On 13.10 2023, Corporate Europe Observatory submitted a confirmatory application to the Commission's Secretariat-General:

With this message I would like to appeal DG MOVE’s response (dated October 5th) to my access to documents request regarding lobbying towards the European Commission concerning the Dutch government’s intention to reduce flights at Amsterdam Schiphol airport (EASE 2023/4985). The request concerns contacts between companies and lobby groups (including Schiphol Group, KLM, DHL, ATA, ACI, etc.) and the Commission (19 different interactions, more than 35 documents in total). Unfortunately, in 17 out of 19 cases DG MOVE refuses access to the documents (exceptions are two documents that are already online elsewhere). My request covers the period from 17 March 2023 until the date of the request, i.e. 24 August 2023. The request is a follow-up from a previous identical access to documents request ( EASE 2023/1701) covering the period from 1 March 2022 until 17 March 2023. This request resulted in the disclosure of a large number of documents.

In its response (EASE 2023/4985), DG MOVE argues that “disclosure is prevented by exceptions to the right of access laid down in Article 4 of Regulation (EC) No 1049/2001, as “disclosure would undermine the protection of (…) the purpose of inspections, investigations and audits”. The documents, DG MOVE argues, “form part of the administrative file of an ongoing review.” This refers to the “ongoing review, engaged by the Commission services under Article 8(3) of Regulation (EU) No 598/2014, following a formal notification submitted by the Dutch authorities.” DG MOVE argues that “disclosure of the documents requested would affect the purpose of the review, as well as the climate of mutual trust between the authorities of the Member State in question and the Commission”.

We disagree with this decision for several reasons:
- firstly, the Commission’s review started after the official notification by the Dutch government, which was submitted on September 1st. The documents covered by my request (minutes of lobby meetings as well as lobbying correspondence) all date from before this (April-July 2023). The Commission’s review had not started at the time of these lobby meetings and correspondence. They can therefore not convincingly be defined as “part of the administrative file of an ongoing review” of the Dutch government’s notification.
- in addition to this, the documents covered by EASE 2023/4985 which the Commission argues “form part of the administrative file” all concern private sector lobbying activities: meetings and correspondence with interest groups that oppose the Dutch government’s intention to reduce flights at Schiphol airport. DG MOVE failed to justify why such documents are now defined as part of the administrative file of the review and are therefore secret, nor how the disclosure of these private sector lobbying documents would affect the purpose of the review, as well as the climate of mutual trust between the Dutch government and the European Commission. We cannot see how disclosure of these airport and airline industry lobbying documents would have this effect.
- DG MOVE moreover did disclose numerous documents as part of my previous, identical access to documents request EASE 2023/1701 (covering the period from 1 March 2022 until 17 March 2023). Why do lobbying documents covered by EASE 2023/4985 “form part of the administrative file of an ongoing review”, whereas those covered by EASE 2023/1701 do not? This is inconsistent and unconvincing. Randomly defining lobby documents as part of an administrative file of an ongoing review undermines the public right to know about the role of lobbying in EU decision-making, as these documents will be covered by secrecy for the length of the review (which could be a full year).
- some of the documents covered by the request could be official corporate complaints against the Dutch government’s plans, demanding that the European Commission’s opens an investigation and blocks the reduction of flights at Schiphol airport. The Commission must ensure transparency around such corporate lobby complaints about public authorities allegedly violating Single Market law, especially those that lead to official examination procedures.

We disagree with DG MOVE’s assessment that there is no overriding public interest. There is a clear public interest in the disclosure of these documents. The transparency rules as set out in the Lisbon Treaty oblige the EU institutions to work as openly and as closely as possible to citizens. There is moreover clearly a lot at stake for EU citizens in this case, as it concerns the right of public authorities to introduce strong and ambitious policy measures in the public interest, also when these are inconvenient for vested commercial interests. This is in fact crucial for public trust in government decision-making, as well as in EU decision-making.
This access to documents request happens in the context of a lack of European Commission transparency around corporate lobby complaints about alleged violations of Single Market law as well as the reviews that the Commission launches. As far as we can see, there is no publicly available information - on the European Commission’s websites - about the Commission’s review of the Dutch government’s notification, nor about the complaint by the airport lobbies. More transparency is needed, including comprehensive and up-to-date information about complaints received, reviews and examination procedures initiated and decisions made. The absence of such pro-active transparency makes DG MOVE’s secrecy around the documents covered by EASE 2023/4985 even more problematic.

Yours faithfully,
Olivier Hoedeman
on behalf of Corporate Europe Observatory (CEO)
Rue d'Edimbourg 26
1050 Brussels