By Toby McIntosh
The European Investment Bank Complaints Mechanism has recommended that the EIB reconsider withholding key information about the terms of an agreement to license GEMs data to a private company.
The 2019 licensing agreement with ILX, a Dutch investment company, was unusual as the only instance in which the EIB granted a private company access to the Global Emerging Markets (GEMs) Risk Database. GEMs contains decades of detailed data on the risks of investment in developing world countries. The data is collected by two dozen multilateral development banks and development finance institutions, who use the data in their own decision-making and for published reports.
There have been calls for several years for more access to the GEMs data, coming from the G-20, the private sector and from non-governmental organizations. They argue that better data will increase investment to Emerging Market and Developing Economies (EMDEs).
The GEMs Consortium, made up of the contributing institutions, has begun issuing more detailed reports based on the data, though still not at the level of granularity sought by investors and others. (See EYE article of Oct. 24, 2024.) The Consortium governs GEMs policy, with the EIB as the administrator.
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Appealing the Denial of Information About ILX Deal
Eye on Global Transparency editor Toby McIntosh on April 13, 2023, requested access to the data license agreement with ILX pursuant to the EIB’s transparency policy.
In response, the EIB on June 7, 2023, provided most of the 27-page document, but redacted a critical paragraph.
A disclosed part of the document says ILX can use the GEMs data “to develop outputs for Licensee’s proposed investment strategy.” However, the rest of the sentence about how ILX could use GEMS was not disclosed by EIB (after consulting with ILX). Also blacked out in the copy of the agreement provided to EYE is a description of the “Approved Product.”
The EIB cited the commercial confidentiality provision in the EIB Transparency Policy. (See EYE article.)
On July 23, 2023, McIntosh appealed the partial denial of access, arguing that the harm caused to commercial interests in disclosure was not been sufficiently proven and that the EIB had not considered the public interest in disclosure.
Complaint Mechanism Supports Disclosure of License Terms
In response, 18 months later, the Complaints Mechanism issued a decision, dated Dec. 4, 2024, that questions the EIB’s reasons for not disclosing the parts of the agreement describing how ILX could use the data.
The Complaints Mechanism wrote that it “is not convinced – based on specific reasons put forward by the EIB during the course of this inquiry – of such foreseeable risk in the case of information pertaining to the use of licensed statistics and the approved product (pages 7 and 23 of the Data License Agreement, respectively).” (See Paragraph 2.3.6)
It continued, “From the EIB-CM’s perspective, the EIB has not met the burden of proof, i.e., establishing a foreseeable risk, in this respect.”
Based on the conclusion, the Complaints Mechanism urged a reassessment of these redactions, stating:
The EIB-CM recommends that the EIB reassess whether redactions pertaining to the use of licensed statistics and the approved product (para 2.3.6) foreseeably undermine the interest protected by the exception relied on. The EIB’s assessment outcome should be shared in correspondence with the complainant. In the event that said redactions do foreseeably undermine the interest protected by the exception relied on, detailed reasons explaining how the disclosure of said information could specifically and actually undermine the interests protected should be provided to the complainant (para 2.1.3).
The Complaints Mechanism said “that time plays a role in whether information remains commercially sensitive.” The decision noted that the agreement, now expired was signed more than five years ago, Nov. 11, 2019.
The Complaints Mechanism also supported non-disclosure for some parts of the agreement, saying that release of “interest rate and license fee information” could foreseeably undermine the commercial interests of the third party “at the time of the initial application.” Similarly, the Complaints Mechanism opposed said disclosure of specific banking information.
After accounting to duplications, the EIB made nine redactions in the disclosed 27-page agreement, four related to personal data and five related to commercial interests.
Some Contact Information Recommended for Disclosure
The Complaints Mechanism also recommended that licensor and licensee contact information should be disclosed.
“The EIB-CM does not consider that this information (name of licensor and licensee, their addresses and fax number) falls within the definition of personal data for purposes of the Regulation given that data protection rules do not apply to companies or any other legal entities,” according to the decision (para. 228.)
However, the names of six persons mentioned in the license agreement should not be disclosed, the Complaints Mechanism said.
The Complaints Mechanism reached out to those named, citing a 2010 decision by Court of Justice of the European Union (Case C-28/08 P, European Commission v The Bavarian Lager Co. Ltd., paragraph 59.), “which arrives at the conclusion that the Commission was right to verify whether the data subjects had given their consent to the disclosure of personal data concerning them,” according to the Complaints Mechanism.
“Of the six persons concerned, none provided their non-objection,” the decision reported.
The Complaints Mechanism nicked the EIB for its handling of the request, saying it had not been specific its use of exemptions.
See full text of decision here: (2024-12-16 LETTER FROM EIB-SG TO Mr. McIntosh – Complaint SG-A-2023-02 – Final Reply – Annex Conclusions Report)
Another Appeal Pending
Still pending with the Complaints Mechanism is a July 15, 2024, EYE appeal concerning the EIB”s total denial of a request for the minutes of a 2023 closed meeting of the GEMs General Assembly.
The Complaint Mechanism is “is a tool enabling the resolution of disputes if any member of the public feels that the European Investment Bank (EIB) might have done something wrong, i.e. if it has committed an act of maladministration.”
Past EYE Stories on GEMs
Development Banks Considering Transparency for GEMs Database (March 20, 2023)
GEMs Steering Committee Has ‘Proactive Agenda’ to Disclose Lending Risk Data (April 11, 2023)
Past EIB Deal Offers Insights into Value of Nonpublic Database on Lending Risks (June 23, 2023)
Disclosure of GEMs Database Still Likely, But When, What, and by Whom Unclear (Oct., 6, 2023)
Transparency Future for GEMs Database Remains Unclear; Meeting Upcoming, (Oct. 20, 2023)
GEMs Overseers Decide Against Moving Database; Still Promise Transparency (Jan. 18, 2024)
EIB Denies Access to Minutes of GEMS Consortium as Private Debate Continues (Jan. 29, 2024)
New GEMs Data Criticized for Lacking Granularity; But One Generality Praised (March 26, 2024)
GEMs Consortium Issues More Granular Data; Critics Seek More Transparency (Oct. 15, 2024)
Private Sector Observers Seek More Information From GEMs Database (Oct. 24, 2024)
