THE BACKGROUND TO THE COMPLAINT

1. The complainant is a non-governmental organisation acting in the field of environmental protection. On 1 March 2007, it asked the Commission for access to information and documents held by the Directorate-General for Enterprise and Industry (DG ENTR), and by former Vice-President Verheugen. In its application for access, it specified that the information and documents requested related to meetings between the Commission and representatives of car manufacturers, during which the Commission's approach to carbon dioxide emissions from cars as of 1 January 2006 was discussed.

2. On 25 June 2007, the complainant submitted a confirmatory application to the Secretary-General of the Commission.

3. On the same day, it received an e-mail from DG ENTR explaining that, for administrative reasons, the complainant's request had been divided into two parts: one that would be answered by DG ENTR, and the other one, which would be answered by the Cabinet of former Vice-President Verheugen. Subsequently, DG ENTR sent to the complainant copies of the documents in its possession which related to the subject matter of its application.

4. The Commission granted only partial access to the documents held by the Cabinet of former Vice-President Verheugen and relating to carbon dioxide emissions. In reasoning its decision, it explained that some of these documents, entitled 'briefings', were covered by the exception on the right to access provided for in Article 4(3) first subparagraph of 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 ('Regulation 1049/2001')[1]. It also stated that, since the complainant's request specifically covered carbon dioxide emissions from cars, those parts of the briefings which were not related to this issue had been erased as well. On 2 October 2007, the complainant filed a complaint with the Ombudsman against the Commission's decision.

THE SUBJECT MATTER OF THE INQUIRY

5. The complainant originally alleged that:

1. the Commission wrongly refused access on the basis of Article 4(3) first subparagraph of Regulation 1049/2001[2] and failed to specify which decision-making process it referred to.
2. the Commission, when stating that "since the complainant's request covered specifically carbon dioxide emissions by cars, those parts of the briefings, which are not related to this issue, have been expunged", did not justify on the basis of Regulation 1049/2001 why only partial access could be given.
3. the Commission did not (a) provide copies of documents, including correspondence held by DG ENTR, concerning the meetings between the representatives of car manufacturers and the DG officials and/or concerning the Commission's approach to carbon dioxide emissions from cars, dated before and after 1st January 2006 and (b) did not explain why it could not do so.

6. The complainant claimed that the Commission should grant it access to the requested information and documents.

THE INQUIRY

7. The complaint was forwarded to the Commission with a request to provide an opinion by 31 January 2008. The Commission requested an extension of time, which was granted until 29 February 2008. On 10 April 2008, the Commission sent its opinion, which was forwarded to the complainant with an invitation to submit observations. On 28 May 2008, the complainant sent its observations.

8. On 1 July 2008, the Ombudsman asked the Commission for further information relating to the present complaint. On 30 September and 29 October 2008, the Commission requested extensions of the deadline to send its reply to the Ombudsman's further inquiries. On 25 February 2009, the Commission sent its reply, which was also forwarded to the complainant with an invitation to submit observations. On 14 April 2009, the complainant sent its observations.

9. On 7 September 2009, the Ombudsman made a draft recommendation to the Commission. On 27 November 2009 and 27 January 2010, the Commission asked for extensions of time to send its detailed opinion on the draft recommendation, which were granted until 31 March 2010. On 29 March 2010, the Commission sent its reply to the Ombudsman's draft recommendation, which was forwarded to the complainant with an invitation to submit observations. On 22 April 2010, the complainant sent its observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

10. Originally, the present case concerned access to the following Commission documents: (i) briefings for the attention of Vice-President Verheugen; and (ii) an internal note (Note from Mr Zourek to Ms Erler, Re: Legislative framework to reduce carbon dioxide emissions from cars). These documents were drafted by the Commission’s services for former Vice-President Verheugen, so that he could prepare for meetings with representatives from the car industry. The meetings were organised in the context of consultations held by the Commission with key stakeholders concerning the review of the Community Strategy to reduce carbon dioxide emissions from passenger cars.

11. The Ombudsman notes that, in the course of his inquiry, the Commission disclosed parts of the briefings and annexes to the internal note to which it originally applied the exception under Article 4(3) first subparagraph of Regulation 1049/2001. The Commission revised its position because, in the meantime, it had adopted the Proposal for a Regulation setting emission performance standards for new passenger cars[3]. However, the Commission decided to apply another exception, based on Article 4(3) second subparagraph to the remaining parts of the briefing notes and to the internal note as such. The complainant did not agree with the Commission’s new decision either, and therefore modified its allegation accordingly.

A. Allegation of wrongful refusal to grant access to the relevant documents and related claim

Arguments presented to the Ombudsman

12. The complainant alleged that the Commission wrongly refused access on the basis of Article 4(3) second subparagraph[4] of Regulation 1049/2001 and failed to specify which decision-making process it referred to. The complainant claimed that the Commission should grant it access to the requested information and documents.

13. In its opinion, the Commission explained that it had referred to its Proposal for a Regulation setting emission performance standards for new passenger cars ('the Proposal'). At the time when the briefings were drafted, the Commission had not yet adopted the Proposal. The briefings were drafted by the Commission's staff for the Vice-President in preparation for his meetings with representatives from the car industry. The parts which were deleted "reflected internal discussions within the Commission during the drafting and adoption of the [P]roposal and contain opinions expressed with regard to possible alternatives. Some parts contained advice given to the Vice-President by staff in view of the meetings."

14. After it had adopted the Proposal, the Commission made a new assessment of the deletions made in the briefings. As a result, it enclosed, with its opinion, twelve new paragraphs of the 'briefings', which had previously been refused on the basis of Article 4(3) first subparagraph of Regulation 1049/2001.

15. As regards the deletions which it maintained, the Commission explained that they were based on Article 4(3) second subparagraph of Regulation 1049/2001[5]. In this respect, it noted that "these parts contain summaries of internal discussions within the Commission on policy options during the drafting and the adoption of the [P]roposal, opinions expressed with regard to possible alternatives; positions that the representatives from the car industry were expected to take; assessment on possible positions on Member States and recommendations for the line to be taken by the Commissioner." In the Commission's view, disclosure of these parts of the briefings "would still severely affect the Commission's room for manoeuvre in the inter-institutional debate and thus seriously curtail its capacity to react adequately to positions taken by the two co-legislators." The briefings "reflect internal discussions within the Commission and possible alternatives, which are still relevant as the Commission retains the possibility to amend its [P]roposal during the legislative process in Parliament and Council."

16. In its observations, the complainant argued that Article 4(3) second subparagraph of Regulation 1049/2001 only applies to documents "containing opinions for internal use as part of deliberations and preliminary consultations within the Commission." However, the Commission failed to specify which deliberations and preliminary consultations this exception applied to.

17. In the complainant's view, the Commission's explanation could not justify the application of the above exception. The deleted paragraphs were contained in the speaking/defence points of the briefings, which were prepared in view of former Vice-President Verheugen's meetings with representatives from the car industry. The information contained in these paragraphs might well have been disclosed "proactively" or "reactively" by former Vice-President Verheugen during these meetings. Therefore, the information should also be available to the general public and not only to those present at these meetings. In any event, the exception contained in Article 4(3) second subparagraph of Regulation 1049/2001 would not apply if there was an overriding public interest in disclosure. The Commission did not take into consideration the existence of such an interest in disclosure.

18. In its reply to the Ombudsman's further inquiries relating to the present allegation, the Commission reiterated that disclosure of the deleted parts of the briefings at issue would seriously undermine its decision-making process. This was because they contained individual opinions for internal use during deliberations and preliminary consultations within the institution. It was of paramount importance to preserve its staff's freedom of expression to enable the discussions to take place in a frank and open environment. Only then could staff correctly assess the issues at stake. If officials knew that their opinions may be disclosed to the public, they would be reluctant to give their opinions freely in the future. However, their advice is essential to the Commission’s decision-making process and would deprive the Members of the Commission of essential information for taking balanced decisions.

19. The Commission advanced similar arguments regarding the disclosure of the 'internal note' (it only disclosed the annexes).

The Ombudsman's assessment leading to a draft recommendation

20. As stated on multiple occasions by the Court of Justice of the EU, the right of access to Commission documents exists as a matter of principle, and a decision to refuse access is valid only if it is based on one of the exceptions laid down in Article 4 of Regulation 1049/2001[6].

21. In view of the objectives pursued by Regulation 1049/2001, in particular the aim of ensuring the widest possible access to documents held by the Council, the European Parliament and the Commission[7], any exceptions to this principle have to be interpreted strictly[8].

22. Furthermore, according to established EU case-law, the application of the exception may be justified only if the institution has previously assessed: (i) whether access to the document would specifically and actually undermine the protected interest; and (ii) if yes, in the circumstances referred to in Article 4(2) and 4(3) of Regulation 1049/2001, whether there was no overriding public interest in disclosure. However, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. That examination must be apparent from the decision[9].

23. Article 4(3) second subparagraph of Regulation 1049/2001, which is relevant in the present case, provides:

"Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

24. The question which arose in the present case was whether the disclosure of the documents in question would seriously undermine the Commission's decision-making process.

25. In its opinion on the complaint, which was not very detailed, the Commission relied on the above Article 4(3) second subparagraph and refused full access to the 'briefings' and to the 'internal note' on the grounds that: (i) changes to the Proposal were still possible and a risk therefore existed that disclosure could adversely affect a decision-making process regarding theses changes, which could still be reopened (first argument); and (ii) its officials' freedom of expression was at risk, were they to know that their opinion could become public (second argument).

26. In light of the case-law referred to in paragraph 21 above, and on the basis of the explanation provided by the Commission so far, the Ombudsman reached the preliminary conclusion that he could not accept the Commission's above arguments. He considered that the risk for the Commission's decision-making process was not clearly foreseeable, but rather hypothetical.

27. As regards the Commission's first argument, even if this argument were not manifestly unreasonable, the Commission did not demonstrate the existence of a concrete risk capable of undermining its decision-making process. It appeared that the risk invoked depended on certain circumstances (for example, the eventuality that the Commission were to decide to change its Proposal). As a result, it was not certain, but rather hypothetical. In this respect, the Ombudsman understood that the Commission could change its proposal at any moment. It follows that, according to the Commission's above reasoning, all legislative proposals and opinions for internal use concerning these proposals would always be banned from further disclosure, which is manifestly contradictory to the aim of Regulation 1049/2001.

28. Indeed, if the 'briefings' and the 'internal note' were relevant for the actual Proposal and any possible further amendments, they were part of the Commission's legislative activity. In this respect, the Ombudsman referred to recital 6 of Regulation 1049/2001, which states 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."

29. As regards the Commission's second argument, it appeared that the Commission wished to suggest that the authors of the advice given to former Vice-President Verheugen would not have expressed their views if they had known that their advice could be disclosed to the public. In the Commission's view, such disclosure may deter officials from expressing their views freely in the course of its decision-making process. The Commission, therefore, argued that its staff would prefer to refrain from expressing their views in such circumstances. This, in turn, would hinder its future decision-making procedures.

30. The Ombudsman recalled, in this respect, his finding in a previous decision that:

"upholding such an argument would effectively lead to the conclusion that the Administration may, in general, refuse disclosure of documents containing opinions for internal use, even after the relevant decision has been taken, on the ground that disclosure would affect adversely its interest in having free internal discussions and deliberations. This approach clearly cannot be squared with the principle of strict interpretation of the exception laid down in Article 4(3) second subparagraph; in fact, it would amount to little less than a broad license for non-disclosure of such documents, in obvious disregard of the intent of the Community legislator who enacted Regulation 1049/2001."[10]

31. Moreover, as he pointed out in his draft recommendation on complaint 355/2007/TN[11], Article 4(3) is intended to protect the internal decision-making process of the institutions. In certain circumstances, the institution's decision-making ability may be compromised if documents which are immediately and directly to be made use of by the institution in order to adopt a future decision were to come into the public domain before that decision is taken. Such an eventuality could materialise by virtue of the fact that such premature disclosure of documents may lead to undue external pressure being exerted on the institution and/or its services (Article 4(3), first subparagraph). An institution's decision-making ability may also be compromised if internal documents are made public after a decision has been taken (Article 4(3), second subparagraph). However, the danger that an institution's decision-making ability will be compromised is greatly reduced once a decision has been taken. In such circumstances, there is only a limited danger that undue external pressure will be effectively exerted on the institution or its services as a result of public disclosure of the documents.

32. Finally, as correctly noted by the complainant, the staff's analysis, reflections and criticism contained in the documents in question were in fact intended for the public's attention. They were designed to be submitted for discussion with the car industry, although the arguments contained therein could be freely selected for such discussion by former Vice-President Verheugen.

33. In light of the above considerations, the Ombudsman did not agree that a serious risk to the Commission's decision-making process would exist if the "freedom of expression of the authors of documents" is "jeopardised". To refute this, the Commission would have to provide convincing and concrete reasons relating to the particular circumstances of the case under consideration. The Ombudsman considered that the Commission’s above justification for why there was a serious risk to its decision-making process in the present case was general and abstract and certainly not individualised. It did not specify how disclosure of the deleted parts of the documents in question would concretely and effectively undermine the Commission's decision-making process concerning the adoption of the new Regulation. Given these circumstances, it was not necessary to examine whether there was an overriding public interest in disclosure.

34. In light of the above, the Ombudsman concluded that the Commission wrongly refused access to the deleted parts of the briefings and the internal note on the basis of the exception in Article 4(3) second subparagraph of Regulation No 1049/2001. This was an instance of maladministration. He therefore made the following draft recommendation to the Commission, in accordance with Article 3 (6) of his Statute.

"The Commission should grant access to the deleted parts of the 'briefings' and the 'internal note' relating to carbon dioxide emissions."

The arguments presented to the Ombudsman after his draft recommendation

35. The Commission did not accept the Ombudsman's draft recommendation. It pointed out that the risk for its decision-making process was not hypothetical, given the "sensitive and controversial nature of the issue of carbon dioxide emissions".

36. It recalled that disclosing the content of internal discussions on the subject at a stage when its Proposal was being considered by Parliament and Council would effectively weaken its position in the ongoing discussion with the other two institutions. On 2 April 2008, when the Commission reviewed its position on the disclosure of the briefings, its own decision-making process as regards the adoption of the Proposal had been completed. However, the Commission retained the possibility to amend its proposal in light of the discussions in Parliament and Council. The Commission took the view that its ability to propose compromises and to "act as an honest broker" during the inter-institutional phase of the legislative process was at stake. Therefore, the Commission did not disclose information that could jeopardise its room for manoeuvre.

37. The briefings and the internal note contained information on the state of play with regard to the adoption of the Commission's Proposal for a Regulation setting emission performance standards. They were not part of the Commission's legislative activity, but background documents for former Vice-President Verheugen, so that he could prepare meetings with representatives of the car industry.

38. As regards the exception laid down in Article 4(3) second subparagraph of Regulation 1049/2001, the Commission pointed out that it is essential for it to be able to draw on free and frank advice from its staff when considering new policies. In the present case, disclosure of parts of the briefings and of the internal note reflecting internal discussions would have seriously affected the Commission's role in the inter-institutional phase of the decision-making process even after the adoption of its Proposal. The Commission acknowledged that the risk for its decision-making ability was reduced after the decision had been taken. However, in April 2008, the inter-institutional phase of the decision-making process was still ongoing and disclosure would have affected the Commission's ability to amend its Proposal. The Commission emphasised that it had disclosed all the factual information contained in the briefings to the complainant. The representatives of the car industry did not have access to these briefings.

39. The Commission further explained that its Proposal was adopted on 23 April 2009. Subsequent to that date, it re-examined the briefings and the internal note and decided that full access could be granted to six briefings and to the internal note. The Commission attached copies of the above documents to its opinion on the draft recommendation. The Commission decided to maintain some deletions in five of the briefings. These are outlined below.

40. As regards two of the briefings, namely, Briefing for the meeting with Mr Marchionne on 14 November 2006 and Briefing for the visit to Daimler-Chrysler on 15 November 2006, the Commission explained that some paragraphs were deleted because they reflected internal discussions on different approaches to carbon dioxide emissions. In the Commission's view, disclosure of the above paragraphs would seriously undermine the Commission's decision-making ability. In this respect, the Commission explained that it acts as a college when taking such decisions, the majority of which are taken by consensus. Before taking a decision, the Commission holds wide stakeholder consultations. Its services then consider all the information and viewpoints collected through the consultation process and submit a proposal which best reflects the public interest. The collegial decision-making within the Commission ensures that national or sectoral interests do not unduly influence the decision taken. In order to have genuine discussions within the Commission's services, staff involved in policy shaping must be able to give their views free from external pressure.

41. As regards another briefing, namely, Briefing for the meeting with Mr Streiff, Chairman of PSA, on 3 May 2007, the Commission deleted two paragraphs. The first deleted paragraph contains arguments that Mr Streiff could have made in his meeting with former Vice-President Verheugen and the second contains possible arguments that former Vice-President Verheugen could have used in the discussion. The Commission pointed out that the content of these paragraphs is speculative. Their disclosure would be harmful to the Commission's ability to have preliminary discussions with stakeholders and would thus affect the Commission's decision-making process. It would make it impossible for the Commission to "test the field" in preparation of new policies. In this respect, the Commission emphasised the importance of having free discussions with the stakeholders in order to obtain their support for its proposed policies.

42. As regards the other two briefings, namely, Briefing for the meeting with Mr Foster, President of GM Europe, on 4 May 2007 and Briefing for the annual meeting of Daimler-Chrysler on 15 May 2007, the Commission explained that the content of the deleted paragraphs is almost identical to the second paragraph deleted in the briefing for the meeting with Mr Streiff and that they were withheld for the same reasons explained above.

43. In its observations on the above Commission reply, the complainant pointed out that the exception laid down in Article 4(3) second subparagraph of Regulation 1049/2001 should be interpreted strictly. In its view, the Commission's explanation, namely, that the deleted paragraphs contain arguments that the Commissioner could use in talks or internal discussions on the proposed strategy for the meetings with representatives of the car industry is not sufficient to allow it to fall under the provisions of Article 4(3) second subparagraph of Regulation 1049/2001.

The Ombudsman's assessment after his draft recommendation

44. The Ombudsman welcomes the Commission's decision to disclose additional paragraphs of the briefings and to grant full access to the internal note.

45. As regards the deletions maintained by the Commission, the Ombudsman understands that the Commission relies on two arguments to refuse full access to the 'briefings' in question, namely, that: (i) its staff could not have genuine discussions in the framework of the collegial decision-making process within the Commission and that the preparation of new policies would be affected, if the content of theses discussions were to become public (first argument) and (ii) the Commission's ability to have preliminary discussions with stakeholders with an eye to elaborating new policies would be compromised ('test the field'), if the content of these consultations were to become public (second argument).

46. As regards the first argument, the Ombudsman considers it useful to differentiate between the principle of collegial decision-making within the Commission and its staff's freedom of expression. In this respect, he understands that the collegial decision-making process applies to the decisions taken by the Members of the College of the Commission and not to the consultations held within the Commission's services in view of preparing new policies.

47. According to the case-law, the collegiate nature of the Commission means that "decisions should be the subject of a collective deliberation and that all the Members of the college of Commissioners bear collective responsibility on the political level for all decisions adopted" (Ombudsman's emphasis)[12]. If the Commission wished to argue that disclosure of the paragraphs in question would affect the ability of the College Members to take decisions collectively by consensus (according to the principle of collective responsibility), the Ombudsman accepts, as a matter of principle, that discussions and exchange of views between Commissioners during the meetings of the college are confidential[13] and their disclosure to the public could affect the Commission's decision-making process.

48. The Ombudsman notes, however, that the Commission gave access to the Briefing for the forum for the automobile and society on 6 February 2007, which reads as follows: "The topic of car emissions is a highly contentious one. There have been numerous media reports regarding the disagreement between Vice-President Verheugen and Commissioner Dimas on this matter" (Ombudsman's emphasis). It follows that, in the above document, the Commission itself acknowledged the fact that Members of the College held different approaches towards the issue of carbon dioxide emissions.

49. Therefore, the Ombudsman does not understand why the documents entitled Briefing for the meeting with Mr Marchionne on 14 November 2006 and Briefing for the visit to Daimler-Chrysler on 15 November 2006 could not be fully disclosed as well. They also outline, according to the Commission, different approaches of the staff in the framework of the collegial decision-making within the Commission.

50. As concerns the ability of the Commission's staff to express their views free from external pressure and the need to preserve their freedom of expression, the Ombudsman has already pointed out that the Commission’s above justification that there was a serious risk to its decision-making process in the present case was general and abstract and certainly not individualised (paragraph 33 above).

51. As regards the second argument, the Ombudsman does not agree that a serious risk to the Commission's ability to have preliminary discussions with stakeholders in preparation of new policies and thus to its decision-making process exists if the content of these consultations were to become public. First, he notes that the Commission admitted that some of the arguments contained therein could have been used by former Vice-President Verheugen in the discussion with the representative of car industries. As pointed out in paragraph 32 above the staff's analysis, reflections and criticism contained in the documents in question were thus intended for the public's attention.

52. Moreover, the Ombudsman recalls that the Commission has already adopted its Proposal for a Regulation. He does not see how some arguments used, according to the Commission, to 'test the field' with an eye to the adoption of a determined policy, namely, Proposal of a Regulation setting emission performance standards, could jeopardise the Commission's ability to hold in the future preliminary discussions/consultations with stakeholders in preparation of other policies.

53. In light of the above, the Ombudsman finds that the Commission wrongly refused full access to parts of the 'briefings' relating to carbon dioxide emissions from cars on the basis of the exception in Article 4(3) second subparagraph of Regulation No 1049/2001. This was an instance of maladministration. Accordingly, he makes a critical remark below.

B. Allegation of failure to provide parts of the briefings not relating to carbon dioxide emissions

Arguments presented to the Ombudsman

54. The complainant alleged that the Commission did not justify on the basis of Regulation 1049/2001 its decision to grant partial access only to the contested document by arguing that "since the complainant's request covered specifically the emissions of carbon dioxide by cars, those parts of the briefings, which are not related to this issue, have been expunged". The complainant argued that it was entitled to a "document", and that "the remaining parts of the document should be released" if no exceptions applied validly to any part of the document.

56. The Commission pointed out that the complainant's application specifically concerned documents relating to the Commission's approach to carbon dioxide emissions from automobiles. Since the other parts of the briefings did not fall within the scope of the application, access to them was not refused because the Commission did not assess whether or not they could be disclosed. Therefore, no justification was needed for not including them in the reply.

The Ombudsman's assessment

55. It is not disputed that the complainant's application concerned "copies of documents related to meetings between the Commission and representative of car manufacturers at which the question of the Commission's approach to carbon dioxide emissions from cars was discussed." (emphasis added)

56. The complainant also agreed that the Commission's position not to disclose the parts of the briefings which did not relate to carbon dioxide emissions from cars did not constitute a refusal of access to documents under the terms of Regulation 1049/2001.

57. In light of the above, the Ombudsman finds that the Commission's interpretation of the scope of the complainant's application appears to be reasonable. The Ombudsman recalls that the complainant is free to submit to the Commission, in accordance with the provisions of Regulation 1049/2001, another application requesting access to the parts of the briefings which did not fall under the scope of his initial application.

C. Allegation of failure to provide other documents relating to the Commission's approach to carbon dioxide emissions

Arguments presented to the Ombudsman

58. The complainant alleged that the Commission (a) did not provide copies of documents, including correspondence held by DG ENTR in respect of the meetings between the representative of car manufacturers and the DG officials and/or in respect of the Commission's approach to carbon dioxide emissions from cars, dated before and after 1st January, and (b) did not explain why it could not do so.

59. In its opinion, the Commission explained that it only considered the part of the application relating to the meetings and overlooked the "and/or" formulation. It apologised for having interpreted the complainant's application too narrowly. However, it pointed out that it did not hold other documents in respect of its approach to carbon dioxide emissions from cars.

60. The Commission also stated that there were no other documents, such as agendas or minutes, relating to the meetings with representatives from the car industry which concerned carbon dioxide emissions.

61. The complainant contested the Commission's above view and argued that the Ombudsman should seek to inspect the files to see whether the Commission holds other documents relating to the subject-matter of his application.

The Ombudsman's assessment

62. The Ombudsman notes that, in the course of the inquiry, the Commission apologised for interpreting the complainant's original application too narrowly.

63. Moreover, in the course of the present inquiry, no facts have arisen which could contradict the Commission's statement that it did not hold other documents relating to the subject matter of the complainant's application.

64. Given these circumstances, the Ombudsman does not consider it necessary to pursue this matter further.

D. Conclusions

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

By failing to grant full access to the parts of the 'briefings' relating to carbon dioxide emissions from cars, the Commission committed an instance of maladministration.

No further inquiries are necessary into the second and third allegations presented by the complainant.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 24 September 2010

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[1] OJ 2001 L 145, p. 43. Article 4(3) first subparagraph of Regulation 1049/2001 reads as follows: "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."

[2] See footnote 1.

[3] Proposal for a Regulation of the European Parliament and of the Council setting emission performance standards for new passenger cars as part of the Community's integrated approach to reduce carbon dioxide emissions from light-duty vehicles, COM /2007/0856 final.

[4] Article 4(3) second subparagraph of Regulation 1049/2001 reads as follows: "Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

[5] See footnote 4.

[6] Case C-64/05 Sweden v Commission [2007] ECR I-11389, paragraph 57 and Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 62.

[7] Article 1(a) of Regulation 1049/2001.

[8] Case C-64/05 Sweden v Commission [2007] ECR I-11389, paragraph 66; Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 63.

[9] Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69.

[10] Decision on complaint 1434/2004/PB, paragraph 1.22, available on the Ombudsman's website.

[11] Draft recommendation on complaint 355/2007/TN, paragraph 48, available on the Ombudsman's website.

[12] Case C-5/85 AKZO Chemie v Commission [1986] ECR 2585, paragraph 30.

[13] In this respect, see also Article 9 of the Commission's Decision of 24 February 2010 amending its Rules of Procedure, OJ 2010 L 55, p. 60.