Decision in Case 624/2018/TE on How The

Decision in case 624/2018/TE on how the European Commission dealt with a request for access to a list of meetings with stakeholders on the Japan-EU Free Trade Agreement

Decision Case 624/2018/TE - Opened on 17/04/2018 - Decision on 17/04/2018 - Institution concerned European Commission ( No maladministration found ) |

The case concerned a request for access to a list of meetings between the Commission and stakeholders on the Japan-EU Free Trade Agreement. EU access to documents rules only apply if the requested documents are in the possession of the institution concerned. The Commission rejected the request on the grounds that it has not drawn up such a list. In addition, it stated that it would be a disproportionate administrative burden to create such a list.

The Ombudsman was satisfied with the Commission’s explanation for not having such a list and agreed that it was not required to create one. She therefore closed the inquiry with a finding of no maladministration.

Background to the complaint 1. The complainant is a civil society organisation based in Brussels.

2. On 7 December 2017, the complainant requested [1] public access to “ a list of meetings of DG Trade officials and/or representatives (including the Commissioner and the Cabinet) and stakeholders, including trade unions, civil society groups, as well as representatives of individual companies, industry associations, law firms, public consultancies and think tanks in which the Japan-EU Free Trade Agreement (JEFTA) was discussed (between January 2017 and today) ”, in line with the EU’s rules for public access to documents [2] .

3. On 27 February 2018, the Commission’s Directorate-General for Trade (DG Trade) responded that it does not hold any document that would correspond to the complainant’s description.

4. The Commission also stated that it could not create such a list now since to do so would entail a disproportionate administrative burden for the Commission. It noted that the unit in charge of the request “ would need to identify and review quite a number of documents as well as to consult other units in DG Trade ”. This would be very burdensome in the current circumstances in which the existing resources were devoted entirely to the conclusion of the negotiations with Japan.

1 5. On 27 February 2018, the complainant asked the Commission to review its decision (it made a so-called ‘confirmatory application’).

6. On 26 March 2018, the Commission confirmed its initial decision.

7. Dissatisfied with the reply, the complainant turned to the Ombudsman on 28 March 2018. The inquiry 8. The Ombudsman opened an inquiry into the following aspect of the complaint:

The Commission wrongly refused access to a list of its external meetings on JEFTA between January and December 2017

9. The Ombudsman's decision takes into account the arguments and views put forward by the parties. Arguments presented to the Ombudsman 10. The complainant argues that the Commission is obliged to keep track of all its meetings with external stakeholders, in line with the Practical Guide to Staff Ethics and Conduct. Concerning the Commission’s argument that it would be a disproportionate administrative burden to create a list of meetings, the complainant argues that a previous access request [3] to a similar list of meetings for the period between January 2014 and January 2017 had been granted. The current request was no different. The fact that access to this similar list had been granted would indicate that the requested list actually exists.

11. The Commission maintained in its review decision that the requested list of meetings does not exist and that its creation would constitute a disproportionate administrative burden. The Commission explained that it makes publicly available information regarding meetings of Commissioners, their Cabinets and Directors-General, with external organisations and self-employed individuals, including the ones mentioned in the complainant’s request. The Practical Guide to Staff Ethics and Conduct would suggest that reports of meetings be registered and filed rather than lists of meetings .

12. Concerning the complainant’s earlier access to document request, the Commission argued that this request was different in scope and substance, as it not only asked for a list of meetings, but also for the minutes/reports of these meetings and all correspondence between DG Trade and stakeholders relating to JEFTA. In its reply to this earlier request, DG Trade stated that a single list of meetings does not exist. Rather, it identified 33 separate documents related to minutes/reports and correspondence. The Commission therefore claims that “ there was no difference in the handling of both applications in so far as the non-identification of a list of meetings was concerned ”. The Ombudsman's assessment 13. The Ombudsman notes that the right of public access to documents applies only to documents in the possession of an institution [4] . The Court of Justice of the EU held that “ an application for access that would require the Commission to create a new document, even if that document were based on information already appearing in existing documents held by it, falls outside the framework of Regulation No 1049/2001 ” [5] .

2 14. The Ombudsman has consistently taken the view that there exists a presumption of legality as regards an institution's statement that a document does not exist [6] . This presumption is of course rebuttable.

15. The complainant has argued that the list must exist, since a previous access request for access to a similar list of meetings held between January 2014 and January 2017 had been granted.

16. From the correspondence related to the previous access to document request [7] , it appears that that request was broader in scope and substance than the present one. The complainant had not only asked for a list of meetings between DG Trade and stakeholders relating to JEFTA (point 1), but also to minutes and reports of these meetings (point 2) as well as to all correspondence between DG Trade and stakeholders on JEFTA (point 3). In its reply to the request, the Commission had stated that:

“ As regards the first point of your request, we would like to inform you that we are not able to identify any existing document within the meaning of Article 2(3) of Regulation 1049/2001, which contains a list of stakeholder meetings related to the EU-Japan Free Trade Agreement. Unfortunately we also do not have resources to generate such list ad hoc either as in accordance with the Code of Good Administrative Behaviour this would represent a disproportionate administrative burden for DG Trade ”.

17. In a further email of 7 March 2017, the Commission had then confirmed the non-existence of the list and the disproportionate burden its creation would involve. It added that:

“[F]or the purpose of your request, we have already created and released a list containing the meeting reports and correspondence mentioned in points 2 and 3 of your request, from which you could extract information with respect to the first point of your application. We very much hope this information will be useful for you ”.

18. The Commission’s statements in the two access requests seem consistent. In these circumstances, this evidence does not call into question the view of the Commission that the requested list does not exist.

19. The Ombudsman also agrees that in the present context, where the Commission’s limited resources are focused on concluding the agreement with Japan, it would be a disproportionate burden to create the list.

20. The inquiry has thus not brought to light any instance of maladministration. Conclusion(s) Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Commission.

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

Fergal Ó Regan

Coordination of Public Interest Inquiries ¤ Unit 2

Strasbourg, 17/04/2018

[1] Registered under reference number Gestdem 2017/7337.

[2] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43–48 (Regulation 1049/2001).

[3] Registered under reference number Gestdem 2017/311.

[4] Article 2(3) of Regulation 1049/2001.

[5] Case C-491/15 P Typke v. Commission [2017] ECLI:EU:C:2017:5, para. 31.

[6] Decision of the European Ombudsman closing the inquiry into complaint 1392/2012/DK against the European Commission, available at: https://www.ombudsman.europa.eu/cases/decision.faces/en/54569/html.bookmark

[7] Registered under reference number Gestdem 2017/311.