Background to the complaint

1. In March, May and July 2021 respectively, the complainant, a lawyer and researcher, made three requests[1] for public access to documents to the European Commission, asking for access to documents concerning all EU Pilot procedures[2] and five specific infringement procedures[3] related to procurement in the defence sector.

2. With regard to the request submitted in May 2021, the Commission contacted the complainant with a view to finding a fair solution as the complainant’s request concerned a very large number of documents. On 14 June 2021, the complainant agreed to limit the scope of the request to documents concerning closed EU Pilot procedures.

3. In its initial replies, the Commission identified 145 documents in total for all three requests. The Commission granted full access to 26 documents, wide access to parts of 98 documents and refused access to 21 documents. In doing so, the Commission first consulted third parties, including most of the Member States from which some of the documents originated.[4] It refused (full) access relying on several exceptions under Article 4 of the EU legislation on public access to documents (Regulation 1049/2001), namely the need to protect the public interest as regards public security, defence and military matters, the financial, monetary or economic policy of the Member States concerned and international relations,[5] as well as the need to protect personal data[6] and commercial interests.[7] The Commission also argued that parts of some documents fell outside the scope of the complainant’s requests.

4. The complainant asked the Commission to review its positions in May, July and October 2021 respectively (by making ‘confirmatory applications’).

5. With regard to all three requests, the Commission extended the time limit for its reply and then sent holding replies to the complainant, saying that it was unable to reply within the extended time limit.

6. In the absence of final decisions on all three requests, the complainant turned to the Ombudsman in February 2022.

7. Following the Ombudsman’s intervention,[8] the Commission adopted its final decisions in February, March and July 2022 respectively. The Commission identified eight additional documents. It granted wider access to 15 documents, full access to six documents and confirmed its decision to refuse access, in full or in part, to the remaining documents, invoking the same exceptions as in its initial replies apart from the need to protect international relations.

8. Dissatisfied with the Commission’s decisions, the complainant turned again to the Ombudsman, asking her to continue the inquiry into the substance of the Commission's responses. 

The inquiry

9. The Ombudsman decided to inquire into the Commission’s decision to refuse (full) access to the documents at issue in the complainant’s three access requests.

10. In the course of the inquiry, the Ombudsman received the reply of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's reply. The Ombudsman inquiry team also inspected the documents at issue as well as the documentation relating to the consultation of the third parties concerned.

Arguments presented

By the Commission (in its final decisions)

11. In its confirmatory decisions, the Commission argued that it had to redact some of the documents because they contain information that falls outside the scope of the complainant’s requests. The redacted parts contain internal Commission correspondence of a purely technical nature or other information unrelated to the complainant’s applications. 

12. The Commission also argued that the documents that led to the preparation of the letters of formal notice[9] are not part of the infringement procedure, which starts only when a letter of formal notice is sent. The Commission excluded these documents from the scope of one of the requests because the complainant expressly referred to the infringement stage of the procedure in his initial application.

13. The Commission consulted third parties and considered their positions, opposing partial or full disclosure of the documents, in its assessment.[10]

14. The Commission contended that some of the documents contain specific information on defence industrial developments and acquisition of armaments by the Member States concerned. Disclosure of that information would infringe the protection of the public interest in the field of public security, defence, and military matters as the disclosure of such highly sensitive information could be detrimental for the Member States’ interests in this area.

15. The Commission stated that disclosing the documents in question, despite the express opposition of the Member States concerned, would negatively affect the EU’s relations with those Member States. The Commission also noted that Member States have the better understanding of their security environment and threat situation.

16. The Commission also argued that it could not provide more detailed reasons for its refusal without disclosing the content of the documents thereby depriving the exception of its very purpose.[11]

17. The Commission further argued that disclosure of parts of the documents would undermine the protection of the financial, monetary or economic policy of a Member State (the Netherlands). This was because the documents contain information on national corrective measures linked to possible market distortions. Disclosure would therefore enable competing companies to disrupt the policies of the government.

18. The Commission also stated that the documents contain sensitive financial and commercial information as well as other sensitive commercial details that were exchanged between contractors and national authorities. Thus, the Commission took the view that disclosure of parts of the documents would undermine the commercial interests of the economic operators concerned. In addition, the Commission contended that the defence market is a specific market, with few buyers and few customers, and it is important for the companies to have a good reputation. Therefore, there is still a risk even if the sensitive information contained in the documents relate to commercial transactions that may be older than five years. 

19. The Commission further considered that full disclosure of the documents would undermine the privacy and integrity of individuals, as the documents contain some personal data, such as the names of non-managerial Commission staff and of staff members and representatives of third parties.

20. The Commission considered that there was no overriding public interest that would justify disclosure of the documents, as the scientific interest in the complainant’s research project is a private interest.[12]

By the complainant

21. The complainant considers that the Commission was wrong in declaring (parts of) several documents outside the scope of his requests. In particular, he does not agree with the Commission’s position that, with regard to one of his requests, the documents related to the preparation of the letters of formal notice fall outside the scope. Furthermore, he considers that the Commission did not provide any reasons for its redactions in one document, which were marked outside the scope.

22. The complainant further argued that the Commission limited itself to referring to the assessments of the Member States it had consulted, rather than conducting its own assessment.[13] He considers that there are therefore significant differences in the level of access granted to documents on the same subject matter originating from different Member States.

23. The complainant also said that the Commission did not provide sufficient reasons to rely on the four exceptions to public access under Article 4 of Regulation 1049/2001 and that it did not consider whether protection could also be achieved through less restrictive means.

24. Based on these reasons, the complainant considered that the Commission made a manifest error of assessment in all three decisions.

25. The complainant also stated that he is dissatisfied with the time taken by the Commission in adopting the confirmatory decisions.

By the Commission (in its reply to the Ombudsman)

26. In its reply to the Ombudsman, the Commission stated that the handling of these cases at the confirmatory stage had been delayed due to the complexity of the requests and the large number of documents at issue. The Commission also said that the delay was due to the identification of new documents at the confirmatory stage, the necessary consultations of third parties and the high workload generally. Therefore, the Commission considered that the extension of the time limit to reply to the applicant’s confirmatory applications was justified and proportionate.

The Ombudsman's assessment

Documents originating from Member States

27. While the Commission is not obliged to carry out an exhaustive assessment of Member States’ positions opposing the disclosure of documents originating from them, it needs to examine whether the explanations given appear to be well founded. It is the responsibility of the Commission to decide on requests for public access to documents that it holds.[14]

28. Based on the review of the documents in question and of the documentation relating to the consultation of the Member States, the Ombudsman can confirm that the Commission’s explanation of the content of the documents and of the Member States’ positions in its confirmatory decisions was accurate.

29. The Ombudsman also notes that the Commission carried out an individual assessment of the documents at issue, based on which it decided to agree with the Member States’ positions that access had to be refused.

Documents outside the scope of the complainant’s requests

30. Having reviewed the parts of the documents that the Commission considered to fall outside the scope of the complainant’s requests, the Ombudsman confirms that those parts contain either purely technical information, such as correspondence on the registration and transfer of cases in a database and instructions on the use of the database, or information unrelated to the requested infringement or EU pilot cases.

31. The Ombudsman further considers that the Commission’s arguments regarding the documents related to the preparation of the letters of formal notice, as described above in paragraph 12, are reasonable. An infringement procedure refers to “the pre-litigation phase of the procedures for non-compliance lodged by the Commission on the basis of Article 258 TFEU or Article 106a of Euratom Treaty”[15]. This definition covers the formal dialogue between the Commission and Member States, which is initiated by a letter of formal notice and which can be followed by a reasoned opinion. These are the only steps that may lead to proceedings before the Court of Justice of the EU. The Ombudsman notes that the complainant’s request explicitly referred to infringement procedures. Based on this, the Commission identified the documents relating to the formal dialogue with the national authorities. The Commission was therefore not wrong in excluding these documents from the scope of one of the complainant’s requests.

32. Having said that, there seems to have been a clerical error concerning the redactions in one of the documents[16]. While the Commission stated in its confirmatory decision that it had only redacted personal data in the document at issue, the inspection revealed that it had also redacted other information and marked it as falling outside the scope of the complainant’s request. As the complainant noted, the confirmatory decision does not provide any arguments as to why this information was considered outside the scope. The Ombudsman suggests that the Commission address this clerical error.

Protection of the public interest as regards public security, defence and military matters and as regards the financial, monetary or economic policy of a Member State

33. The EU institutions enjoy a wide margin of discretion when determining whether disclosing a document would undermine any of the public interests protected under Article 4(1)(a) of Regulation 1049/2001, such as the protection of public security, of defence and military matters and of the financial, monetary or economic policy of a Member State.[17]

34. As such, the Ombudsman’s inquiry sought to determine if there was a manifest error in the Commission’s assessment of the applicability of these exceptions.

35. Having reviewed the documents, the Ombudsman can confirm that the documents at issue contain specific information on defence industrial developments and acquisition of armaments by all Member States concerned, as well as information on corrective measures foreseen by the Dutch government linked to possible market distortions.

36. Based on this, the Ombudsman finds that the Commission was not manifestly wrong to consider that disclosing the information at issue could undermine public security, defence and military matters and the financial, monetary or economic policy of the Netherlands.

37. Given the sensitive nature of the information contained in the documents, the Ombudsman also takes the view that the Commission provided the complainant with sufficient reasons for its decision to refuse access.

Protection of privacy and the integrity of the individual

38. The Ombudsman notes that the complainant did not contest the redactions based on the need to protect the privacy and the integrity of the individual. Therefore, there is no need for the Ombudsman to assess whether the redactions based on this exception were justified.

Protection of commercial interests of a natural or legal person

39. The Ombudsman notes that the Commission redacted only limited information that it considered to constitute sensitive commercial information, in accordance with Article 4(2), first indent, of Regulation 1049/2001.

40. EU case law establishes that there is no presumption of commercial confidentiality for information that is more than five years old.[18] An individual assessment has to be conducted.

41. In this case, the Commission explained why the commercially sensitive information requires protection beyond the five-year period. In particular, it stated that, even if the commercially sensitive information relates to transactions older than five years, the defence market is a specific market with a limited number of customers and very specific products. Therefore, the Commission considers that information from previous procurements could be used by a competitor to win current or future public procurement procedures. The Ombudsman considers these explanations convincing.

42. In view of this, the Ombudsman finds that it was reasonable for the Commission to consider that disclosing the detailed commercial information could harm the commercial interests of the companies concerned.

Overriding public interest in disclosure

43. The public interests protected under Article 4(1)(a) of Regulation 1049/2001 cannot be superseded by another public interest that is deemed more important. However, the exceptions laid down in Article 4(2) of Regulation 1049/2001 must be waived if there is an overriding public interest in disclosure.

44. The Ombudsman notes that the complainant has argued that his academic research project is in the public interest, as it can provide an important contribution to scientific and societal knowledge of the EU's defence procurement law and practice. The Commission’s assessment is that this is a private interest and that the complainant put forward only general considerations or references to transparency or to scientific knowledge about EU’s defence policy. Therefore, the interest cannot prevail over the need to protect commercial interests.

45. The Ombudsman does not agree with the Commission that all academic research projects should be considered purely private interests. Instead, it should always be assessed whether the specific nature of the research is such as to serve a public interest. However, the complainant in this case has not stated, in a sufficiently clear and specific way, how his research serves a public interest, so as to measure that public interest against the interests of commercial confidentiality. Even if the complainant had described why he needed the requested documents for his research, that would not necessarily mean that the complainant needs the very specific and limited commercial information in order to achieve the overriding public interest. The Ombudsman therefore concludes that it was reasonable for the Commission to consider that there was no overriding public interest justifying the disclosure of the documents at issue.

46. The Ombudsman further considers that, in any case, there would be no meaningful access to the documents, if the exception for the protection of commercial interests were to be overridden by a public interest, because most of the redacted information is also covered by the other exceptions invoked by the Commission.

47. In light of all this, the Ombudsman finds that the Commission was justified in refusing to grant (full) public access to the documents at issue.

The Commission’s delay in handling the requests

48. Public access to documents is a fundamental right that helps safeguard the transparency and legitimacy of the EU institutions, bodies, offices and agencies. To ensure meaningful access, it is key that the EU administration deals with every request for public access as swiftly as possible.

49. In accordance with Regulation 1049/2001, a confirmatory application should be handled within a maximum period of 30 working days.[19] However, the Commission adopted its replies 109, 118 and 243 working days after the prescribed deadline expired.

50. The Ombudsman finds it understandable that the complainant is extremely dissatisfied with the time taken by the Commission to deal with his request. While she acknowledges that the complainant’s requests were complex and concerned a significant number of documents, she takes the view that the process took far too long.

51. The fact that an institution has to consult third parties cannot in itself justify a delay, given that the Member States, like the EU institutions, have to ensure that Regulation 1049/2001 is applied effectively.[20] This means that Member State authorities should respond swiftly when they are consulted by the EU administration concerning a request for public access.

52. As delays are increasingly raised in complaints in this area, the Ombudsman opened an own-initiative inquiry into the time taken by the Commission to deal with requests for public access to documents in April 2022. [21] That inquiry aims to identify if there are any issues that could be addressed by systemic solutions. The Ombudsman included the files from this complaint in the sample of files inspected in the context of that own-initiative inquiry. This aspect of the complaint will therefore be pursued within the scope of that ongoing inquiry.

53. That said, the Ombudsman reiterates that the handling of the complainant’s requests took too long and that the reasons given for the delay are not convincing. The Ombudsman urges the Commission once again to deal with requests for public access to documents within the applicable deadlines.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[22]:

There was no maladministration by the European Commission in refusing access to (parts of) the documents at issue.

Regarding the delay in dealing with the complainant’s access requests, the Ombudsman is pursuing this aspect of the complaint within the scope of her ongoing own-initiative inquiry OI/2/2022/MIG into the time taken by the Commission to deal with public access requests.

The complainant and the Commission will be informed of this decision.

Suggestion for improvement

The Ombudsman suggests that the Commission address the clerical error it seems to have made in redacting parts of one of the documents[23].

 

Emily O'Reilly

European Ombudsman

Strasbourg, 22/02/2023

 

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049.

[2] The EU Pilot procedure is a mechanism for informal dialogue between the Commission and the Member State concerned on issues relating to potential non-compliance with EU law. It is used before a formal infringement procedure.

[3] INFR(2017)2184 with the Netherlands, INFR(2017)2185 with Italy, INFR(2017)2186 with Portugal, INFR(2017)4113 with Poland and INFR(2017)2187 with Denmark.

[4] In accordance with article 4(4) of Regulation 1049/2001.

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

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

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

[8] The Ombudsman previously urged the Commission to adopt the three final decision without further delay in the context of the present inquiry.

[9] The Commission launches a formal infringement procedure by sending a letter of formal notice requesting further information to the country concerned.

[10] In accordance with Article 4(4) of Regulation 1049/2001.

[11] Judgment of the General Court of 7 February 2018, Access Info Europe v Commission, T-852/16, paragraph 114, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=199183&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=76295.

[12] The Commission referred to the judgment of the Court of Justice of 14 November 2013, Liga para a Protecção da Natureza (LPN) and Republic of Finland v European Commission, Joined Cases C-514/11 P and C-605/11 P, paragraph 93, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=144492&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=77271.

[13] Judgment of the General Court of 25 November 2020 in case T-166/19, Bronckers v European Commission, para 46, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=234319&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=76295.

[14] Judgment of the General Court of 14 February 2012 in case T-59/09, Germany v Commission, paragraphs 51 and 54, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=119422&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=517167.

[15] See Commission’s communication ““EU law: better results through better application”, Annex (“Administrative procedures for the handling of relations with the complainant regarding the application of European Union law”), point 1, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN.

[16]GestDem 2021/1606, Minutes of meeting with Dutch authorities dated 24 May 2018, referenced Ares(2018)3237755 (hereafter ‘document 31’).

[17] See, for example, judgment of the General Court of 11 July 2018, ClientEarth v Commission, T-644/16, available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=203913&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=46943.

[18] Judgment of the General Court of 22 May 2012 in case T-344/08, EnBW Energie Baden-Württemberg v Commission, para 146, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=122982&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=77792.

[19] Article 8 (1) of Regulation 1049/2001.

[20] Judgment of the Court (Grand Chamber) of 18 December 2007, Sweden v Commission, C-64/05 P, paragraphs 85 f.: https://curia.europa.eu/juris/showPdf.jsf?text=&docid=71934&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4736432.

[21] The Ombudsman opened the own-initiative inquiry OI/2/2022/MIG on 4 April 2022, available at: https://www.ombudsman.europa.eu/en/opening-summary/en/154404.  

[22] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions

[23] GestDem 2021/1606, Minutes of meeting with Dutch authorities dated 24 May 2018, referenced Ares(2018)3237755 (hereafter ‘document 31’).