constitute in itself an objective reason sufficient to justify the concern that the decision-making process would be seriously undermined, without calling into question the very principle of transparency intended by the Treaties[19].

29. It is the Ombudsman's view that Article 4(3) of Regulation 1049/2001 does not apply simply because the content of a document may provoke a public reaction (which is likely to be the case as regards the publication of any document of importance to the public). Rather, Article 4(3) of Regulation 1049/2001 can only apply if that public reaction to the content of the disclosed document would in turn lead to targeted external pressure on the institution's decision-making process and if the decision-making process would be substantially affected owing to that targeted external pressure[20]. The Ombudsman considers that for such targeted external pressure to be relevant as regards the application of Article 4(3) of Regulation 1049/2001, the pressure must be real and so intensive and effective as to seriously undermine the decision-making process[21]. The fact that an institution might be inconvenienced by targeted external pressure (by, for example, having to respond to queries from the public or lobbyists) is not sufficient to meet this test.

30. The Ombudsman emphasises, however, that in a democratic society, there exists a general presumption that interest and indeed pressure from the public will be positive for the decision-making process, especially when that decision-making process is part of the legislative process[22]. As such, in order to rebut this general presumption, precise and convincing arguments must be put forward.

31. It is, in the Ombudsman's view, reasonably foreseeable and not purely hypothetical that the public disclosure of the requested document at the time of the original application would have led to a certain public reaction (given the importance of the subject matter). However, having carefully reviewed the requested document, it is certainly not reasonably foreseeable that the public reaction would have led to targeted negative pressure on the institution to the extent that it would have seriously undermined the institution’s decision-making process.

32. Finally, the Court also established in the Agrofert case[23] that justifications put forward in a general and abstract manner without being substantiated by detailed arguments based on the content of the document in question cannot suffice for the invocation of the exception contained in the first paragraph of Article 4(3) of Regulation 1049/2001.

33. The Ombudsman considers that the arguments submitted by the Commission are not sufficiently detailed and do not appear to be based on the content of the Report itself. Indeed, the arguments put forward by the Commission would seem to be applicable to any such report, irrespective of its content, forming part of preparatory work in an important legislative process. The Commission did not therefore sufficiently demonstrate why the disclosure of the Report at the time of the application would have seriously undermined its decision-making process. Consequently, the Ombudsman finds that the Commission wrongly refused the complainant's request for access to the Report. This was an instance of maladministration.

34. Had the Commission established that disclosure of the Report would seriously undermine its decision-making process, it would then have been incumbent on the Commission to set out in the decision refusing access its reasoning as to whether or not there was an overriding public interest in disclosure.

35. As regards the issue of whether there is an overriding public interest in disclosure, the Commission stated that the complainant had not put forward reasons why there was an overriding public interest in disclosure. The Ombudsman underlines that it is good administrative practice for an institution fully to consider all possible issues of public interest in disclosure of a document. As such, while an insitution should carefully examine the arguments in relation to overriding public interests in disclosure, put forward by a person seeking public access under Regulation 1049/2001, the institution concerned should also take into consideration, ex officio, any other possible issues of public interest. In fact, the institution holding the document is in a better position to evaluate all possible issues relating to the public's interest in disclosure of the documents given that, contrary to the applicant, it clearly knows the specific content of the document in question[24]. This is particularly important as regards documents relating to the legislative process.

36. In the present case, the complainant argued that, as a hunting federation, it had a major interest in obtaining access to the full Report. In this context, the Union Courts held[25] that the particular interest which may be asserted by a party requesting access to a document concerning him personally cannot be taken into account. Furthermore, Regulation 1049/2001 does not grant specific rights of access to interested parties. The reason for which access is requested is therefore irrelevant under Regulation 1049/2001 and a request for access does not then depend on the existence of any specific or legitimate interest on the part of the applicant. However, even if the specific interest of the complainant could not be taken into consideration when determining if there was an overriding public interest in disclosure, the Commission should, in its decision, have shown that it had sought to identify, ex officio, whether there was an overriding public interest in disclosure. It did not do so. This was also an instance of maladministration.

37. The Ombudsman recalls that on 13 September 2011, in response to a specific request from the Ombudsman (see paragraph 9 above), the Commission granted full access to the requested Report. Since the Commission has now given the complainant full access to the report, the maladministration identified in paragraphs 33 and 36 above relates only to the past. It is, therefore, appropriate for the Ombudsman to close his inquiry with a critical remark concerning the Commission’s original decision.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

In its original decision refusing full access to the Report, the Commission did not sufficiently demonstrate (a) why full disclosure at that time would have seriously undermined its decision-making process and (b) that there was no overriding public interest in disclosure.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 3 November 2011

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[1] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.

[2] The UN Firearms Protocol concerns general requirements for export, import and transit licensing or authorisation systems for firearms. Article 10 of the Protocol requires each State which is party to the Protocol to establish or maintain an effective system of export and import licensing or authorisation for firearms, as well as of measures on international transit, for the transfer of firearms, their parts and components and ammunition.

[3] Article 4(3), first paragraph, of Regulation 1049/2001 provides: "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

[4] The complainant made its request on 25 February 2009.

[5] Opinion of Advocate General Geelhoed, delivered on 23 February 2006, on Case C-432/04 Commission v Cresson, paragraph 72: "In the case of the Commission, there is a direct functional relationship between the standard of conduct to be displayed by Members of the Commission and its role in the institutional framework of the Community. In this respect it is important to emphasise that, besides being the executive body of the Community, the Commission fulfils a vital arbitrating role in conciliating interests of the Member States, trade and industry and Community citizens in the process of defining Community policies and proposing Community legislation. In certain areas, it also fulfils a quasi-judicial role, as in the field of competition or in enforcing Community law obligations against the Member States under Articles 226 and 228 EC. The Commission can only succeed in fulfilling these tasks if it and its individual members are seen to operate with complete impartiality and in complete independence. Only then will it be able to command the authority to gain the requisite confidence of the other institutions of the Community, the Member States and the general public."

[6] Case T-144/05 Muñiz v Commission [2008] ECR II-335, paragraph 86 of which states that "the protection of the decision-making process from targeted external pressure may constitute a legitimate ground for restricting access to documents relating to the decision-making process. Nevertheless, the reality of such external pressure must be established with certainty, and evidence must be adduced to show that there was a reasonably foreseeable risk that the classification decision to be taken would be substantially affected owing to that external pressure."

[7] C-39/05 and C-52/05 P – Turco v Council, [2008] ECR I-4723

[8] Case C-64/05 P Sweden v Commission [2007] ECR I-11389, paragraph 66; Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, paragraph 36; and Franchet and Byk v Commission, ECR II-2023, paragraph 84.

[9] Case C-353/99 P Council v Hautala [2001] ECR I-9565, paragraph 28.

[10] Case T-20/99 Denkavit Nederland v Commission [2000] ECR II-3011, paragraph 45.

[11] Whereas the exceptions provided for in Article 4(1) and 4(2) of Regulation 1049/2001 apply if the protected interest would be "undermined" by the disclosure of the document, Article 4(3) of Regulation 1049/2001 only applies if the interest in question, namely the institution's decision-making process, would be "seriously undermined".

[12] Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 56.

[13] Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69, and Franchet and Byk v Commission, cited above, paragraph 115.

[14] See, to that effect, Joined Cases T-355/04 and T-446/04 Co-Frutta v Commission [2010] ECR II-1, paragraph 123)

[15] The Ombudsman has taken the view that the analysis of an overriding public interest must not only take into account the arguments put forward by the applicant. It must take into account all relevant arguments including those which, ex officio, the institution concerned is of the view exist (see Draft recommendation of the European Ombudsman concerning his inquiry into complaint 3106/2007/TS against the European Medicines Agency at paragraph 26, available on the Ombudsman's website). See also See Case T-471/08, Toland v Parliament, judgment of 7 June 2011, paragraph 83, not yet published in the ECR, where the General Court found that Parliament had not sufficiently reasoned the absence of an overriding public interest in disclosure. The General Court did not limit the responsibility of Parliament to deal only with those arguments put forward by the applicant as regards an overriding public interest in disclosure.

[16] Case T-233/09 Access Info Europe v Council, judgment of 22 March 2011, not yet published in the ECR, paragraph 69.

[17] For the sake of clarity, the Ombudsman also emphasises that the special importance of transparency as regards legislation cannot, obviously, be used as an argument for lesser transparency as regards the administrative application of legislation (see the Ombudsman's draft recommendation in complaint 2293/2008/(BB)(FOR)TN, paragraph 31). The Ombudsman stresses that openness makes it possible for citizens to participate more closely in the decision-making process and for the administration to enjoy greater legitimacy and to be more effective and more accountable to the citizen in a democratic system and thus it contributes to strengthening the principles of democracy and respect for fundamental rights (see Recital 2 of Regulation 1049/2001 in this regard). This notion is further reinforced in Recital 6 of Regulation 1049/2001, which specifically provides that "wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions' decision-making process. Such documents should be made directly accessible to the greatest possible extent".

[18] Case C-39/05 P Sweden and Turco v Council [2008] ECR I-4723, paragraph 46.

[19] See Case T-471/08, Toland v Parliament, judgment of 7 June 2011, paragraph 80, not yet published in the ECR.

[20] See Case T-144/05 Muñiz v Commission [2008] ECR II-335, paragraph 86, as cited above.

[21] It should also be noted that if certain targeted pressure is put on an institution (through, for example, lobbying), an institution is not impeded from taking measures to deal with that pressure (see Case C-39/05 P Sweden and Turco v Council [2008] ECR I-4723, paragraph 64).For example, it would normally suffice, in order to deal with any targeted external pressure from lobbyists, to send a polite response to the lobbyists informing them of the stage the decision-making process is at.

[22] See also Case T-121/05 Borax v Commission [2009] ECR II-27, paragraph 70, where the General Court stated that "scientific opinions obtained by an institution for the purpose of the preparation of legislation must, as a rule, be disclosed, even if they might give rise to controversy or deter those who expressed them from making their contribution to the decision-making process of that institution" (emphasis added). The same principle would apply to all technical reports produced in the context of preparing legislation.

[23] Case T-111/07 Agrofert Holding v Commission, judgment of 7 July 2010, not yet published in the ECR, paragraph 144.

[24] See the Ombudsman's draft recommendation in complaint 2293/2008/(BB)(FOR)TN, paragraph 36.

[25] Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [2006] ECR II-2023, paragraph 137.