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Decision on the European Commission’s refusal to give full public access to documents concerning a Horizon 2020 mineral exploration research project (cases 1132/2022/OAM and 1374/2022/OAM)

Måndag | 17 april 2023

The case concerned the European Commission’s refusal to give full public access to documents concerning a Horizon 2020 mineral exploration research project implemented by a pan-European consortium. The complainant, an environmental organisation from Spain, was interested in the implementation of the project at a Spanish mine, San Finx.

The Commission granted only partial access to the documents, arguing that their full disclosure would have undermined the commercial interest of the consortium’s members.

After reviewing the documents, the Ombudsman considered that they contain information that can be understood as being “environmental information” within the meaning of the EU Aarhus Regulation. Such information should benefit from greater transparency. She asked the Commission to review its position with a view to granting the widest possible public access. The Commission maintained its position that no further access can be granted.

While the Ombudsman regretted the Commission’s decision not to disclose more parts of the documents at stake, she acknowledged that the Commission has already made information publicly available about the research project and, in particular, about the activities at the San Finx mine. In view of this, the Ombudsman considered that further inquiries into this matter are not justified.

Having said that, the Ombudsman is concerned about the Commission’s application of the EU Aarhus Regulation and the Aarhus Convention when assessing requests for public access to documents. She emphasised that the exceptions to granting public access have to be interpreted in a restrictive way as regards environmental information and reminded the Commission that transparency in this area is crucial to enhance the legitimacy of, and public trust in, the EU’s activities.

Recommendation on how the Council of the European Union handled a request for public access to the legal opinion on the proposed EU directive on adequate minimum wages (case 1834/2022/NH)

Tisdag | 04 april 2023

The case concerned a request for public access to an opinion of the legal service of the Council of the EU on a draft law on adequate minimum wages.

The Council granted the complainant access to parts of the opinion in May 2021. It invoked two exceptions under the EU legislation on public access to documents to justify redacting the remaining parts of the document, arguing that full disclosure could undermine the decision-making process (since negotiations on the law were still ongoing at the time) and the protection of legal advice.

The Ombudsman found that the Council had not demonstrated how disclosure of the document would undermine its decision-making process or its capacity to seek and obtain frank, objective and comprehensive advice. Her view is that greater transparency when the negotiations were still ongoing would have greatly facilitated public participation in the EU’s legislative process.

The Ombudsman therefore considered that the Council’s refusal to grant full public access to the legal opinion at the time of the confirmatory decision constituted maladministration. As the complainant is still interested in receiving full public access to the opinion at this stage, the Ombudsman made a corresponding recommendation.