President European Commission

 

Dear President,

I am writing to seek a solution in this case concerning a request for public access to documents[1] relating to the Recovery and Resilience Plan (RRP) of the Netherlands. The inquiry concerns the Commission’s implicit decision to refuse access in full to 172 documents, as well as the delay of over one year encountered to date.

In refusing access at initial stage, the Commission mainly argued that disclosure could undermine the protection of the public interest as regards the financial, monetary or economic policy of a Member State, commercial interests and the Commission’s ongoing decision-making process.

The Dutch authorities were consulted on the disclosure of the documents originating from them (the majority of the documents at issue) and did not identify a risk to the financial, monetary or economic policy of the Netherlands arising from the disclosure of 72 documents. It is not clear from the initial decision why, for those documents, the Commission’s assessment differed from that of the Dutch authorities.

The Commission did not consult the Dutch authorities on its ‘own’ documents, that is, documents containing its assessments of the Dutch RRP and some minutes of meetings between the Commission and the Dutch authorities. As for the Commission’s assessments of the Dutch RRP, the related documents do not seem to be so sensitive throughout that their (partial) disclosure would undermine the protection of the financial, monetary or economic policy of the Netherlands. Similarly, large parts of the identified minutes of meetings are general in nature. 

As set out in the annex to this letter, I am also not convinced about the Commission’s reliance on the exceptions to protect commercial interests and an ongoing decision-making process.

In light of the above, my proposal for a solution at this stage is that the Commission review its previous position with a view to giving the complainant the widest possible access to the 172 documents at issue.

Regrettably, I had to base my assessment on an incomplete file because the Commission has not yet adopted an explicit confirmatory decision, nor has it shared with my Office the documentation relating to its consultations with the Dutch authorities at confirmatory stage.

I would be grateful to receive the Commission’s reply to my proposal within three months of the date of this letter, that is by 23 February 2024, which is the customary timeline for replies to solution proposals. Given the delay already incurred in this case and the time sensitivity of the matter, I would however urge the Commission to reply to this proposal as soon as possible. I would appreciate receiving a copy of the third party consultations at the same time, since I understand these consultations should have been concluded by now.

At this stage, the solution proposal is confidential. My inquiry team has, however, informed the complainant of our intention to seek a solution in this case.[2] 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. We will also publish these documents. I would therefore ask the Commission to inform us if any information contained in the solution proposal, or in its reply, should not be made public.[3]

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 24/11/2023

 

Annex - complaint reference 409/2023/OAM

In June 2022, the complainant asked the European Commission for public access to “[a]ll documents held by the Commission on the preparation of a recovery and resilience plan of the Netherlands as part of the European Recovery and Resilience Facility (RRF), from 29 January 2022 until 1 June 2022.”

At initial stage, the Commission granted partial access to 23 documents, provided links to public sources for 10 further documents[4] and refused access to 172 documents in their entirety.[5] The complainant made a confirmatory application in relation to those 172 documents to which no access was granted.

The Ombudsman opened an inquiry in March 2023, given that the Commission had failed to reply to the complainant’s confirmatory application by the extended time limit, which expired in November 2022.

In July 2023, and in the absence of a reply to the complainant’s request, the Ombudsman asked the Commission to provide her Office with (1) the documents it had identified as falling within the scope of the request and to which (full) access was refused and (2) any documentation relating to the consultation of the Dutch authorities on the request.[6] The Commission provided the Ombudsman with copies of the documents and with the consultations of the Dutch authorities at initial stage.[7] Since then, the Commission has informed the Ombudsman on various occasions that it is still working on adopting an explicit reply to the complainant’s confirmatory application.

In refusing access to 172 documents, the Commission invoked various exceptions to public access, arguing that disclosure could undermine:

• (for all 172 documents) the protection of the public interest as regards the financial, monetary or economic policy of the Community or a Member State;[8]
• (for one document) public security,[9] the defence and military matters;[10]
• (for 21 documents) commercial interests of a natural or legal person;[11]
• (for 151 documents) the Commission’s ongoing decision-making process.[12]

The 172 documents fall largely into five categories: (i) emails exchanged between the Commission and the Dutch authorities, including (ii) draft chapters of the Dutch RRP and (iii) the Commission’s assessment thereof; (iv) minutes of meetings between the Commission and the Dutch authorities and (v) other documents, for example from the Dutch authorities to substantiate the proposed RRP measures.

In relation to the protection of the public interest as regards the financial, monetary or economic policy of the Netherlands

The assessment of the documents transmitted by the Commission showed that the Dutch authorities were consulted on the disclosure of the documents originating from the Netherlands (the majority of the documents at issue). These are mainly emails exchanged between the Commission and the Dutch authorities, including draft chapters of the Dutch RRP and minutes of meetings. In reply, for 72 documents, the consulted Dutch authorities did not identify any risk to the financial, monetary or economic policy of the Netherlands arising from disclosure.[13] It is not clear from the Commission’s initial decision why, for those documents, its assessment differed from that of the Dutch authorities. The Ombudsman already took the view in a previous inquiry that, while the Commission may, as a matter of law, take a different view, it is very difficult to understand, as a matter of fact, what insight the Commission has into the financial, monetary or economic policy of the Member State that should prevail over its own views on what risks the disclosure of the documents would entail.[14]

As for the remaining documents on which the Dutch authorities were not consulted, that is the Commission’s ‘own’ documents, these are mainly documents relating to its assessments of the Dutch RRP and minutes of meetings between the Commission and the Dutch authorities.[15] While the Ombudsman acknowledges that the Commission has a wide margin of discretion when deciding on the application of the exception for the protection of the public interest as regards financial, monetary or economic policy, it must still demonstrate that there is an actual and specific risk of those policies being undermined. Based on the inspection of the documents at issue, it is not evident that the exception could be applied to all and/or the entirety of the documents containing the Commission’s assessments and guidance. The documents containing the assessments do not seem to be so sensitive throughout that their (partial) disclosure would undermine the protection of the financial, monetary or economic policy of the Netherlands.[16] In addition, large parts of the meeting minutes seem to be rather general in nature.[17] 

In relation to the protection of commercial interests

This exception was invoked mainly in relation to documents originating from the Dutch authorities that substantiated the proposed RRP measures. The inspection showed that the Dutch authorities did not see any risk to commercial interests by disclosing four of the relevant documents. It is not clear why the Commission deviated from the position of the Dutch authorities and relied on the commercial interests exception when refusing access to these four documents.

In relation to the protection of an ongoing decision-making process

On 8 September 2022, the Commission made public its assessment of the Dutch RRP. On 27 September 2022, the Council approved the respective plan.[18] While the decision on the Dutch RRP was still open at the time of the Commission’s initial reply to the complainant’s request, this is no longer the case now.

The Commission has argued in the past that the decision-making process does not end with the Council’s approval of the RRP. Rather, it suggested that the decision-making process on the national plans can extend to 31 December 2026, which is the deadline for the adoption of payment decisions by the Commission, subject to the fulfilment of the relevant milestones and targets by 31 August 2026. In a previous inquiry,[19] the Ombudsman took the view that it is not clear how documents pertaining to the RRP negotiations, which are now closed, ‘transform’ into documents in an ongoing decision-making process on complying with the RRP. The Commission would need to show how precisely the disclosure of the documents, which are related to the setting of milestones, could seriously undermine the Commission’s evaluation of the milestones.

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R1049.

[2] 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.

[3] If the Commission wishes to submit documents or information that it considers to be confidential, and which should not be disclosed to the complainant, these should be marked ‘Confidential’. Encrypted emails can be sent to our dedicated mailbox.

[4] Annex 1 of the Commission’s initial reply Ares(2022)6161068.

[5] Annex 2 of the Commission’s initial reply Ares(2022)6161068.

[6] Conducted in line with Articles 4(4) and 4(5) Regulation 1049/2001.

[7] The Commission said the consultations with the Dutch authorities at confirmatory stage were ongoing and could not be provided at that time.

[8] Article 4(1)(a) fourth indent Regulation 1049/2001.

[9] Article 4(1)(a) first indent Regulation 1049/2001.

[10] Article 4(1)(a) second indent Regulation 1049/2001.

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

[12] Article 4(3) first subparagraph Regulation 1049/2001.

[13] The circumstances of this case are thus different from those in the context of the Judgment of the General Court of 15 February 2023, Asesores Comunitarious v Commission, T-77/22; available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=270470&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=826561.

^[14] See case 925/2022/LDS The European Commission's refusal to give public access to documents concerning the Swedish and the Danish national plans under the Recovery and Resilience Facility: https://www.ombudsman.europa.eu/en/case/en/61681.

[15] For most minutes of meetings, the Dutch authorities were consulted on their disclosure.

[16] By way of example, document 1 describes in general the possibility to use the Technical Support Instrument and similar information is available online, document 12 contains a general assessment and guidance about the narrative of the RRP at that point in time, documents 43 and 44 contain general assessment and guidance about the audit and control chapter, documents 49 and 50 contain general examples of milestones and targets for the housing component, document 60 contains general information about how milestones and targets should look like.

[17] By way of example, document 57 are minutes recording a general assessment and guidance communicated to the Dutch authorities about the digital pillar in the draft RRP, document 67 are minutes recording a general assessment and guidance communicated to the Dutch authorities about the audit and control chapter.

[18] https://commission.europa.eu/business-economy-euro/economic-recovery/recovery-and-resilience-facility/country-pages/netherlands-recovery-and-resilience-plan_en#documents.

[19] See case 1129/2022/SF The European Commission's refusal to give public access to documents concerning the French national plan under the Recovery and Resilience Facility: https://www.ombudsman.europa.eu/en/case/en/61897.