Made in accordance with Article 2(10) of the Statute of the European Ombudsman[1]

Background to the complaint

1. To reduce greenhouse gas emissions, the EU established a scheme[2] for greenhouse gas emission allowance trading (the ‘European Union Emissions Trading Scheme’ - ‘EU ETS’). The EU ETS aims to support cost-effective emission reductions and to promote low-carbon investments.

2. It is the European Commission’s task to adopt EU-wide and fully harmonised implementing measures to allocate ‘free of charge’ emission allowances. To this end, the Commission has to establish, in advance, sectoral benchmarks using as a starting point the average performance of the 10% most efficient installations in a sector or sub-sector. For this purpose, the EU Member States have to notify[3] to the Commission a list of all installations covered by the EU ETS in their territory and the preliminary amount of free allowances to be allocated to these installations for a given period. These notifications are known as ‘National Implementation Measures’ or ‘NIMs’.

3. In November 2021, the complainant, an environmental organisation, made a request for public access to the Commission, asking for

(i)     the (plant or process specific) data obtained under the ETS Directive related to the energy consumption and greenhouse gas emissions of the ceramic industry and on techniques, process, costs, benefits and decarbonisation techniques,

(ii)   a list of ceramics installations whose performance was used as a basis for the EU-ETS free allowance benchmark,

(iii) possible exchanges with the Member States in the context of the process of setting the benchmark for the ceramics industry, and

(iv) other documents received from stakeholders in this context (including emails).

4. The Commission identified 24 documents, namely 23 notifications of preliminary NIMs that had been submitted by EU Member States and one position paper on the benchmarks update by a private stakeholder. The Commission gave the complainant full access to the position paper but refused access to the remaining 23 documents. In refusing to give access, the Commission relied on the need to protect the commercial interests of the ceramics manufacturers concerned.[4] The Commission added that the information contained in these 23 documents was not limited to the ceramics sector, so that large parts of the documents fall outside the scope of the complainant’s access request.

5. In March 2022, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’). Specifically, the complainant challenged the Commission’s refusal to disclose the 23 notifications at issue. In addition, the complainant raised concerns about the Commission’s failure to identify any email exchanges with Member States.

6. In August 2022, the Commission replied, confirming its refusal to give access to the 23 notifications. The Commission also identified an additional document, namely an excel spread sheet containing a list of the 10 % most efficient installations related to four product benchmarks (facing bricks, pavers, roof tiles and spray dried powder). The Commission refused to give access to this document based on the same exception and explained that there were no further documents falling within the scope of the request. It did not identify any email exchanges with Member States and said that such exchanges concerned technical matters regarding the NIMs that do not meet the registration criteria in its record management policy due to their short-lived nature.   

7. Dissatisfied with the Commission’s confirmatory reply, the complainant turned to the Ombudsman on 8 November 2022.

The inquiry

8. The Ombudsman opened an inquiry into the Commission’s refusal to give public access to the 24 documents at issue and into its alleged failure to identify all documents that fall within the scope of the complainant’s access request.

9. In the course of the inquiry, the Ombudsman inquiry team inspected the documents as well as additional documents concerning the handling of a previous, similar request for public access that had resulted in a court ruling (”Rogesa”[5]). The Commission considered that this ruling could be applied by analogy to the case at hand. The Commission also provided the Ombudsman with additional explanations as regards the handling of this previous access request and as regards its exchanges with Member State authorities on the notifications at issue.

Arguments presented

10. The complainant argued that the Commission had failed to identify a specific harm that disclosure would bring about, contesting that disclosure would undermine the commercial interests of the manufacturers concerned. In the complainant’s view, the information at issue is not commercially sensitive in nature, because all installations would be equally concerned and because some information is already older than five years and should thus be regarded as “historical”. The complainant also stated that − contrary to the applicant in the Rogesa case − it is not a competitor of the manufacturers concerned and, moreover, is ready to sign an agreement committing not to disclose the documents further.

11. The complainant considered that the information contained in the documents qualifies as ‘environmental information’ or even ‘information related to emissions into the environment’ within the meaning of the Aarhus Regulation[6], and thus, that there is an overriding public interest in disclosure. Specifically, as regards the EU ETS, the complainant stated that disclosure would enable the public to verify whether the greenhouse gas emissions reported by the installations concerned are correct. This, it said, is important as incorrect data could lead to an increase rather than a reduction of such emissions. It would also enable the public to verify the basis for the relevant benchmarks and how the “free of charge” allowances are allocated. This in turn, would provide insight into the possible carbon leakage of an installation. The complainant added that, in light of the already significant impact of climate change, it would be crucial for the public to determine how much “free of charge” CO₂ specific installations emit, particularly since the EU ETS allows manufacturers to evade the “polluter pays principle”, to the extent that they are allocated free CO₂-allowances.

12. In addition, the information in the documents would enable the complainant to participate meaningfully in the ongoing review of the ‘EU Best Available Techniques (BAT) Reference Document for Ceramics Manufacturing’ (CER BREF)[7], a process setting the environmental performance standard that installations in the EU have to comply with, such as emission limits, irrespective of the carbon price level.

13. The Commission argued that documents disclosed under Regulation 1049/2001 are disclosed to the public at large (‘erga omnes’) and that the complainant could therefore not validly commit to not disseminating further any documents received under a public access request.

14. As regards the exception invoked, the Commission said that the documents contain confidential business information such as data on production activity, energy consumption, heat balances, attribution of emissions at sub-installation level, and type and quantity of products produced over the five years preceding the submission of the notifications by the Member States. It took the view that disclosure of this information would reveal the installations’ situation in the current market context.

15. The Commission also referred to the General Court’s ruling in Rogesa,[8] which, it said, concerned similar documents, that is graphs showing the quantity of CO₂-emissions per tonne of product produced by companies operating in a sector other than the ceramics industry. In its view, this ruling could be applied by analogy. In that case, the court had found that knowing specific volumes of CO₂-emissions per tonne enables third parties to draw conclusions about the competitive situation and the carbon efficiency of a company. It had thus concluded that this information was commercially sensitive.

16. The Commission contended that, in this case, disclosure would also enable third parties (at least those with expert knowledge) to draw detailed conclusions on the production process of the installations concerned, their abatement potentials, their competitive position and their cost structure. 

17. Concerning the newly identified document, the Commission said that disclosure would reveal the identity and the carbon efficiency of the installations concerned. It would also allow third parties to determine the amount of products produced per year and the number of free allowances an installation received. The Commission added that the document contained information on installations that had been excluded and the reasons for this.

18. The Commission concluded that disclosure would affect the competitive position of the installations concerned, because the information at issue reflects their current market situation and would allow conclusions to be drawn on the respective manufacturers’ organisation and strategies.

19. As regards the existence of a possible overriding public interest, the Commission acknowledged that the information contained in the documents qualifies as ‘environmental information’ within the meaning of the Aarhus Regulation. However, it said that the information concerning actual emissions from installations is already in the public domain.[9] The Commission thus already makes a substantial amount of information proactively available to the public.

20. Concerning the remaining information in the notifications, such as data on energy use and quantity of energy calculated by product, the Commission held that this information does “not qualify as such as ‘information relating to emissions into the environment” under the Aarhus Regulation. This concept comprises only information that allows the public to know “what is actually released into the environment or what, it may be foreseen, will be released into the environment (...)”.[10] The Commission made reference to the Rogesa case, in which, it said, the court confirmed this in relation to similar documents. On this basis, where the documents at issue do not contain ‘information relating to emissions into the environment’, the Commission stated that no presumption of an overriding public interest in disclosure arises.

21. The Commission concluded that, while there is a public interest regarding the topic of allocations of free allowances, this interest does not outweigh the commercial interests at stake. Concerning the interest pursued by the complainant − to be able to participate fully in the review process of the EU Best Available Techniques (BAT) Reference Document for Ceramics Manufacturing (BREF CER)[11] − the Commission argued that this was private (rather than public) in nature. As a result, the complainant had not demonstrated a pressing need for disclosure of the documents at issue.

22. As regards the exchanges with Member State authorities, the Commission contended that it was not obliged to preserve each and every document, but only documents that contain important information that is not short-lived or that requires follow-up. Any email exchanges with Member States in this case concerned “technical matters aiming at correcting and clarifying the data submitted with the NIMs. Such exchanges are not documents that fulfil the registration criteria, due to their short-lived nature.” In its additional explanations to the Ombudsman, the Commission referred to ‘consistency checks’ that it submits to the Member States when it verifies their submissions under the ETS Directive. The Commission excluded these checks from the scope of the request because they “concern a large amount of installations as well as data included in the NIMs lists submissions” that do not concern the ceramic sector specifically.

The Ombudsman's assessment

On the scope of the request for access and the erga omnes effect of Regulation 1049/2001

23. The complainant’s request for public access concerns only documents containing data related to the ceramics industry. The Commission has stated that large parts of the identified NIMs notifications fall outside the scope of the request. Having reviewed the documents, the Ombudsman can confirm that the information contained therein is indeed not limited to the ceramics sector. The Commission’s statement that large parts of the notifications are not covered by the complainant’s access request is therefore accurate.

24. In addition, the Commission correctly explained that a decision to disclose documents under Regulation 1049/2001 renders them accessible to the public and that, therefore, applicants cannot validly commit to not further disseminating documents they receive following a public access request.

On the protection of commercial interests of legal persons

25. The Commission may legitimately refuse public access to documents where such disclosure would undermine the protection of the commercial interests of a natural or legal person, including intellectual property. However, the Commission must establish an actual and specific harm to the interest to be protected which much be reasonably foreseeable and not purely hypothetical.

26.  In refusing access, the Commission argued that disclosure would undermine the legitimate commercial interests of the companies operating the installations concerned.[12] Specifically, the information would allow conclusions to be drawn, for example, on the production process of the installations concerned, their cost structure and their competitive position. The Commission added that the information reflects the companies’ situation in the current market context.

27. The review of the documents showed that they indeed contain very detailed and non-anonymised information, for example, concerning the energy consumption and the CO₂-emissions per tonne of product of the installations and sub-installations concerned. It also showed that the documents contain similar types of information as the documents at issue in Rogesa[13], although those documents were much less detailed (but also anonymised). Despite this, the court confirmed that the information contained therein is commercially sensitive and thus that it was reasonable for the Commission to apply the commercial interests exception at the time.

28. In light of this, the Ombudsman considers that the Commission was justified in relying on the exception concerning the protection of commercial interests in this case. The Commission has accurately explained the nature of the information contained in the documents and has demonstrated the specific and actual harm to the commercial interests of the companies operating the installations concerned if these documents were to be disclosed. The Ombudsman considers that the Commission was justified in relying on the judgment of the court in Rogesa, based on the nature of the documents concerned and of the assessment of harm carried out by the court.

29. As regards the claim of the complainant that the information is ‘historic’ in nature, the court has held that in instances where the information is more than five years old, there is a rebuttable presumption that it is no longer confidential.[14] The Commission has provided a reasonable explanation in its confirmatory reply as to why the information dating from 2014 to 2018 remains confidential, in that it continues to form the basis of the current benchmark for free allocations of emission allowances in the ceramic industry (between 2021 and 2025).

On the application of the Aarhus Regulation and the existence of an overriding public interest

30. Where the Commission has established that granting public access to the documents requested would undermine the protection of commercial interests, it must refuse access unless there is an overriding public interest in disclosure.[15]

31. The Aarhus Regulation aims at ensuring that ‘environmental information’ is progressively made available and disseminated to the public.[16] The purpose of access to this information is to promote public participation in the decision-making process, thereby increasing the accountability of decision-making and contributing to public awareness and support for the decisions taken. A public interest to access ‘environmental information’ is thus deemed to exist and the Commission should take this into account when assessing requests for public access.[17]

32. This public interest in accessing ‘environmental information’ does not automatically override the interest to be protected by non-disclosure of the documents requested, but must be assessed based on an individual examination of the documents and the context.[18] This is different where a specific kind of ‘environmental information’ is concerned, that is information which ‘relates to emissions into the environment’. For this specific kind of environmental information, an overriding public interest is presumed to exist under the Aarhus Regulation when it comes to the commercial interests exception.[19]

33. The complainant argues that the documents requested contain information ‘related to emissions into the environment’ and that, therefore, there is an overriding public interest in their disclosure. The Commission accepts that the information contained in the documents is ‘environmental information’, but it is unclear whether it considers that this information relates to ‘emissions into the environment’.

34. The Ombudsman notes that the documents at issue contain, in parts, the total value of CO₂-emissions of each installation concerned for the years 2014 to 2018. It is hard to see how this data does not constitute information ‘related to emissions into the environment’ under the Aarhus Regulation. This information would allow the public to know “what is actually released into the environment or what, it may be foreseen, will be released into the environment (...)”.^[20] The Ombudsman cannot agree with the Commission’s statement that, as the documents are similar to those in the Rogesa case, they “do not contain information on the total amount of CO₂ emitted by a given installation”. Indeed, the Commission recognises in its confirmatory decision that the requested documents “[contain] the total amount of CO₂ emitted by a given installation”.

35. While the Ombudsman accepts that data on the total value of CO₂-emissions has already been proactively published (both for the years in question as well as for the years 2019 to 2022),[21] she notes, as the Commission itself stated in its confirmatory decision and in its additional explanations, “[that] data is wider than the data found publicly in the EUTL (European Union Transaction Log)” and is “much more detailed” than in the Rogesa case. Also in the Rogesa case, the Commission acknowledged that the publicly available information does not fully correspond to the more precise information that the Commission holds. For instance, the publicly available information is often limited to a global number for companies that manage several installations.[22] 

36. In view of the above, the Ombudsman proposes that the Commission reconsider its assessment of the information contained in the documents at issue, to the extent that they “contain[...] the total amount of CO2 emitted by a given installation”. If the Commission agrees that information ‘related to emissions into the environment’ is concerned, it should provide access to the relevant parts of the documents, in line with Article 6(1) of the Aarhus Regulation. In the alternative, the Commission should explain, in more detail, why this information does not ‘relate to emissions into the environment’.

37. The Ombudsman further notes that the documents at issue also contain information on the quantity of CO₂ that is emitted during the production of one tonne of product and other information, such as “data on production activity, energy consumption, heat balances, attribution of emissions at sub-installation level, and type and quantity of products produced over the five years preceding the submission”. As the court ruled in the Rogesa case, this information can be used to draw conclusions about the carbon efficiency of an installation and its production costs and, as such, can be considered to be confidential. The Ombudsman agrees with the Commission that this information does not allow the public to inform itself about the actual or foreseeable emissions of the installations concerned. Therefore, this information does not constitute information ‘related to emissions into the environment’ under the Aarhus Regulation.[23]

38. As a result, and in contrast with the total value of CO₂-emissions of each installation, there is thus no presumed overriding interest in disclosure of this information.

39. The complainant sought to demonstrate a public interest in the disclosure of this information. It argued that disclosure would be needed “to ensure and corroborate the good functioning of the ETS system, as the basis for free emission rights, and to better understand which installations in which countries in the [EU] contribute the most to the existing CO₂-levels.” Disclosure would also “improve the monitoring and oversight of the financial trading of allowances, especially when it comes to free allocations, and would help to ensure that the ETS is effectively pushing the industry towards more ecological materials and processes that will allow the EU to reach its decarbonisation targets”. Disclosure would also ensure “the good functioning of the so called ‘Sevilla process’ that allows for the exchange of information between [Member States experts], industry and environmental organisations resulting in BAT Reference Documents (BREFs) and BAT conclusions, which are used as the reference for setting permit conditions.”

40. The Ombudsman is not convinced that the information contained in the documents at issue continues to be so sensitive that the interest in its protection would outweigh the public interests put forward by the complainant. While it is true that a significant amount of information related to the ETS[24] is already publicly available, the Commission has not convincingly explained why there is no overriding public interest in disclosure. The only reasoning provided by the Commission is that the complainant, in seeking access to the documents at issue, pursues a private interest. The Ombudsman does not agree. Article 13 of the Directive on industrial emissions provides that “in order to draw up, review and, where necessary, update BAT reference documents, the Commission shall organise an exchange of information between Member States, the industries concerned, non-governmental organisations promoting environmental protection and the Commission”.[25] The complainant says that, in the ongoing review of the ‘EU Best Available Techniques (BAT) Reference Document for Ceramics Manufacturing’ (CER BREF), it represents the non-governmental organisations promoting environmental protection. This cannot be considered a private interest.

41. The Commission also claims that less openness is required because the documents relate to an administrative procedure. While it is true that legislative processes demand a higher level of openness, the Aarhus Regulation aims to ensure that ‘environmental information’ is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination. A public interest to access ‘environmental information’ is thus deemed to exist and the Ombudsman considers that the complainant has put forward sufficiently specific circumstances to justify disclosure of the information concerned.[26] In particular, access could ensure that the ‘Sevilla process’, which is itself a form of public consultation and participation in environmental decision-making, takes place with equal access to information for the different actors involved including those representing civil society.

42. The Ombudsman therefore proposes that the Commission reassess whether there is an overriding public interest in disclosure of the ‘environmental information’ contained in the documents, based on the specific public interest arguments put forward by the complainant, and provide detailed and coherent reasoning for its assessment. In particular, the Commission should consider whether the public interests of enabling the public to “verify the basis of the benchmark and [...] the reported actual GHG emissions per installation” and the proper functioning of the ‘Sevilla process’ override the interest to be protected.

 On the Commission’s exchanges with the Member States

43. The complainant also sought public access to other documents, such as exchanges with Member State authorities. In reply, the Commission claimed that any email exchanges which took place with the Member States concerned technical matters and did not meet its document registration criteria due to their short-lived nature. Therefore, these exchanges were not identified as documents falling within the scope of the complainant’s request.

44. As the Ombudsman has repeatedly emphasised,[27] a ‘document’ under Regulation 1049/2001 concerns “any content whatever its medium [...] within the institution's sphere of responsibility”.[28] Whether documents are subsequently registered in the document management system of the institution concerned is, as a matter of law, not relevant for the purpose of the definition of a ‘document’ under Regulation 1049/2001.

45. The technical character and short-lived nature of the email exchanges with the Member States do thus not exclude them from being ‘documents’ under Regulation 1049/2001. In addition, whilst the ‘consistency checks’ to verify Member States’ submissions under the ETS Directive do not concern the ceramic sector specifically, they do include ceramics installations.

46. In view of the above, the Ombudsman proposes that the Commission reassess whether there are any additional documents falling within the scope of the complainant’s access request, to the extent that they still exist.

The proposal for a solution

Based on the above findings, the Ombudsman proposes that the European Commission should:

1) reconsider its assessment of the information contained in the documents at issue, to the extent that they “contain[...] the total amount of CO2 emitted by a given installation”. If the Commission agrees that information ‘related to emissions into the environment’ is concerned, it should provide access to the relevant parts of the documents, in line with Article 6(1) of the Aarhus Regulation. In the alternative, the Commission should explain, in more detail, why this information does not ‘relate to emissions into the environment’.

2) reassess whether there is an overriding public interest in disclosure of the ‘environmental information’ contained in the documents, based on the specific public interest arguments put forward by the complainant, and provide detailed and coherent reasoning for its assessment.

3) reassess whether there are any additional documents falling within the scope of the complainant’s access request, to the extent that they still exist.

The Commission is invited to inform the Ombudsman by 7 August 2023 of any action it has taken in relation to the above solution proposal.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 05/05/2023