European Ombudsman

Dear Mr T.,

On 17 May 2005, you made a complaint to the European Ombudsman against the European Commission concerning the latter's handling of your request for access to document SEC(95) 447.

On 26 May 2005, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 5 August 2005. I forwarded it to you on 29 August 2005 with an invitation to make observations, if you so wished, by 30 September 2005 at the latest. No observations were received from you by that date.

On 18 October 2005, I asked the Commission for further information concerning this case. The Commission sent its reply on 16 January 2006. I forwarded it to you on 18 January 2006 with an invitation to make observations, which you sent on 23 January 2006.

On 6 June 2006, I addressed a draft recommendation to the Commission. You were informed accordingly the same day.

The Commission had been asked to provide its detailed opinion on this draft recommendation by 15 September 2006. In the absence of any such reply, I addressed a reminder to the Commission on 10 October 2006.

On 18 October (English original) and 31 October 2006 (German translation), the Commission submitted its detailed opinion to me. I forwarded it to you for your observations on 19 October (English original) and 6 November 2006 (German translation). On 24 October 2006, you submitted observations.

On 28 November 2006, I informed the Commission that I considered it necessary to inspect the relevant document. This inspection was carried out on 26 January 2007. A copy of the report on this inspection was forwarded to the Commission on 5 February 2007. A further copy was sent to you the same day with an invitation to submit any observations you might have by 15 March 2007. No such observations were received from you.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

On 26 July 2004, the complainant, a journalist working for the Stern, a German weekly newspaper, asked the European Commission for access to a document bearing the reference number SEC(95) 447, which the latter's (then) Directorate-General ("DG") XV had prepared in 1995 with a view to possible infringement proceedings against Greece, in relation to the construction of a new airport in Spata.

On 10 September 2004, the Commission rejected this request on the basis of Article 4(3), second subparagraph, of 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(1) ("Regulation 1049/2001").

In his confirmatory application of 20 September 2004, the complainant queried this decision, pointing out that the document was nearly ten years old and that its disclosure could therefore hardly undermine the Commission's decision-making process. He also submitted that there was an overriding public interest in disclosure. In this context, the complainant stressed (i) that the Stern was the second-largest weekly newspaper in Germany and Europe and had a very good reputation on account of its critical and well-informed coverage of EU matters; (ii) that there was a substantial public interest in the provision of EU funds for the relevant project; (iii) that possible irregularities concerning this project had already been the subject of articles in major newspapers such as the Frankfurter Allgemeine Zeitung (30 March 1995) and the Sunday Telegraph (14 March 2004); and (iv) that several MEPs had addressed written questions to the Commission on the subject.

In its decision of 11 November 2004, the Commission maintained its position and informed the complainant that no partial access could be granted either.

In his complaint to the Ombudsman, the complainant reiterated the arguments he had already submitted to the Commission. He added that an additional reason for his belief that there was an overriding public interest in disclosure was provided by recent articles in the press, in particular the one published in the Sunday Telegraph on 24 April 2005, according to which the person who had recently invited the President of the Commission for a cruise owned a company that had participated in the project to construct a new airport in Spata. The complainant suggested that the real reason why the Commission did not wish to disclose the relevant document was that it contained a convincing case for opening infringement proceedings against Greece and that the Commission had declined to follow this advice. According to the complainant, it was thus not the preparatory work carried out by the Commission's civil servants that might be affected by the disclosure of the document but the decision of the Commission, which appeared to be based on weak reasons and had possibly been guided by political considerations.

THE INQUIRY

In its opinion, the Commission made the following comments:

The construction of the " New Athens International Airport at Spata" had been partly financed by the EU, the maximum amount of assistance having been fixed at EUR 250 million. After a tender procedure that had been launched in 1991 by the Greek state and renegotiated in 1994, the project had finally been awarded to a consortium of companies that concluded an agreement with the Greek state in July 1995. The Commission's services had considered whether or not to open infringement procedures against Greece as regards the modified call for tenders. At its meeting of 29 March 1995, the College of Commissioners had decided not to open infringement proceedings against Greece.

In July 2004, the complainant had asked for access to the preparatory documents of this meeting, that is to say an excerpt from the database (the so-called "fiche NIF") and a more detailed explanatory note drafted by DG XV for the same purpose. Both these documents were internal documents and bore the reference SEC(95) 447.

The complainant's application had been rejected on the following grounds:

The relevant document had been drawn up within the Commission specifically for the investigation of a complaint and in preparation of the Commission's decision. It contained findings, assessments and opinions of the Commission's services and reflected the debate between them. As had been stated by the Court of Justice in its judgment in Case C-191/95 Commission v Germany(2), these elements were essential for the collective deliberation by the College of Commissioners. Disclosing the preparatory documents for the decision of the College of Commissioners of 29 March 1995 would seriously undermine the exercise of the Commission's powers under Article 226 of the EC Treaty. According to this provision, the Commission has a discretionary power as to whether or not to initiate infringement proceedings against a Member State. The deliberations within the College of Commissioners that precede such a decision might therefore also comprise differing views.

Thus the Commission's services should be free to submit advice and opinions to their authorities. Their capacity to express their views would be curtailed if, when drafting documents such as the above-mentioned, they would have to take into account the possibility that their opinions and assessment could be disclosed to the public, even after the case had been closed. The protection of this 'space to think' was fundamental in safeguarding the Commission's decision-making process, which would be seriously undermined if the institution could no longer rely on the full and frank advice of its services.

The decision to deny access to the two documents identified by reference number SEC(95) 447 had been based on a careful examination of their content. In this context, the Commission referred to its guidelines of 28 February 2003 on public access to documents related to infringement proceedings, a copy of which it attached. According to these guidelines, documents relating to infringement proceedings are to be released once the case has been closed, since the need to protect the investigation no longer exists, unless another specific exception to the right of access prevents disclosure. According to the Commission, these exceptions were applied in a restrictive manner, on a case-by-case assessment. In the Commission's view, in this particular case disclosure of the requested documents would seriously affect the Commission's ability effectively to exercise its powers under Articles 226 and 228 of the EC Treaty. Consequently, the exception laid down in Article 4(3), second subparagraph, of Regulation 1049/2001 was applicable.

The fact that the decision had been taken ten years ago did not change the result of this assessment. Audits carried out by the Commission's services with regard to the construction of the Spata airport were still ongoing. Thus, the case was far from being closed and might have implications for future decision-making.

No partial access could be granted, since there were no non-sensitive parts of the relevant documents that could be disclosed.

Critical reporting about alleged defects in public procurement constituted a public interest. However, the complainant had not shown that this interest outweighed the need to safeguard the Commission's decision-making process. The article published on 24 April 2005 could not be taken into consideration, since it had been published after the decision challenged by the complainant.

The Commission therefore considered that its refusal to grant access was justified under the provisions of Regulation 1049/2001.

No observations were received from the complainant.

After careful consideration of the Commission's opinion, it appeared that further inquiries were necessary.

On 18 October 2005, the Ombudsman asked the Commission to provide further information as regards the "ongoing audits" and as to why they should stand in the way of disclosing the relevant document to the complainant. The Ombudsman noted that if the Commission were to consider that replying to this question would imply disclosing information that it regards as confidential, he would consider it necessary to inspect the documents containing this information.

The Ombudsman also asked the Commission to comment on the arguments on which the complainant had relied in order to support his view that there was an overriding public interest in disclosure. These arguments were (i) that the Stern was the second-largest weekly newspaper in Germany and Europe and had a very good reputation on account of its critical and well-informed coverage of EU internal matters; (ii) that there was a substantial public interest in the provision of EU funds for the relevant project; (iii) that possible irregularities concerning this project had already been the subject of articles in major newspapers such as the Frankfurter Allgemeine Zeitung (30 March 1995) and the Sunday Telegraph (14 March 2004); and (iv) that several MEPs had addressed written questions to the Commission on the subject.

In its reply, the Commission made the following comments:

The Commission's decision to refuse access to the relevant document had been based on Article 4(3), second subparagraph, of Regulation 1049/2001. Article 4(2), third indent (which relates to the protection of the purpose of inspections, investigations and audits) had not been invoked by the Commission. The reference to an ongoing audit had been introduced in the opinion on the complaint as a subsidiary argument which had not been relied on by the Commission when it adopted the contested decision.

The relevant audit had now been completed. It was closed by a financial correction decision of 1 September 2005. The audit, which had been launched in 2003, aimed at (a) establishing the construction costs of the airport, (b) examining whether they were reasonable and whether the construction of the airport had been completed in accordance with the Commission decision granting financial support, and (c) evaluating the real income of the airport in relation to the one that had been forecast. The financial correction decision had been challenged by Greece before the Court of First Instance (Case T-404/05).

There was also a case pending before the Court of First Instance in which a Commission decision refusing access to documents relating to the construction of Spata airport (Case T-380/04) was challenged. Although the documents concerned in that case were not identical to those at issue in the present complaint, they related to the same circumstances.

Having re-examined the requested document against this new situation, the Commission had come to the conclusion that the completion of the audit did not change its earlier assessment that disclosure would seriously undermine the decision-making process. Indeed, future decision-making on similar cases might seriously be affected by disclosure of the requested document, since it would make public the deliberations between the Commission's services and the advice given by them to the College of Commissioners. By disclosing the requested document, which reflected in particular the position of one of the Commission's services, the principle of collegiality would be adversely affected, as the decision to initiate or to close infringement proceedings was taken by the College of the Commissioners on the basis of all the information necessary for the said decision. Disclosure would thus hamper the capacity of the Commission's services to give frank and full advice and expose the Commission and its services to undue pressure when considering future cases where the Commission considers initiating infringement proceedings. It should be recalled that the Commission had discretionary power to take such decisions.

As regards the existence of an overriding public interest, the Ombudsman had found, in his decision on complaint 412/2003/GG, that this element had to be established by the person seeking access. The fact that the complainant worked for the Stern certainly demonstrated a public interest, but did not amount to an overriding public interest. The complainant had not substantiated how far "critical reporting" implied a public interest that went beyond the general public interest in access to documents.

The same held true as regards the submission that there was a substantial public interest in the provision of financial resources from the EU structural funds to the relevant project. The other points mentioned by the complainant, such as the newspaper article of 1995 and the parliamentary questions (neither of which had been substantiated), were supposed to demonstrate public interest in the sound administration of EU funds. However, it had to be shown that this interest outweighed the public interest in protecting the Commission's decision-making process.

In his observations, the complainant maintained his complaint. He pointed out that the Commission itself had noted that, in accordance with its own guidelines, documents concerning infringement proceedings could be released once the relevant case had been closed. Given that the infringement proceedings had already been closed in 1995, access could therefore be granted. The complainant noted that, in its opinion, the Commission had referred to "ongoing audits". He stressed, however, that these had now been terminated.

The complainant further argued that the public interest in disclosure was overriding also since there was reason to assume that the College of Commissioners had not followed the advice that it had been given. There was thus reason to suspect that the decision had been abusive or at least poorly reasoned.

The complainant argued that the Commission had not addressed the Ombudsman's request to inspect documents and asked the Ombudsman to insist on this request.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

On 6 June 2006, the Ombudsman addressed the following draft recommendation to the Commission(3):

The Commission should grant the complainant access to the document with the reference number SEC(95) 447.

This draft recommendation was based on the Ombudsman's view that the Commission had failed to provide a reasonable explanation for its refusal to grant access to the relevant document(4).

In its detailed opinion on the draft recommendation, the Commission made the following comments:

The relevant document was not a draft decision, but rather a briefing and background note summarising the contacts with the Greek authorities and outlining a possible course of action. It had been drafted in February 1995, well before the entry into force of Regulation 1049/2001. At that time, the right of public access to Commission documents was governed by Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents(5). Under these rules, the Commission could refuse access to a document in order to protect its interest in the confidentiality of its proceedings. The document was intended for internal use, as part of the deliberations in preparation to a decision with regard to the possible launching of infringement proceedings. The possibility that the document might be disclosed in the future, before reaching the 30-year limit where it would be automatically public, was never taken into consideration at the time when it was drafted. The language used in the document, the way in which the arguments were put forward and the frankness of the opinions expressed therein made it abundantly clear that it was intended for internal use only. This background should be kept in mind when assessing the possibility of disclosing the relevant document.

The Commission's practice with regard to infringement proceedings was to release the relevant documents after the case has been closed. The refusal to grant access in the present case was an exception to the Commission's current practice and was based solely on the sensitivity of the information contained in it. The Commission did not therefore share the Ombudsman's view that acceptance of its arguments would deprive the exception of Article 4(3), second subparagraph of Regulation 1049/2001 of its meaning.

The fact that the document was drafted eleven years ago did not mean that its disclosure would no longer be harmful. The construction and exploitation of the new Athens airport had led to controversy and continued to do so. The Commission had based its refusal to grant access in this particular case on the argument that disclosure of the requested document would jeopardise the capacity of its services to provide it with full and frank advice and would expose these services to undue pressure. This reason remained valid even after eleven years. On delicate and sensitive issues such as the Spata airport case, it was essential for the Commission to receive unfettered advice from its services and to keep the freedom of not following their recommendations when taking a decision. Disclosure of the document would reopen discussions on the Spata airport and cast doubts as regards the legality of the Commission's decision. The Commission's services would in the future be very reluctant to express their views freely, thus depriving the Commission of the opportunity to be fully and frankly informed of all aspects of a case and of the consequences of the different options that are available for a decision. It was in this respect that the judgment in case C-191/95 Commission v Germany was relevant.

It was correct that none of the present members of the Commission was in office at the time when the decision not to launch infringement proceedings was taken. However, the purpose of the relevant exception in Regulation 1049/2001 was not to protect individual members of the Commission but the collegial decision-making process.

On the basis of the above, the Commission concluded that the complainant's request for access could not be granted. However, in a spirit of good co-operation and mutual understanding, the Commission invited the Ombudsman to inspect the file and acquaint himself with the content of the document concerned.

In his observations, the complainant made the following comments:

It was difficult to understand why the Commission now submitted completely new arguments to support its position.

Regulation 1049/2001 did not mention that it only applied to documents produced after its coming into force. Since the Commission had implicitly referred to the fact that documents are now produced in knowledge of the fact that citizens might obtain access to them, the disclosure of an old document could hardly have a negative effect on the Commission's decision-making process.

The Commission had provided no legal reason whatsoever to establish the "sensitive" nature of the document.

On the contrary, the fact that the Commission now argued that there was a particularly high public interest in disclosure of the document and that this disclosure would reopen discussions on the Spata airport did not militate against disclosure but constituted a circumstance that made the refusal to grant access even less understandable. If - as the Commission argued - the document was of such an 'explosive' character and its disclosure was prone to call into doubt the "legality" of the Commission's decision not to open infringement proceedings, there could now no longer be any reasonable doubt that the interest in disclosure clearly outweighed any other interests.

Having examined the Commission's detailed opinion and the complainant's observations, the Ombudsman considered it necessary to inspect the relevant document. This inspection was carried out on 26 January 2007. A copy of the report on this inspection was forwarded to the Commission on 5 February 2007. A further copy was sent to the complainant the same day with an invitation to submit observations. No such observations were received from the complainant.

THE DECISION

1.1 The complainant, a German journalist, asked the European Commission for access to a document bearing the reference number SEC(95) 447, which the latter's (then) Directorate-General ("DG") XV had prepared in 1995 with a view to possible infringement proceedings against Greece, in relation to the construction of a new airport in Spata. This document consists of two parts, a so-called "fiche NIF" and an explanatory memorandum of DG XV(6). On 10 September 2004, the Commission rejected this request on the basis of Article 4(3), second subparagraph, of 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(7) ("Regulation 1049/2001").

In his confirmatory application, the complainant pointed out that the document was nearly ten years old and that its disclosure could therefore hardly undermine the Commission's decision-making process. He also submitted that there was an overriding public interest in disclosure. In this context, the complainant stressed (i) that the Stern, for which he worked, was the second-largest weekly newspaper in Germany and Europe and had a very good reputation on account of its critical and well-informed coverage of EU matters; (ii) that there was a substantial public interest in the provision of EU funds for the relevant project; (iii) that possible irregularities concerning this project had already been the subject of articles in major newspapers such as the Frankfurter Allgemeine Zeitung (30 March 1995) and the Sunday Telegraph (14 March 2004); and (iv) that several MEPs had addressed written questions to the Commission on the subject.

In its decision of 11 November 2004, the Commission maintained its position and informed the complainant that no partial access could be granted either.

1.2 In his complaint to the Ombudsman, the complainant alleged that the Commission had failed properly to deal with his request for access.

1.3 In its opinion, the Commission explained that the construction of the " New Athens International Airport at Spata" had been partly financed by the EU. After a tender procedure, which had been launched in 1991 and renegotiated in 1994, the project had finally been awarded to a consortium of companies that concluded an agreement with the Greek state in July 1995. The Commission's services had considered whether or not to open infringement procedures against Greece as regards the modified call for tenders. At its meeting of 29 March 1995, the College of Commissioners had decided not to open infringement proceedings against Greece.

The Commission noted that, in its decision on the confirmatory application for access, it had provided the following explanations: The relevant document contained findings, assessments and opinions of the Commission's services and reflected the debate between them. As had been stated by the Court of Justice in its judgment in Case C-191/95(8), these elements were essential for the collective deliberation by the College of Commissioners. Disclosing the preparatory documents for the decision of the College of 29 March 1995 would seriously undermine the exercise of the Commission's powers under Article 226 of the EC Treaty. According to this provision, the Commission has a discretionary power as to whether or not to initiate infringement proceedings against a Member State. The deliberations within the College of Commissioners that precede such a decision might therefore also comprise differing views. Thus the Commission's services should be free to submit advice and opinions to their authorities. Their capacity to express their views would be curtailed if, when drafting documents such as the above-mentioned, they would have to take into account the possibility that their opinions and assessment could be disclosed to the public, even after the case had been closed. The protection of this 'space to think' was fundamental in safeguarding the Commission's decision-making process, which would be seriously undermined if the institution could no longer rely on the full and frank advice of its services.

The Commission further referred to its guidelines of 28 February 2003 on public access to documents related to infringement proceedings, a copy of which it attached. According to these guidelines, documents relating to infringement proceedings are to be released once the case has been closed, since the need to protect the investigation no longer exists, unless another specific exception to the right of access prevents disclosure. According to the Commission, these exceptions were applied in a restrictive manner, on a case-by-case assessment. In the Commission's view, in this particular case disclosure of the requested document would seriously affect the Commission's ability effectively to exercise its powers under Articles 226 and 228 of the EC Treaty.

The Commission added that the fact that the decision had been taken ten years ago did not change the result of this assessment. According to the Commission, audits with regard to the construction of the Spata airport were still ongoing. Thus, the case was far from being closed and might have implications for future decision-making.

The Commission also considered that no overriding public interest in disclosure had been established.

1.4 On 18 October 2005 , the Ombudsman asked the Commission to provide further information as regards the "ongoing audits" and as to why they should stand in the way of disclosing the relevant document to the complainant. The Ombudsman also asked the Commission to comment on the specific arguments on which the complainant had relied in order to support his view that there was an overriding public interest in disclosure.

1.5 In its reply, the Commission clarified that its decision had been based on Article 4(3), second subparagraph, of Regulation 1049/2001 and not on Article 4(2), third indent (which relates to the protection of the purpose of inspections, investigations and audits). The Commission added that it had referred to an ongoing audit in the opinion on the complaint as a subsidiary argument, on which it had been relied when it had adopted the contested decision. It added that the relevant audit had been closed by a financial correction decision on 1 September 2005.

The Commission pointed out that there was a case pending before the Court of First Instance in which a Commission decision refusing access to documents relating to the construction of Spata airport was challenged (Case T-380/04). It noted that, although the documents concerned in that case were not identical to those at issue in the present complaint, they related to the same circumstances.

The Commission confirmed its view that the disclosure of the document concerned would seriously undermine its decision-making process, since it would make public the deliberations between the Commission's services and the advice given by them to the College of Commissioners. According to the Commission, disclosure of the requested document, which reflected in particular the position of one of its services, would adversely affect the principle of collegiality. Disclosure would thus hamper the capacity of the Commission's services to give frank and full advice and would expose the Commission and its services to undue pressure when considering future cases where the Commission considers initiating infringement proceedings. The Commission stressed that it had discretionary power to take such decisions.

As regards the existence of an overriding public interest, the Commission pointed out that the Ombudsman had found, in his decision on complaint 412/2003/GG, that this element had to be established by the person seeking access. According to the Commission, the presence of such an overriding public interest had not been substantiated by the complainant. The Commission also submitted that the complainant had not substantiated his reference to the newspaper article of 1995 and to the parliamentary questions.

1.6 I n his observations, the complainant maintained his complaint. He submitted that the public interest in disclosure was overriding also because there was reason to assume that the College of Commissioners had not followed the advice that it had been given. There was thus reason to suspect that the decision had been abusive or at least poorly reasoned.

1.7 On 6 June 2006, the Ombudsman addressed a draft recommendation to the Commission(9). In this draft recommendation, he proposed that the Commission should grant the complainant access to the relevant document. This draft recommendation was based on the Ombudsman's view that the Commission had failed to provide a valid explanation for its refusal to grant access. The Ombudsman mentioned that the interpretation suggested by the Commission appeared to deprive the exception of Article 4(3), second subparagraph of Regulation 1049/2001 of its meaning. He also noted that none of the present members of the Commission was in office at the time when the decision not to launch infringement proceedings was taken in 1995.

1.8 In its detailed opinion, the Commission insisted that no access could be granted. The Commission reiterated the arguments it had previously used and submitted some new ones. Its position can be summarised as follows:

1. The relevant document had been drafted in February 1995, well before the entry into force of Regulation 1049/2001. At that time, the right of public access to Commission documents was governed by Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents(10). Under these rules, the Commission could refuse access to a document in order to protect its interest in the confidentiality of its proceedings. The document was intended for internal use, and ought to be understood as forming part of the deliberations in preparation for a decision with regard to the possible launching of infringement proceedings. The possibility that the document might be disclosed in the future, before reaching the 30-year limit when it would be automatically made public, had never been taken into consideration at the time it was drafted. The language used in the document, the way in which the arguments were put forward and the frankness of the opinions expressed therein made it abundantly clear that it was intended for internal use only.
2. The Commission's practice with regard to infringement proceedings was to release the relevant documents after the case has been closed. The refusal to grant access in the present case was an exception to the Commission's current practice and was based solely on the sensitivity of the information contained in it. The Commission did not therefore share the Ombudsman's view that acceptance of its arguments would deprive the exception of Article 4(3), second subparagraph of Regulation 1049/2001 of its meaning.
3. The fact that the document had been drafted eleven years ago did not mean that its disclosure would no longer be harmful. The construction and exploitation of the new Athens airport had led to controversy and continued to do so. On delicate and sensitive issues such as the Spata airport case, it was essential for the Commission to receive unfettered advice from its services and to keep the freedom of not following their recommendations when taking a decision. Disclosure of the document would reopen discussions on the Spata airport and cast doubts as regards the legality of the Commission's decision. The Commission's services would in the future be very reluctant to express their views freely, thus depriving the Commission of the opportunity to be fully and frankly informed of all aspects of a case and of the consequences of the different options that are available for a decision.
4. It was correct that none of the present members of the Commission was in office at the time when the decision not to launch infringement proceedings was taken. However, the purpose of the relevant exception in Regulation 1049/2001 was not to protect individual members of the Commission but the collegial decision-making process.

1.9 In his observations, the complainant submitted that Regulation 1049/2001 did not only apply to documents produced after its coming into force. He further argued that since the Commission had implicitly referred to the fact that documents are now produced in knowledge of the fact that citizens might obtain access to them, the disclosure of an old document could hardly have a negative effect on the Commission's decision-making process. The complainant also took the view that the Commission had provided no legal reason whatsoever to establish the "sensitive" nature of the relevant document. He further argued that the Commission's own comments pleaded in favour of granting access. The complainant submitted that if - as the Commission argued - the document was of such an 'explosive' character and its disclosure was prone to call into doubt the "legality" of the Commission's decision not to open infringement proceedings, there could now no longer be any reasonable doubt that the interest in disclosure clearly outweighed any other interests.

1.10 In its detailed opinion, the Commission had suggested that the Ombudsman could inspect the relevant document. Given that the "sensitive" nature of the information could hardly be assessed otherwise, the Ombudsman accepted this offer. The inspection of the document took place on 26 January 2007.

1.11 Before dealing with the substance of the case, the Ombudsman considers it appropriate to address two issues that were raised by the Commission in the course of the inquiry.

1.12 In its opinion, the Commission mentioned "ongoing audits" when referring to the risk that disclosure of the relevant document would, in its view, entail for its decision-making process. Given that the relevance of these audit proceedings for the present case was not immediately obvious, the Ombudsman asked the Commission for further explanations. It emerged from the Commission's reply that the Commission did not intend to submit a further ground for rejecting the complainant's request for access to the relevant document. It should in any event be noted that the present decision is directed at examining whether there was maladministration as regards the Commission's decision of 11 November 2004 to reject the complainant's confirmatory application for access. Given that this decision was exclusively based on Article 4(3), second subparagraph, of Regulation 1049/2001, only this exception is relevant for present purposes.

1.13 In its reply to the Ombudsman's request for further information, the Commission referred to a case pending before the Court of First Instance(11). It emerges from the summary of the case published in the Official Journal that this application concerns the Commission's refusal to grant access to "the main contract, the sub-contracts, the costs of the construction items, the invoices and the final report relating to the construction of the Spata airport". It is thus clear that this application does not concern the facts that have been submitted to the Ombudsman in the present complaint. The case pending before the Court of First Instance consequently does not affect the Ombudsman's handling of the present complaint.

1.14 Principles of good administration require that requests for access to documents made under Regulation 1049/2001 be dealt with properly. This means that such requests should be granted, unless there are valid reasons for not doing so, and that any such reasons must clearly be explained to the applicant.

1.15 As regards the present case, the Ombudsman notes that the Commission's refusal to grant the complainant access to the relevant document was exclusively based on Article 4(3), second subparagraph, of Regulation 1049/2001. According to this provision, "[a]ccess to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure." In the Ombudsman's view, it is thus clear that the institution needs to prove that the disclosure has or is most likely to have the negative effect mentioned in this provision.

1.16 In its detailed opinion on the Ombudsman's draft recommendation, the Commission pointed out that the relevant document had been drafted before the coming into force of Regulation 1049/2001. Although the comments the Commission made in this context were clearly intended to illustrate the background of the case, the Ombudsman considers it useful to stress that in the absence of any provision to the contrary, Regulation 1049/2001 obviously also applies to documents that were produced before the coming into force of this regulation. Besides, the Commission clearly does not dispute this fact, given that it dealt with the complainant's request for access on the basis of Regulation 1049/2001.

1.17 The Ombudsman notes that, in its decision on the confirmatory application for access and in its opinion on the complaint, the Commission submitted a general argument to the effect that disclosure of the relevant document would seriously undermine its decision-making process. It appeared from this opinion that the Commission assumed that disclosure of such documents would jeopardise the capacity of its services to give frank and full advice to the College of Commissioners and would also expose the Commission and its services to undue pressure when considering future cases where the Commission considers initiating infringement proceedings. However, if such a general argument were to be accepted, Article 4(3), second subparagraph, of Regulation 1049/2001 would be deprived of its meaning. This provision clearly envisages that the disclosure of documents such as the one at issue in the present case is not only possible, but also obligatory unless the Commission proves that doing so would "seriously undermine" its decision-making process. The Ombudsman considers that a general reference to the perceived risks of disclosure for the internal decision-making process which is not backed up by any reasonable reference to the individual facts of the case would therefore not be sufficient to allow the conclusion that the exception laid down in Article 4(3), second subparagraph, of Regulation 1049/2001 applies.

1.18 The Ombudsman notes, however, that the comments made by the Commission in its detailed opinion make it clear that the Commission does not wish to rely on such a general argument. As a matter of fact, the Commission has underlined that its general practice with regard to infringement proceedings is to release the relevant documents after the case has been closed. The Commission stressed that the present case constitutes an exception and that its decision to refuse access to the relevant document was based solely on the sensitivity of the information contained in it.

1.19 The Ombudsman appreciates this clarification. He notes, however, that this specific reason was not mentioned in the Commission's decision rejecting the complainant's confirmatory application. This decision focuses on what the Commission called the need to protect the 'space to think', that is to say, the advice and opinions provided to the Commission by its services. It is true that this decision states that a "careful examination" of the contents of the relevant document has been carried out. However, the decision does not contain any reference to the specific contents of this document. In these circumstances, the Ombudsman considers that the complainant's criticism that, in its detailed opinion, the Commission was presenting new arguments to support its position is justified. Given that the Commission's decision on the complainant's confirmatory application did not thus adequately set out the reasons for refusing to disclose the relevant document, the Ombudsman considers that the Commission has failed to handle the complainant's request properly.

It appears useful to add that it was only in its detailed opinion on the draft recommendation that the Commission informed the Ombudsman of the specific reason for its refusal to grant the complainant access to the relevant document. The Commission's failure to mention this reason in its decision on the confirmatory application for access could therefore obviously not be discussed in the draft recommendation itself.

1.20 As regards the substantive aspects of the case, it needs to be examined whether the information contained in the relevant document is indeed so sensitive that disclosure of the latter would seriously affect the Commission's decision-making process.

1.21 In the Ombudsman's view, it appears useful to stress (and, to some extent, to repeat) that this information and, consequently, the relevant document cannot be considered to be "sensitive" merely on account of the fact that it contains advice provided to the Commission by its services. The Commission does not appear to dispute this, given that it has noted that its general practice with regard to infringement proceedings is to release the relevant documents after the case has been closed. Unless one is to presume that the Commission's services no longer provide advice to the Commission in infringement cases, this statement would appear to suggest that such advice can normally be disclosed after the case has been closed.

1.22 It is true that the relevant document was drafted for internal use and that its authors, as the Commission explained with reference to the rules in force at the time, probably did not reckon with the possibility that it could be disclosed in response to a request for access made by a member of the public. However, the Ombudsman fails to see how the disclosure of the relevant document, which was drafted in 1995, could have dissuaded the Commission's services, at the time of the decision on the confirmatory application in November 2004, from providing the Commission with the advice the latter needs and would thus seriously undermine the institution's decision-making process. At that time, the Commission's services had long become aware of the fact that "opinions for internal use as part of deliberations and preliminary consultations" are accessible to the public pursuant to Regulation 1049/2001, unless it is established that such disclosure would seriously undermine the institution's decision-making process, and that the last-mentioned exception does not apply if there is an overriding public interest in disclosure. In its detailed opinion, the Commission has implicitly referred to the fact that documents are now produced in knowledge of the fact that citizens might obtain access to them. As the complainant has correctly observed, the disclosure of a document produced before the coming into force of Regulation 1049/2001 could thus as such hardly have a negative effect on the Commission's (future) decision-making process.

1.23 The Ombudsman accepts, of course, that the contents of a specific document may nevertheless be so sensitive that its disclosure could seriously undermine the institution's decision-making process. It therefore remains to be examined whether this is the case as regards the relevant document. It appears useful to add that this analysis must primarily be based on the explanations provided by the Commission. Although the Ombudsman has inspected the document, regard must be had to the fact that Article 4(1) of the Ombudsman's Statute stipulates that the Ombudsman and his staff "shall be required not to divulge information or documents which they obtain in the course of their inquiries". The Ombudsman is therefore obviously prevented from quoting from documents that the institution considers to be confidential or from referring to them in a way that would disclose their contents.

1.24 The Ombudsman notes that, in its detailed opinion, the Commission has argued that disclosure of the relevant document would reopen discussions on the Spata airport and cast doubts as regards the legality of the Commission's decision. This argument contains two aspects.

1.25 As regards the first aspect, it should be noted that the relevant document concerns the issue of a possible infringement of EU rules on public tenders concerning the Spata airport. It is thus only this aspect that could be concerned by the disclosure of the relevant document. However, even on the assumption that the disclosure were to have the effect of reopening discussions on this subject, the Ombudsman is not convinced how this would seriously undermine the Commission's decision-making process. Regard needs to be had to the fact that the relevant document was nearly ten years old when the decision on the confirmatory application was made. It should be noted that the Commission has itself referred to the fact that the document will automatically become public after 30 years.

1.26 The situation would of course be different if the decision adopted by the Commission in 1995 was not final. However, there is nothing to suggest that this is the case. It is true that, in its opinion on the complaint, the Commission referred to "ongoing audits" concerning the Spata airport. However, in its reply to the Ombudsman's request for further information, the Commission explained that the audit related to its decision of 23 May 1996 granting financial support from the Cohesion Fund to the airport project. According to the Commission, the audit aimed at establishing the construction costs of the airport and at examining whether these costs were reasonable and whether the construction had been completed as foreseen in the decision of 23 May 1996. However, in its opinion on the present complaint, the Commission pointed out that the document to which the complainant seeks access (and thus the decision the Commission adopted in 1995) "deals exclusively with the possible infringement of European rules on public tenders with regard to the construction of the new Athens airport at Spata". The audit did thus not concern the issue on which the Commission decided in 1995 and which was the subject of the document to which the complainant seeks access.

1.27 As regards the second aspect to which the Commission referred, it should be noted that the Commission itself has stressed throughout the present inquiry that it has discretion as to whether to open infringement proceedings. However, the relevant document contains only the advice given by the Commission's services to the Commission. It obviously does not record the reasons that led the Commission to its decision not to open infringement proceedings against Greece. It is therefore not clear how the disclosure of the relevant document could cast doubts as regards the legality of the Commission's decision. In any event, and on the assumption that such doubts might arise, it should be recalled that what needs to be established is that disclosure of the relevant document seriously undermines the Commission's decision-making process. The Ombudsman considers that the Commission has not established that this would be the consequence of disclosing the document concerned.

1.28 The Ombudsman therefore considers that the Commission has not established that the disclosure of the relevant document would seriously undermine its decision-making process.

1.29 In its decision on the complainant's confirmatory application, the Commission stated that no partial access could be granted. This statement was confirmed in the Commission's opinion on the complaint. It is true that the complainant has not expressly alleged that the Commission failed to grant at least partial access. However, where the allegation made is that that a request for access to a document has not been dealt with properly, the institution obviously has to consider whether at least partial access can be granted. Even if one were to assume that the Commission was entitled to rely on Article 4(3), second subparagraph, of Regulation 1049/2001 in order to refuse to give access to the document as a whole, the Ombudsman is not convinced, after having examined the document concerned, that no partial access could be granted.

1.30 In view of the conclusion at which the Ombudsman has arrived, it is no longer necessary to examine whether there was also a public interest in disclosure that could have overridden the interest of protecting the Commission's decision-making process.

1.31 On the basis of these considerations, the Ombudsman arrives at the conclusion that the Commission has failed properly to deal with the complainant's request for access to the relevant document. This is an instance of maladministration.

2.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

Principles of good administration require that requests for access to documents made under Regulation 1049/2001 be dealt with properly. This means that such requests should be granted, unless there are valid reasons for not doing so, and that any such reasons must clearly be explained to the applicant.

In its decision on the complainant's confirmatory application for access, the Commission submitted a general argument to the effect that disclosure of the relevant document would seriously undermine its decision-making process. It was only in its detailed opinion on the draft recommendation made by the Ombudsman that the Commission explained that its decision to refuse access to the relevant document was based solely on the sensitivity of the information contained in it. However, this specific reason was not mentioned in the Commission's decision rejecting the complainant's confirmatory application. Given that the Commission's decision on the complainant's confirmatory application thus did not adequately set out the reasons for refusing to disclose the relevant document, the Ombudsman considers that the Commission has failed to handle the complainant's request properly.

The Ombudsman furthermore considers that the Commission has not established that the disclosure of the relevant document would seriously undermine its decision-making process.

On the basis of these considerations, the Ombudsman arrives at the conclusion that the Commission has failed properly to deal with the complainant's request for access to the relevant document. This is an instance of maladministration.

2.2 Article 3(7) of the Statute of the European Ombudsman provides that after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, the Ombudsman shall send a report to the European Parliament and to the institution or body concerned.

2.3 In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament was of inestimable value for his work. He added that special reports should therefore not be presented too frequently, but only in relation to important matters where the Parliament was able to take action in order to assist the Ombudsman(12). The Annual Report for 1998 was submitted to and approved by the European Parliament.

2.4 As mentioned above, the present case concerns a request for access to a specific document that was drafted in 1995. Important though this issue may be for the complainant, the Ombudsman takes the view that the likely consequences of the maladministration identified in the present case are not of a sufficiently serious nature so as to justify the submission of a special report to the European Parliament.

2.5 The Ombudsman will therefore send a copy of this decision to the Commission and include a short summary in the annual report for 2007 that will be submitted to the European Parliament. The Ombudsman thus closes the case.

2.6 The President of the European Commission will also be informed of this decision.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

(1) OJ 2001 L 145, p. 43.

(2) Case C-191/95 Commission v Germany [1998] ECR I-5449.

(3) The draft recommendation is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(4) Details are set out in the draft recommendation itself which is available on the Ombudsman's website.

(5) OJ 1994 L 46, p. 58.

(6) Although the document to which access was requested thus in effect comprises two components, it appears appropriate to use the singular "document" in this decision.

(7) OJ 2001 L 145, p. 43.

(8) Case C-191/95 Commission v Germany [1998] ECR I-5449.

(9) The draft recommendation is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(10) OJ 1994 L 46, p. 58.

(11) Case T-380/04 Terezakis v Commission (cf. the summary published in OJ 2004 C 300, p. 46).

(12) Annual Report for 1998, pages 27-28.