President European Commission

 

Dear President,

I am writing to seek a solution in this case concerning two requests for public access to the agenda for a meeting betweenr, the former Commissioner for Digital Economy and Society, and Wirecard AG (Ares (2015)436265).

Following the complainant’s initial requests in March 2023, the Commission identified six documents as falling within the scope of the complainant’s request. It granted partial access to five documents, arguing that full disclosure was prevented by the need to protect personal data[1] and commercial interests[2]. The Commission refused access to one document, the agenda, in its entirety. In its initial reply, the Commission stated that the agenda originates from a third party who had been consulted. It stated further, that (partial) disclosure was prevented by the need to protect legal advice[3] and personal data.

The complainant asked the Commission to reconsider its position concerning the agenda, by making a confirmatory application. He contended that the Commission did provide only hypothetical and no concrete reasons for its refusal to disclose the agenda. The complainant further argued that there was an overriding public interest in disclosure, as the ‘Wirecard case’ is still subject of judicial and political inquiries. He considered that a categorical refusal to disclose could hamper the investigation and damage the EU institutions’ reputation.

In June 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 June 2023. We asked the Commission to reply without further delay but not later than 20 July 2023. My Office also considered it necessary to inspect the document at issue in the complainant’s confirmatory application, along with the related third party consultations.

The Commission provided the agenda and third party consultations that it had conducted in the context of previous similar public access requests[4].  The Commission informed my Office that it had not consulted the third party at the initial stage of this public access request. It further stated that while the assessment of the confirmatory application is ongoing, there is no third party consultation ongoing at confirmatory stage. However, the Commission might consider, as part of its confirmatory assessment, consulting the third party if the conditions under Article 4(4) of Regulation 1049/2001 are met.

My inquiry team has now inspected the documents the Commission has provided. The inspection revealed that the document at issue is a one-page agenda that shows the names of the participants, the time and date of the meeting and that suggests three main topics with a total of six points for discussion. I note that, while the document may originate from a law firm, it does not contain any legal advice.

The inspection further revealed that one of the third parties consulted in the context of a previous public access request, objected to the disclosure. However, it is not clear whether this objection also concerns the agenda itself, as neither the Commission’s letter nor the objecting third party’s reply clearly identify the documents that were subject to the consultation. In its objection, the third party argued that disclosure was prevented by the need to protect legal advice[5]. It stated that it was bound by a legal duty of confidentiality[6] and that disclosure would violate §43a(2) BRAO and was punishable under §203 StGB.

In accordance with EU case-law, if the document, to which public access is sought, is not in any way covered by an exception set out in Article 4 of Regulation 1049/2001, the institution is not obliged to consult the third party and must disclose the document directly.[7] Furthermore, the third party’s opinion does not bind the institution concerned. Rather, the institution concerned must independently analyse all the relevant circumstances and take a decision within the scope of its discretion.[8]

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 the agenda.

I would be grateful to receive the Commission’s reply to my proposal within three months, by 7 November 2023, which is the customary timeline for replies to solution proposals. Given the delay already incurred in this case, 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.[9] 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.[10]

Yours sincerely,

Emily O'Reilly

European Ombudsman

Strasbourg, 22/03/2024

 

[1] Article 4(1)(b) of Regulation 1049/2001.

[2] Article 4(2) first indent of Regulation 1049/2001.

[3] Article 4(2) second indent of Regulation 1049/2001.

[4] GestDem 2021/0566 and GestDem 2021/0667.

[5] Article 4(2) second indent of Regulation 1049/2001.

[6] § 2 der Berufsordnung für Rechstanwälte.

[7] Judgment of the General Court of 25 September 2014 in case T-669/11, Spirlea v Commission, para 61; available at https://curia.europa.eu/juris/document/document_print.jsf?mode=lst&pageIndex=0&docid=157982&part=1&doclang=EN&text=&dir=&occ=first&cid=327122

[8] Judgment of the General Court of 26 January 2022 in case T-570/20, Kedrion v European Medicines Agency, para 91; available at https://curia.europa.eu/juris/document/document_print.jsf?docid=252767&text=&dir=&doclang=FR&part=1&occ=first&mode=lst&pageIndex=0&cid=2551372

[9] 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.

[10] 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.