Ms Ursula von der Leyen President European Commission

 

Dear President,

I am writing to seek a solution in this case concerning a request for public access to correspondence exchanged between Commissioner Wojciechowski and the Polish government.

Following the complainant’s initial request in October 2022, the Commission identified 57 documents with 33 annexes as falling within the scope of the request. The Commission granted wide partial access but refused access to two documents in their entirety, namely ‘document 39’ and ‘document 54’. In doing so, the Commission argued that the author of the documents had objected to their disclosure. Concerning ‘document 39’, the Commission noted that it contained a detailed description of the Polish priorities for the Forest Strategy. As the legislative work for the Strategy’s implementation acts is still ongoing [...], in accordance with Art. 4(3), of Regulation (EC) No 1049/2001, Poland refuses to disclose the document in its entirety, because such disclosure would seriously undermine the above-mentioned ongoing decision-making process.”

The complainant asked the Commission to reconsider its position concerning ‘document 39’, by making a confirmatory application. He argued that a Member State could not invoke the need for the protection of its national decision-making process, because the exception set out in Article 4(3) of Regulation 1049/2001 concerns the decision-making processes of the EU institutions only.

In January this year, my Office opened an inquiry given that the Commission had failed to reply to the complainant’s confirmatory application by the extended time limit, which expired on 22 November 2022. We asked the Commission to reply without further delay.

In February 2023, and in the absence of a reply to the complainant’s request, my Office asked the Commission to provide it with (i) a list of the documents identified at confirmatory stage; (ii) a copy of the document at issue in the complainant’s confirmatory application (‘document 39’); (iii) copies of additional documents that have been identified at the confirmatory stage; and (iv) any documentation relating to the third-party consultations that already existed at that stage.

In February 2023, the Commission provided a copy of ‘document 39’. In May and June 2023, the Commission provided the documents related to the third-party consultation at initial and confirmatory stage, as well as the additional documents identified at confirmatory stage. I note with regret that the third-party consultation at confirmatory stage was launched only at the end of March 2023, while the complainant made his confirmatory application in October 2022.

My inquiry team has now inspected these documents. As a preliminary remark, and irrespective of the observations and proposal set out below, we note that ‘document 39’ (Ares(2021)3870032) was inadvertently disclosed by the Commission in reply to the complainant’s initial request and is publicly available via FragdenStaat.[1]

The Commission’s preliminary view, which it shared with the Polish authorities at both initial and confirmatory stage, was that ‘document 39’ could be fully disclosed subject only to possible redactions of personal data. At confirmatory stage, the Commission stated that Member States could not rely on Article 4(3) of Regulation 1049/2001 in the context of ongoing decision-making processes at national level. It invited the Polish authorities to explain how the document’s disclosure would undermine any of the interests protected under Articles 4(1) and 4(2) of Regulation 1049/2001.

In its reply, Poland maintained its previous position and objected to the disclosure of ‘document 39’. It claimed that legislative processes are still ongoing at the EU level and that disclosure may, inter alia, negatively affect negotiations in the Council and the European Parliament and the Commission’s preparation for a proposal on EU forest monitoring and Strategic Plans[2].

In accordance with EU case-law[3], the Commission does not have to carry out an exhaustive assessment of the Member State’s objection to disclosure. However, it must check whether the Member State has based its objection on the exceptions in Regulation 1049/2001 and that the explanations given by that Member State appear, prima facie, to be well founded.

I am not convinced that the objections of the Polish authorities in this case could, prima facie, justify a refusal to disclose the requested document. ‘Document 39’ was sent to the Commission on 11 June 2021, that is, nearly one year before the Commission tabled its proposal for a regulation on nature restoration[4]. The content of ‘document 39’ is not sensitive as such and does not reveal the Member State’s negotiating lines. Thus, it is not clear to me how its disclosure would specifically and actually undermine any (possibly) ongoing decision-making processes at the EU level.

In light of the above, my proposal for a solution at this stage is that the Commission review its initial position on the complainant’s public access request with a view to granting the widest possible access to ‘document 39’.

I would be grateful to receive the Commission’s reply to my proposal within three months of the date of this letter, which is the customary timeline for replies to solution proposals. Given the delay already incurred in this case and that it concerns one document that is already on the Internet, I would however urge the Commission to reply to this proposal as soon as possible.

At this stage, the solution proposal is confidential. My inquiry team has, however, informed the complainant of my intention to seek a solution in this case.[5] Please note that our usual practice is to send a copy of the solution proposal to the complainant for comments, together with a copy of the institution’s reply to it, once we have received that reply. I would therefore ask the Commission to inform us if any information contained in the solution proposal, or in its reply, should not be shared with the complainant.[6]

Yours sincerely,

Emily O'Reilly

European Ombudsman

Strasbourg, 29/06/2023

 

[1] See https://fragdenstaat.de/anfrage/korrespondenz-zwischen-eu-kommissar-janusz-wojciechowski-und-der-polnischen-regierung-sowie-der-pis-partei/737785/anhang/39cabjwares20213870032.pdf

[2] See https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13396-EU-forests-new-EU-Framework-for-Forest-Monitoring-and-Strategic-Plans_en

[3] See Judgment of the General Court of 14 February 2028 in case T-74/16, Pagpyprios organismos ageladotrofon v Commission, para 57; available at https://curia.europa.eu/juris/document/document.jsf?text=&docid=199205&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=17959245

[4] See https://environment.ec.europa.eu/system/files/2022-06/Proposal%20for%20a%20Regulation%20on%20nature%20restoration.pdf

[5] In line with Article 2(10) of the Statute of the European Ombudsman, Regulation 2021/1163 of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties: https://www.ombudsman.europa.eu/en/legal-basis/statute/en.

[6] If you wish to submit documents or information that you consider to be confidential, and which should not be disclosed to the complainant, please mark them ‘Confidential’. Encrypted emails can be sent to our dedicated mailbox. Information and documents of this kind will be deleted from the European Ombudsman’s files shortly after the inquiry has ended.