European Ombudsman
Case-handling Unit
Decision
in case 221/2021/DL on the European
Commission's refusal to give public access to
documents concerning travel expenses related to
an official trip by a staff member of the European
Anti-Fraud Office (OLAF)
The complainant requested that the European Commission grant public access
to documents concerning travel expenses incurred by a director of the
European Anti-Fraud Office (OLAF) during an official trip. The Commission
refused access, invoking an exception under the EU’s rules on public access to
documents, and arguing that disclosure could undermine the privacy of the
individual concerned.
The Ombudsman inspected the documents identified by the Commission as
falling under the request. She found that the Commission’s refusal to disclose
these documents was consistent with the applicable rules. The Ombudsman
therefore closed the case, finding no maladministration.
However, the Ombudsman takes the view that greater transparency concerning
expenses incurred by senior managers in the EU institutions would enhance
public trust. As such information is not particularly sensitive, the Ombudsman
suggests that the Commission consider providing greater transparency in
relation to such travel expenses.
Background to the complaint
1. In February 2020, the complainant asked the European Commission1 to give
public access to documents containing information on an official trip by a
director at the European Anti-Fraud Office (OLAF). In particular, the
complainant wished to get access to documents containing a) the place of origin
and destination and the amount spent on travel and transportation, b) the exact
dates and duration of the trip, c) the amount spent on accommodation, d) the
amount spent on subsistence and e) other information, including miscellaneous
costs. She specified that, if the travel was by air taxi and if a group of people
took part in the visit, she also wished to obtain documents containing details
about the other travellers, including their names and job titles.
1 The European Anti-Fraud Office is part of the administration of the Commission.
1 avenue du Président Robert Schuman
T. + 33 (0)3 88 17 23 13
www.ombudsman.europa.eu
CS 30403
F. + 33 (0)3 88 17 90 62
eo@ ombudsman.europa.eu
F - 67001 Strasbourg Cedex
2. In May 2020, the Commission took a decision, refusing to grant access. It
stated that it had identified five documents as falling within the scope of the
request, a summary of the travel costs and four supporting documents
corresponding to the expenses occurred. However, it invoked an exception
under the EU’s rules on public access to documents, arguing that disclosure
could undermine the privacy and integrity of the director concerned.2
3. Dissatisfied with the Commission’s reply, the complainant turned to the
Ombudsman in February 2021.
The inquiry
4. The Ombudsman opened an inquiry into the Commission’s refusal to grant
public access to the documents containing details about the official trip. In the
course of the inquiry, the Ombudsman’s inquiry team inspected the documents
identified by the Commission.
Arguments presented to the Ombudsman
Arguments presented by the complainant
5. The complainant argued in essence that:
The Commission should grant access to details about travel expenses,
which are financed with public money. While such expenditure is
subject to audits, there is also clearly a public interest providing
transparency about travel expenses, so public bodies can be held
accountable.
The Commission’s ‘Guidance Note on access to names and functions of
Commission staff’ implies that the Commission should disclose the
names of its directors unless very specific circumstances apply.3
The requested documents do not constitute, in their entirety, ‘personal
data’. The travel destination, travel dates, modes of transport, travel
costs, accommodation, daily allowances and miscellaneous costs are not
personal data. Since the Commission has most likely entered all data in
its ‘Mission Processing System’ (MiPS), it should be possible to extract
the data in another format, excluding the personal data (the names).
In any case, the disclosure of the director’s personal data would be in
line with applicable rules on data protection. The rules require as a first
2 Article 4(2) of Regulation 1049/2001 regarding public access to European Parliament, Council and
Commission documents, available at:
https://eur-lex.europa.eu/legal-
content/EN/ALL/?uri=CELEX%3A32001R1049. 3 Access to names and functions of Commission staff guidance note, Ares(2019)4352523, 8 July 2019.
2
step that there is a necessity to disclose the data. Debate and public
scrutiny of expenditure constitute such a necessity. The Commission
should not rely heavily on case law prior to the current data protection
rules, to dispute the necessity. Once the necessity is established, the
rules require, as a second step, that disclosure must not prejudice the
interests of the person concerned. The Commission failed to
demonstrate prejudice to the director’s legitimate interests.
At the very least, the Commission should grant access to parts of the
documents, with personal data redacted.
Arguments presented by the Commission
6. The Commission argued in essence that:
Commission staff members must conduct official trips in accordance
with its ‘internal rules on the implementation of the EU general budget’
and its ‘guide to missions’. The expenses are closely monitored. The
Commission proactively publishes information about Commissioners’
travel expenses, but no such rules exist for directors.
Greater transparency concerning the names of senior management, as
defined in its ‘Guidance Note’, does not imply that other personal data
should always be disclosed. In any case, those seeking access to
documents are mostly interested in the substance of the documents
rather than in the names and functions of the staff. Since the
complainant specifically requested access to the director’s personal
data, the Commission needed to examine whether it could transmit this
data, based on the conditions set out in the applicable data protection
rules.
The requested documents contain personal data. The data cannot be
disassociated from the person it concerns. As it is clear who the director
is, it would still be possible to identify him even if his name were
redacted.4
The general reference to ‘transparency’ does not, in itself, represent a
necessity for disclosing the documents, according to case law5, nor are
general references to the public interest considered a necessity. Even if
the complainant had demonstrated a necessity for the documents to be
disclosed, the director’s legitimate interests would be prejudiced by
disclosing his personal data.
4 Judgment of the General Court of 27 November 2018,
VG v Commission, joined cases T-314/16 and T-
435/16, paragraph 74, (hereafter: ‘
VG v Commission’ judgment).
5 Judgment of the General Court (Fifth Chamber, Extended Composition) of 25 September 2018,
Psara v
European Parliament, T-639/15, paragraph 74.
3
It is not possible to give meaningful access to even parts of the
documents at issue.
The Ombudsman's assessment
7. The Ombudsman accepts the Commission’s statement that it closely monitors
the expenses incurred by its staff members on official trips. However, this does
not, in itself, justify the Commission’s decision not to disclose the documents
requested. The documents inspected by the Ombudsman do not show
irregularities.
8. The name and the function of the director were stated in the request for
access to documents, so the provisions of the ‘Guidance Note’ on disclosing the
names of staff members do not appear to be relevant. The request concerned
other data that related to the director, concerning the official trip.
9. ‘Personal data’ is any information related to an identified or identifiable
person.6 It is a very broad concept and encompasses both information related to
an individual’s private life and professional life.7 The director was identified by
name in the request for documents. So information related to the director’s
travel, such as travel details and expenses, come within that concept. Moreover
anonymising the data would not alter that the director is readily identifiable.8
10. The applicable rules require a three-step analysis before granting public
access to personal data, the first step of which is to show the necessity of
disclosure.9 As regards the first step, while the Ombudsman recognises the
force of the complainant’s arguments, current case law does not appear to lend
support to the complainant’s view.10 The Ombudsman cannot take a different
view because a recital has changed in the applicable rules. It is for the Court to
rule on whether former case law should no longer apply for that reason.
11. Since the first step in the analysis is not fulfilled, it is not necessary to
advance further in the analysis. However, having inspected the documents at
issue, the Ombudsman considers that it is not apparent how disclosing the
information would harm the director’s legitimate interests.
12. Thus, the Ombudsman finds that the Commission’s refusal to provide
public access to the requested documents was consistent with the applicable
rules.
6 Article 3(1) of Regulation 2018/1725.
7
VG v Commission judgment, paragraph 64.
8
VG v Commission judgment, paragraph 74.
9 Article 9(1)(b) of Regulation 2018/1725 provides that first, the recipient needs to demonstrate the need
for the transfer of the personal data for a specific purpose in the public interest. Second, there must be no
reason to believe that such transfer might undermine the legitimate interests of the data subject. Third,
the controller needs to establish that it is proportionate to transmit the personal data for that specific
purpose, weighing up the various competing interests.
10
Psara v
European Parliament judgment, cited above, paragraphs 74 and 90.
4
13. It is not possible to give meaningful access to only parts of the documents.
14. Having said that, the Ombudsman notes that a higher degree of
transparency regarding expenses incurred by senior managers may increase
public trust in the EU institutions, thereby enhancing the legitimacy of the EU.
It is hard to see why citizens should not be allowed to see how public money is
spent on travel by senior staff members. It is also hard to see how disclosing
this information would impair the legitimate interests of the individuals in
question. The information is not particularly sensitive, at least not in general,
and refusing to disclose such information could lead to speculation about
misuse of public funds by the public.
15. The Ombudsman notes that the Commission already regularly publishes the
travel expenses of Commissioners.11 The Ombudsman also notes that some EU
agencies have voluntarily implemented a more transparent approach, by
disclosing details of travel and accommodation expenses incurred by their top
managers on official trips. This shows that the case law referred to above does
not preclude providing more transparency in this area.
16. In a recent decision, the Ombudsman suggested that OLAF should consider
taking a more transparent approach in relation to travel expenses.12 The same
applies in this case and the Ombudsman makes a suggestion to this end below.
Conclusion
Based on the inquiry, the Ombudsman closes this case with the following
conclusion:
There was no maladministration by the European Commission.
The complainant and the Commission will be informed of this decision
.
Suggestion for improvement
Greater transparency concerning travel expenses enhances public trust in the
EU institutions. For this reason, the Ombudsman suggests that the
11 Article 6(2) of the Commission Decision of 31 January 2018 on a Code of Conduct for the Members of
the Commission, available at:
https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:32018D0221(02). 12 Case 1061/2019/FP on the refusal by the European Anti-Fraud Office to give public access to
documents concerning travel expenses of identified staff members, available at:
https://www.ombudsman.europa.eu/en/decision/en/119572. In that case, OLAF replied that, since it is
under the administrative responsibility of the Commission, it considered it inappropriate to implement its
own, separate policy concerning public disclosure of the expenses of senior staff members. If, however,
the Commission were to decide to proactively publish these expenses in the future, it committed to follow
this approach.
5
Commission consider implementing a more transparent approach in relation
to travel expenses incurred by its senior managers.
Tina Nilsson
Head of the Case-handling Unit
Strasbourg, 26/03/2021
6
Document Outline