President European Commission

 

 

Dear President,

I am writing to seek a solution in this case which concerns a request for public access to documents related to a project funded under the “European Union Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa” (EUTF for Africa). This project aimed at reinforcing civil register information systems and creating a biometric national identity register in Senegal, and was entrusted by the Commission to an external contractor.

My Office opened the case in July last year, given that the Commission had failed to reply to the complainant’s confirmatory application by the extended time limit, which expired on 19 June 2023. We asked the Commission to reply without further delay. In November 2023, given the persistent delay in replying to the complainant’s confirmatory application, my Office asked the Commission for copies of the documents at issue[1], so that my inquiry team could inspect them.[2]

My inquiry team reviewed the four documents at issue that is, two narrative reports, a third party financial audit report and financial reports from the contractor. 

Our inspection showed that, when issuing the second narrative report, the contractor explicitly agreed to its future publication[3]. In these circumstances, it is clear that, from the perspective of the contractor, the report does not contain commercially sensitive information, and the Commission should have provided public access.

The inspection also showed that the contractor did object to the publication of the first narrative report. However, it is not evident from the explanations provided by the contractor,[4] or from the Commission’s initial reply to the public access request, why this first report would be commercially sensitive and not the second one. In its initial reply, the Commission did not distinguish between these two reports, and considered that both contained information that, if disclosed, could “undermine the protection of the relevant implementing partner’s expertise and strategy and thus its commercial strength”. Having reviewed the content of both reports, it is not clear how the disclosure of the information described by the Commission as commercially sensitive[5] would put the contractor at a disadvantage when applying for future projects.

This conclusion is further confirmed by the fact that substantial information related to the project and included in the narrative reports appears to have already been made public in an “Action Document” published by the Commission on 2 March 2023[6]. This concerns in particular the descriptions of the contract, the activities planned, an indicative budget, and anticipated risks. Therefore, partial access - if not full access - to documents 5.2 and 5.5 should be possible without putting at risk the legitimate commercial interests of the contractor.

The financial and audit reports[7] include detailed information on costs incurred by the contractor. That said, the aggregated financial information contained in these reports, such as the main budget lines for actual expenditure, is unlikely to reveal the cost structure of the contractor. I also note that the publicly available “Action Document” mentioned above includes an indicative budget structured by results and activities planned[8]. Parts of the information included in the financial reports follows this structure. These parts thus appear less sensitive.

Furthermore, in accordance with the EU Financial Regulation, the principle of transparency in spending of EU funds holds that “citizens should know where, and for what purpose, funds are spent by the Union. Such information fosters democratic debate, contributes to the participation of citizens in the Union’s decision-making process, reinforces institutional control and scrutiny over Union expenditure, and contributes to boosting its credibility.”[9] The public should be adequately informed about the implementation of projects financed through EU funds.

Finally, when assessing whether there is an overriding public interest in disclosure, the Commission should take into account the public interest in monitoring the activities financed through the EUTF for Africa considering its potential human rights implications[10].

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

Regrettably, I have had to base this assessment on an incomplete file. The Commission indicated in its reply to my inspection request of 16 November 2023, in which I also asked for "any further Narrative Reports that may have been identified at confirmatory stage", that it is currently investigating whether additional documents fall within the scope of the complainant's request but that it would be premature to share any such documents with my Office, given that the confirmatory assessment is still ongoing. I also note that the Commission did not confirm whether third party consultation were conducted or are still being conducted at confirmatory stage. My solution proposal thus only concerns the documents which the Commission identified at initial stage. I would be grateful if the Commission could provide my Office with any new documents as soon as these are identified as well as any documentations in relation to the potential consultation of third parties.

I would be grateful to receive your reply to my proposal by 20 May 2024. If, however, the Commission’s confirmatory decision adequately addresses the above points, a separate substantive reply may not be needed.

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[11]. 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[12].

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 16/02/2024

 

[1] Documents 5.2, 5.3, 5.4 and 5.5.

[2] As per our usual practice, while the complainant was informed of our inspection request, the documents subject to the

public access request and any other information or documents that your institution considers to be confidential, such as

the list of identified documents, will not be disclosed to the complainant or any other person without the prior agreement

of the Commission.

[3] Document 5.5 covering the second year of the contract, see page 50/50.

[4] Document 5.2 covering the first year of the contract, see page 27/27.

[5] Initial reply “the implementation of the elements in Organisation and Methodology and the changes in strategy and methodology in the course of the project, and [...] how the implementing agency has addressed emerging issues and challenges” ; “information on the internal and logistic organisation of tasks and on the performed activities; they contain references to the methodology used to prepare and to carry out the activities as well as reporting methods; approach and methodology used on the analysis of data collected or on the elaboration of studies or guidelines; mentions the supplies and services sub-contracted with third parties; details on the work relations and practices of exchange of information and documents between the project staff and local authorities.”

[6] The Action Document was published on the Emergency Trust Fund for Africa website, available at https://trust-fund-for-africa.europa.eu/our-programmes/programme-dappui-au-renforcement-du-systeme-dinformation-de-letat-civil-et-la-creation-dun-fichier_en.

[7] Documents 5.3 and 5.4.

[8] See https://trust-fund-for-africa.europa.eu/system/files/2023-03/t05-eutf-sah-sn-07_etat_civil.pdf#page=17

[9] Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, Recital 11 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1046).

[10] See European Ombudsman case 1904/2021/MHZ.

[11] 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.

[12] 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.