Meeting between DG SANTE and the EU Ombudsman on tobacco policy
Dear European Ombudsman,
Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:
Information on any meetings held or correspondence between between DG SANTE and the EU Ombudsman relating to tobacco policy, in the 30 days leading up to and including the 29th August 2024.
This includes:
• Any internal emails on the organisation or substance of the meeting.
• The agenda of the meeting.
• Minutes of the meeting.
• Any documents that were inspected by the Ombudsman prior to or during the meeting.
• Any documents requested by the Ombudsman following the meeting.
Yours faithfully,
Peter Beckett,
Brussels
BELGIUM
Dear European Ombudsman,
With reference to my request dated today, I would like to correct an error. In the second paragraph, it states
"Information on any meetings held or correspondence between between DG SANTE and the EU Ombudsman relating to tobacco policy, in the 30 days leading up to and including the 29th August 2024."
This should read
"Information on any meetings held or correspondence between between DG SANTE and the EU Ombudsman relating to tobacco policy, in the 90 days leading up to and including the 29th August 2024."
Please accept my apologies for the error.
Yours faithfully,
Peter Beckett
Dear Mr Beckett,
Thank you for your request for public access to documents that you
submitted to the European Ombudsman’s Office on 29/08/2024.
Your request has been registered today under reference Ares(2024)6151656.
It will be dealt with in accordance with Regulation 1049/2001 regarding
public access to European Parliament, Council and Commission documents and
the Decision of the European Ombudsman on internal procedures for dealing
with applications for public access to documents and requests for
information.
We will deal with your request as soon as possible and reply to you no
later than 20/09/2024 (15 working days from the date of registration of
your request).
If you have any questions, please do not hesitate to contact our Office by
telephone: + 33 (0)3 88 17 23 13 or e-mail: [1][European Ombudsman request email].
Yours sincerely,
[2]cid:image003.png@01D86A9B.093A7210 European Ombudsman
Access to Documents and Freedom of
Information Team
1 avenue du Président Robert Schuman
CS 30403
F - 67001 Strasbourg Cedex
[3]www.ombudsman.europa.eu
References
Visible links
1. mailto:[European Ombudsman request email]
3. European Ombudsman Home Page
http://www.ombudsman.europa.eu/
Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping
Sent by ve_ombu.euroombudsman (OMBU) <[European Ombudsman request email]>. All
responses have to be sent to this email address.
Envoyé par ve_ombu.euroombudsman (OMBU) <[European Ombudsman request email]>. Toutes
les réponses doivent être effectuées à cette adresse électronique.
Dear Mr Beckett,
Yesterday, we have sent you the reply to your public access request below.
However, we have received a delivery failure message.
Please find it attached again.
Kind regards,
Tereza Mandjukova
Tereza Mandjukova
Transparency Officer
European Ombudsman
1 avenue du Président Robert Schuman
CS 30403
F - 67001 Strasbourg Cedex
[5]www.ombudsman.europa.eu
From: Euro-Ombudsman
Sent: 17 September 2024 16:08
To: '[email address]'
<[email address]>
Subject: reply to your request for public access Ares(2024)6151656
Dear Mr Beckett,
I am writing in reply to your request for public access of 29 August 2024
to all documents relating to meetings and correspondence between the
European Commission (DG SANTE) and the European Ombudsman during the 90
days prior to 29 August 2024 concerning "tobacco policy".
We understand that your request concerns [6]complaint 517/2024/FA, which
is still ongoing.
We have registered your request under reference Ares(2024)6151656. We have
dealt with your request according to Regulation 1049/2001[7][1] and the
Ombudsman’s Decision on the handling of requests for public access to
documents.[8][2]
We have identified 24 documents as falling within the scope of your
request. For a list of the documents and their reference numbers, please
see the attached table. Please note that the meeting report is available
on our website:
[9]https://www.ombudsman.europa.eu/en/doc/i...
We have decided to grant you partial access to 14 documents (marked in
green in the list of documents). We have redacted the documents with a
view to protecting personal data in accordance with Article 4(1)(b) of
Regulation 1049/2001 together with Regulation 2018/1725. According to
Article 4(1)(b) of Regulation 1049/2001, access to a document (or parts
thereof) shall be refused if its disclosure would undermine the protection
of privacy and the integrity of the individual. If you wish to have access
to the redacted personal data, you may submit a corresponding request. It
should be noted that Article 9(1)(b) of Regulation 2018/1725 requires to
demonstrate, in your potential request, the need to have the personal data
transferred for a specific purpose of public interest and that its
disclosure would not prejudice the legitimate interests of others.
As regards the remaining nine documents, we regret to inform you that we
cannot grant you access to the documents (marked in orange) in accordance
with Article 4(2) third indent of Regulation 1049/2001. This is because
disclosing the documents would undermine the purpose of inspections,
investigations and audits. The Commission provided these documents to the
Ombudsman in the course of the inquiry on a confidential basis in line
with Article 4(8) of the Ombudsman’s Implementing Provisions. Disclosing
documents, identified as confidential by the EU body concerned during the
inquiry would be likely to compromise the Ombudsman’s ability to receive
all the information, necessary for the assessment of a complaint.
Thus, disclosing such documents could compromise the principle of mutual
trust and loyal cooperation between the EU bodies and the Ombudsman, which
would seriously undermine the Ombudsman’s capacity to carry out inquiries.
The exception for the protection of investigations under Regulation
1049/2001 applies unless there is an overriding public interest in
disclosure of the document. We were not, however, able to identify an
overriding public interest that could override the necessity of ensuring
that the Ombudsman can effectively carry out her inquiries. In accordance
with Article 4(6) of Regulation 1049/2 001, we have considered whether
partial access to the document could be granted. However, we have
concluded that no meaningful partial access is possible.
Should you wish to challenge this decision, you may request a review under
Article 7(2) of Regulation 1049/2001 (‘confirmatory application’
procedure). You may do so by sending an e -mail to
[10][European Ombudsman request email] within 15 working days of having received this
decision.
If you have any questions or requests for clarifications, you are welcome
to contact us at the email above.
Sincerely,
Tereza Mandjukova
Tereza Mandjukova
Transparency Officer
European Ombudsman
1 avenue du Président Robert Schuman
CS 30403
F - 67001 Strasbourg Cedex
[11]www.ombudsman.europa.eu
────────────────────────
────────────────────────
[12][1] Regulation 1049/2001 of the European Parliament and of the Council
regarding public access to European Parliament, Council and Commission
documents, available at:
[13]https://eur-lex.europa.eu/legal-content/...
[14][2] [15]https://www.ombudsman.europa.eu/en/docum....
References
Visible links
1. file:///tmp/cid:filelist.xml@01DB09A9.A9121860
2. file:///tmp/cid:editdata.mso
3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. European Ombudsman Home Page
http://www.ombudsman.europa.eu/
6. https://www.ombudsman.europa.eu/en/openi...
7. file:///tmp/foiextract20240918-50714-xbx1gj#_ftn1
8. file:///tmp/foiextract20240918-50714-xbx1gj#_ftn2
9. https://www.ombudsman.europa.eu/en/doc/i...
10. mailto:[European Ombudsman request email]
11. European Ombudsman Home Page
http://www.ombudsman.europa.eu/
12. file:///tmp/foiextract20240918-50714-xbx1gj#_ftnref1
13. https://eur-lex.europa.eu/legal-content/...
14. file:///tmp/foiextract20240918-50714-xbx1gj#_ftnref2
15. https://www.ombudsman.europa.eu/en/docum...
Dear EO NOREPLY,
Please find below our confirmatory application in relation to this request under Regulation 1049/2001. We do not believe that there is an over riding public interest in witholding the documents. As the Ombudsman will know, the documents it has chosen to withhold constitute the bullk of the investigation under consideration here; the documents where access has been granted are merely logistical emails. We are therefore treating this as a complete denial by the Ombudsman.
The general rule is that “the public is to have access to the documents of the institutions and refusal of access is the exemption” (T-264/04, WWF European Policy Programme v Council), not that there must be an "overriding public interest" in disclosure during an active investigation, as the Ombudsman claims here.
In order to issue a denial, disclosure must endanger the completions of inspections, investigations or audits (T-223-12, Ntouvas v ECDC paragraph 109). In this case, we do not believe that the purpose of the Ombudsman’s investigation, which is to determine whether DG SANTE behaved inappropriately (or committed “maladministration”) while awarding a framework contract, would be at all affected by the disclosure of the documents sought.
If the Ombudsman disagrees, it is obliged to undertake a review of the documents it has chosen not to disclose and explain how access to each individual document could specifically and effectively undermine the interest protected (C-39-05 P and C-52-05 P, Sweden and Turco v Council, paragraph 49). The justification provided must explain how public disclosure would entail a specific risk. It cannot be too generic as it must enable the applicant to understand the reasons for the denial (T-552/19 OP, Malacalza Investimenti Srl v ECB). The justifications in this case do not mention any specific risk (which, we believe, is because there isn't one).
Moreover, the risk of undermining a protected interest must be reasonably foreseeable and not purely hypothetical (T-211/00, Aldo Kuijer v Council). The reason given by the Ombudsman in this case is purely hypothetical. If the Ombudsman is not able to provide a justification which includes a reasonably foreseeable risk stemming from the disclosure, then access must be granted. In this case, the justifications have been entirely generic.
The use of a general presumption for ongoing investigations does not exempt the Ombudsman from these requirements (T-59/09, Germany v Commission).
Moreover, given that the investigation concerns the impartiality of contractors whose core objective according to the contract notice (HADEA/2022/OP/0011) is to “support the implementation and further development of the EU’s tobacco control policy and legislation” (emphasis added), there is an overriding public interest in favour of disclosure given the impact of legislative files on European citizens (C-39/05 P and C-52/05 P, Sweden and Turco v Council). This is set out in Recital 2 of Regulation 1049/2001 itself.
Moreover, the documents relate to the use of public funds, where there is also an over riding public interest in transparency. We believe the documents withheld comprise, in part, contractual arrangements and declarations of honour made by and entered into with a recipient of public funds.
Yours sincerely,
Peter Beckett
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Dear Mr Beckett,
We refer to your emails of 18 September 2024, by which you requested us to
review the Office’s initial decision on your request for public access to
documents concerning meetings held by DG SANTE and the Ombudsman relating
to tobacco policy in the 90 days leading up to and including the 29th
August 2024 - a ‘confirmatory application’ under Article 8(1) of
Regulation 1049/2001 and the Ombudsman’s Decision on the handling of
requests for public access to documents (Ares(2024)6640524).
Your application is currently being handled. However, we will not be in a
position to complete the handling of your application within the time
limit of 15 working days, which expires today.
An extended time limit is needed as different third parties must be
consulted.
Therefore, we have to extend the time limit with 15 working days in
accordance with Article 8(2) of Regulation (EC) No 1049/2001 regarding
public access to documents. The new time limit expires on 31 October 2024
though we hope to revert within the next few days.
We apologise for this delay and for any inconvenience this may cause.
Yours faithfully,
European Ombudsman
Access to Documents and Freedom of Information Team
1 avenue du Président Robert Schuman
CS 30403
F - 67001 Strasbourg Cedex
[1]www.ombudsman.europa.eu
References
Visible links
1. European Ombudsman Home Page
http://www.ombudsman.europa.eu/
Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping
Sent by ve_ombu.euroombudsman (OMBU) <[European Ombudsman request email]>. All
responses have to be sent to this email address.
Envoyé par ve_ombu.euroombudsman (OMBU) <[European Ombudsman request email]>. Toutes
les réponses doivent être effectuées à cette adresse électronique.
Dear Mr Beckett,
We refer to your emails of 18 September 2024, by which you requested us to
review the Office’s initial decision on your request for public access to
documents concerning meetings held by DG SANTE and the Ombudsman relating
to tobacco policy in the 90 days leading up to and including the 29th
August 2024 - a ‘confirmatory application’ under Article 8(1) of
Regulation 1049/2001 and the Ombudsman’s Decision on the handling of
requests for public access to documents (Ares(2024)6640524).
Your application is currently being handled. However, we will not be in a
position to complete the handling of your application within the time
limit of 15 working days, which expires today.
An extended time limit is needed as different third parties must be
consulted.
Therefore, we have to extend the time limit with 15 working days in
accordance with Article 8(2) of Regulation (EC) No 1049/2001 regarding
public access to documents. The new time limit expires on 31 October 2024
though we hope to revert within the next few days.
We apologise for this delay and for any inconvenience this may cause.
Yours faithfully,
European Ombudsman
Access to Documents and Freedom of Information Team
1 avenue du Président Robert Schuman
CS 30403
F - 67001 Strasbourg Cedex
[5]www.ombudsman.europa.eu
References
Visible links
1. file:///tmp/cid:filelist.xml@01DB1B58.9FBC2060
2. file:///tmp/cid:editdata.mso
3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. European Ombudsman Home Page
http://www.ombudsman.europa.eu/
Dear Mr Beckett,
Please find attached the reply to your confirmatory application as well as
additional documents disclosed.
Sincerely,
[1]cid:image003.png@01D86A04.2A392070 Secretariat
European Ombudsman
Directorate for Administration
[2][European Ombudsman request email]
[3]T. +33 3 88 17 23 13
[4]www.ombudsman.europa.eu
References
Visible links
2. file:///tmp/[European Ombudsman request email]
3. Click to call
file:///tmp/+33388172313
4. European Ombudsman Home Page
http://www.ombudsman.europa.eu/