Background to the complaint

1. In 2017, the complainant, a non-governmental organisation acting for the prevention of child trafficking, contacted the European Anti-Fraud Office (OLAF) to denounce the trafficking of children by an adoption agency receiving EU funding. Following the “selection” process[1], OLAF decided not to open an investigation and dismissed the case. The complainant went to court to challenge this decision. The Court of Justice of the EU (CJEU) dismissed the action as inadmissible, considering that OLAF’s decision not to open an inquiry does not have binding legal effects capable of affecting the interests of the complainant.

2. In February 2023, the complainant asked the Commission for public access to documents related to these court proceedings.

3. The Commission identified seven documents[2] falling into two categories: (i) the court documents in the case at stake (such as the application for annulment, objection of inadmissibility etc.), and (ii) email exchanges between the Commission’s legal service and OLAF.

4. The Commission granted public access to most of the court documents[3]. It provided partial access to the application for annulment and the Commission’s objection of inadmissibility, invoking four exceptions to public access under the EU legislation on access to documents (Regulation 1049/2001)[4]. It argued that disclosure of parts of these documents would undermine the protection of the purpose of investigations[5] and the decision-making process[6], invoking a general presumption of non-accessibility recognised by the Court. It also said that some information needed to be kept confidential to protect commercial interests[7] and personal data[8].

5. The Commission refused access to the email exchanges between its legal service and OLAF, invoking the need to protect legal advice[9]. Regarding the document sent by OLAF to the legal service, the Commission relied on the need to protect the purpose of investigations[10] and the decision-making process[11] in light of a general presumption of non-accessibility.

6. The complainant asked the Commission to review its decision (by making a ’confirmatory application’) regarding three of the documents. In particular, it contested the refusal to disclose the exchanges between the legal service and OLAF, including the attachment, and objected to the partial public access given to its application for annulment.

7. In the absence of a reply within the extended time limit, the complainant turned to the Ombudsman.

8. Following the Ombudsman’s intervention[12], the Commission issued a confirmatory decision in November 2023. The Commission confirmed its initial decision and relied on the need to protect legal advice, the decision-making process and the purpose of investigations.

9. Dissatisfied with this outcome, the complainant turned again to the Ombudsman in December 2023.

The inquiry

10. The Ombudsman opened an inquiry into the Commission’s refusal to grant wider access to the three documents at issue.

11. In the course of the inquiry, the Ombudsman inquiry team inspected the documents. The Commission was invited to submit additional views but did not provide any.

Arguments presented to the Ombudsman

12. The complainant raised two arguments. First, it considered that the exchanges between OLAF and the Commission’s legal service were not “legal advice”, but should rather be qualified as “internal consultation” because OLAF is not an independent legal entity, but is part of the European Commission.

13. Second, the complainant argued that there is an overriding public interest in disclosure of these documents because “[t]he issue of child trafficking for intercountry adoption in Congo is a heinous crime against children and their families that needs full transparency”.

14. Concerning the exchanges of emails between its legal service and OLAF, the Commission argued that disclosing such exchanges would undermine the protection of legal advice[13], as it would reveal discussions between the legal service and OLAF in the context of the court proceedings brought by the complainant. It concluded that disclosing this document “would clearly have, in a foreseeable manner, a serious impact on the Commission's interest in seeking and receiving legal advice and on the Legal Service's capacity to assist the Commission and its services, in this case OLAF, in the assessment of legal strategy”.

15. The Commission added that the legal advice is of a “particularly sensitive nature in the sense of the Court of Justice’s case-law”, as it contains “particularly sensitive information, covering complex and delicate legal issues” and the “legal interpretation of sensitive factual elements”[14].

16. Concerning the document sent by OLAF to the legal service, the Commission explained in its confirmatory decision that the document describes, in detail, information collected by OLAF during the “selection phase” of its investigation, and provides an in-depth summary of the steps taken in that phase. Regarding the redacted sections of the court document (application for annulment), the Commission argued that these sections constitute exchanges between the source of the information and OLAF and are thus part of the case file.

17. To justify the refusal to grant access to (parts of) these documents, the Commission noted that the General Court had recognised that the disclosure of documents related to OLAF investigations could fundamentally undermine the objectives of investigative activities, as well as the decision-making process, both now and in the future[15]. In addition, it argued that disclosing the information at stake would prevent OLAF’s staff from making remarks independently and without being unduly influenced by the prospect of wide disclosure[16].

18. The Commission further argued that disclosure of these documents would reveal OLAF’s strategy and the means by which OLAF collects additional information to support the selection process in a specific case. This would concretely and effectively undermine OLAF’s interests in ensuring a protected selection phase and avoiding any prejudice to the proper and confidential operation of the selection phase. Disclosing these documents would also run the risk of discouraging potential witnesses and informants from cooperating with OLAF, thus depriving OLAF of useful information to initiate investigations.

19. Finally, according to the Commission, disclosing such documents would reduce OLAF’s chances of receiving independent assessments from its collaborators and of consulting the Commission’s services or other EU bodies on very sensitive subjects.

20. As to the existence of a potential overriding public interest, the Commission concluded that the considerations put forward by the complainant in the confirmatory application were too general and did not demonstrate a pressing need for the disclosure of the documents.

The Ombudsman's assessment

The exchanges between the Commission legal service and OLAF

21. EU case law has established a three-stage approach[17] that the EU institution concerned must follow when examining whether a document containing legal advice should be disclosed. Firstly, the document in question must indeed relate to legal advice. Secondly, the institution concerned must examine whether the disclosure of the legal advice would be harmful to its interest in seeking and receiving frank, objective and comprehensive legal advice. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical. Thirdly, if an institution takes the view that disclosure of a document would undermine the protection of legal advice, that institution must ascertain whether there is any overriding public interest justifying disclosure.

22. The inspection showed that the exchanges between the Commission’s legal service and OLAF contain the approach that the legal service recommended as defence in the court proceedings brought by the complainant against OLAF. Thus, they contain “legal advice”. The fact that OLAF is part of the Commission does not affect that conclusion.[18]

23. Based on the inspection of the document, it is not clear to the Ombudsman how disclosing the legal advice in question would be harmful to the Commission’s interest in seeking and receiving frank, objective and comprehensive legal advice in the future. The legal advice in question could be considered as a rather standard advice one would expect the legal service to provide in the context of any preparation of a defence in court. The Ombudsman is not convinced that the legal advice contains “particularly sensitive information, covering complex and delicate legal issues” and the “legal interpretation of sensitive factual elements”.

24. That said, given the limited content in question, the Ombudsman sees no useful purpose to continue her inquiry into this aspect of the complaint.  

The documents related to OLAF’s case file

25. The inspection confirmed that the document sent by OLAF to the legal service contains information collected by OLAF during the “selection phase” of the investigation, as well as a summary of the steps taken in that phase.  

26. Regarding the redacted sections of the application for annulment, the inspection showed that they include information sent by the complainant as informant to OLAF, to support the opening of an investigation, as well as exchanges he had with OLAF before the case was dismissed at selection stage.

27. Generally, to invoke an exception under Regulation 1049/2001 and refuse access, an institution must show that it is reasonably foreseeable that disclosure would undermine the interests it cites. In certain cases, an institution can rely on a ‘general presumption’ to deny access. This means that an exception justifying a refusal to grant access is presumed to apply to all documents of a certain type[19].

28. In its confirmatory decision, the Commission referred to a general presumption of non-accessibility related to OLAF’s case files[20], and considered the presumption to apply by analogy to the documents at stake. However, the Commission did not explain why or to what extent the presumption could apply to these documents even though the investigation was not ongoing and no follow-up activities were foreseen. The Ombudsman regrets the Commission’s lack of clarity in this regard.

29. Nevertheless, the Commission carried out an individual assessment of the documents. Having inspected the documents, the Ombudsman agrees that the information withheld could reveal the strategy of OLAF as to how it selects cases and the means by which OLAF collects additional information. Therefore, the Ombudsman considers that it was reasonable for the Commission to conclude that wider disclosure could undermine the purpose of OLAF’s investigations and its decision-making in the future.

The existence of an overriding public interest

30. The documents could still be released if there was a public interest in disclosure that would be so important as to override the need to protect the purpose of investigations and the decision-making process.

31. In this case, while the Ombudsman recognises that the rights of children and the issue of child trafficking are important and of great public interest, it is not clear how disclosing the documents at stake would serve this interest, and how such public interest would outweigh the need to protect the purpose of OLAF’s investigations. The complainant refers to a risk of repetition if full transparency is not provided. It is not readily clear to the Ombudsman, based on the information provided by the complainant, what behaviour the complainant fears would be repeated specifically and how full disclosure could prevent such behaviour in the future.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[21]:

There are no further inquiries justified.

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

 

Rosita Hickey
Director of Inquiries

Strasbourg, 02/02/2024

 

[1] During the selection phase, OLAF verifies and analyses information whether there are grounds to open an investigation. See the Guidelines on Investigation Procedures for OLAF Staff, available at: https://anti-fraud.ec.europa.eu/guidelines-investigations-olaf-staff_en.

[2] The exchange of emails from 2 to 8 February 2018 between the Commission’s Legal Service and OLAF (Document 1) and the annex to the exchange of emails (Document 1.1); The application for annulment against OLAF’s decision (Document 2); The question from the Court to the applicant (Document 3); The applicant reply’s to the question from the Court (Document 4); The Commission’s objection of inadmissibility (Document 5); The applicant’s objection of inadmissibility (Document 6).

[3] Only personal data was redacted from Documents 3, 4 and 6 (as described above).

[4] 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.

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

[6] Article 4(3) second subparagraph of Regulation 1049/2001

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

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

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

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

[11] Article 4(3) second subparagraph of Regulation 1049/2001.

[12] See case 1327/2023/ACB.

[13] Within the meaning of Article 4(2) third indent of Regulation 1049/2001. The Commission relied on case law of the CJEU, for example, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, and judgment of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039.

[14] Judgment of the Court of 8 June 2023, Council of the European Union v Laurent Pech, C-408/21, EU:C:2023:46, paragraph 61.

[15] Judgment of 26 April 2016, T-221/08, Strack v Commission, EU:T:2016:242, paragraphs 151 to 162 and judgment of the General Court of 26 May 2016, T-110/15, IMG v Commission, EU:T:2016:322, paragraphs 36-37.

[16] Referring in that regard to the judgment of the General Court of 15 September 2016, Philip Morris Ltd v European Commission, EU:T:2016:487, T-18/15. 

[17] Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council, EU:C:2008:374, paragraphs 37-46.

[18] See for example the judgment of the General Court in case T-755/14, Herbert Smith Freehills v Commission, EU:T:2016:482, paragraphs 47-53.

[19] See European Ombudsman guide on the right of public access to EU documents, available at: https://www.ombudsman.europa.eu/en/document/en/163353#toc_h_7_6.

[20] Judgment of the General Court in case T‑110/15, IMG v Commission, EU:T:2016:322, and Judgment of the General Court in case T-221/08, Strack v Commission, EU:T:2016:242.

[21] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions, available at: https://www.ombudsman.europa.eu/en/legal-basis/implementing-provisions/en#hl10