European Ombudsman
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1. In 2008, the complainant, a German national, complained to the European Commission's Directorate-General ("DG") Competition about a sale of land to a private company by the German city of Rottenburg. In the complainant's view, this sale entailed a state aid that was illegal under EU law. The state aid complaint was registered under reference CP 137/2008.
2. By letter of 22 February 2010, DG Competition informed the complainant that it did not intend to pursue the case since it had come to the conclusion that there was no unlawful state aid. DG Competition added that if the complainant was in possession of any further information that could be relevant in this context, he should submit it within 20 days.
3. On 3 March 2010, the complainant sent an e-mail to DG Competition in which he asked for access to the complete file concerning the investigation into the matter. He especially requested a list of all potential purchasers who, according to the Commission, had been interested in buying the land, as well as a copy of their written offers. The complainant stressed that the names of the relevant persons could be blanked out. He added that he also requested access to all files containing his name or containing references to his person.
4. DG Competition sent an acknowledgement of receipt on the same day. The Commission's Secretariat-General sent a further acknowledgement of receipt on the following day, stating that, in accordance with 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"), the complainant would receive a reply to his request for access to documents within 15 working days.
5. In its reply of 25 March 2010, DG Competition recalled that the complainant's request comprised (a) access to the complete file of the procedure, (b) in particular the list of all of the potential buyers of the land concerned, as well as copies of all written offers made by them; and (c) all files containing the complainant's name or referring to him. DG Competition explained that all the documents referred to under letter (c) were already in the complainant's possession. These documents had been sent to DG Competition by the complainant or vice versa.
6. DG Competition further stated that, after a thorough examination of the documents falling under (a) and (b) on the basis of Regulation 1049/2001, and taking into consideration the current state of the procedure, it had come to the conclusion that the said documents fell under the exceptions set out in Article 4(2), third indent (relating to the protection of the purpose of inspections, investigations and audits) and Article 4(3) (concerning the protection of the institution's decision-making process) of Regulation 1049/2001. To the extent that the relevant documents concerned an exchange with the German federal government, disclosure would seriously put the German authorities' willingness to cooperate into question and would therefore seriously undermine DG Competition's decision-making process. DG Competition added that many of the documents contained information that was discussed in non-public meetings of the council of the city of Rottenburg. These documents were of importance for the decision-making process and could therefore not be disclosed during an ongoing procedure.
7. DG Competition added that the exception set out in Article 4(2), first indent (concerning the protection of commercial interests) of Regulation 1949/2001 was also applicable. The German federal government had submitted documents containing confidential information stemming from third persons. These documents therefore fell under the protection of commercial interests of natural or legal persons. The file moreover contained documents which did not relate to the procedure but which were opened for every procedure for internal use of DG Competition. Such documents could equally not be disclosed, in particular under Article 4(3) of Regulation 1049/2001.
8. DG Competition therefore concluded that the complainant's request for access had to be rejected in so far as the documents falling under (a) and (b) were concerned.
9. In this context, the Commission recalled that, by letter of 22 February 2010, it had informed the complainant that there were no grounds for further inquiries into his complaint. However, on 9 March 2010, another complaint had been lodged which concerned the same questions that had been raised by the complainant. This new complaint was currently being examined by DG Competition.
10. As regards a possible overriding public interest in disclosure, DG Competition stated that the complainant did not put forward any arguments which would establish such an interest.
11. DG Competition concluded by stating that it had considered the possibility of partial access in accordance with Article 4(6) of Regulation 1049/2001. However, since all documents were covered by the relevant exceptions in their entirety, no such access could be granted.
12. On 1 April 2010, the complainant submitted a confirmatory application for access. He took the view that DG Competition's argument regarding confidentiality was unfounded since he had himself mentioned the possibility to blank out the names of the persons concerned on the relevant documents. The complainant further submitted that the argument that the documents requested related to ongoing procedures and that there was no legitimate interest in access after the decision had been taken could be used to reject any request for access to documents and therefore contradicted the principle of transparency. Moreover, considering that the land that had been sold used to be the property of the citizens of Rottenburg, there was an overriding public interest in disclosure on the part of the latter.
13. On 8 April 2010, the Commission's Secretariat-General acknowledged receipt of the confirmatory application for access and pointed out that, in accordance with Regulation1049/2001, the complainant would receive a reply within 15 working days. It subsequently informed the complainant that the deadline for dealing with this application had to be extended by another 15 working days.
14. On 26 May 2010, the Secretariat-General informed the complainant that the extended deadline had expired on 25 May 2010. However, the consultations with other Commission services had not yet been completed and the Secretariat-General was not yet able to take a definitive decision on the complainant's request. The Secretariat-General apologized for the delay and the inconvenience caused. It explained that the complainant had the right to complain to the Ombudsman or to bring an action before the EU courts.
15. On 16 June 2010, the complainant turned to the Ombudsman.
16. In his complaint, the complainant put forward the following allegation and claim:
Allegation
The Commission did not respect the deadline for handling his confirmatory application for access to documents and failed to grant him access to the relevant documents.
Claim
The Commission should deal with his confirmatory application forthwith and grant him access to the relevant documents.
17. On 19 July 2010, the Ombudsman asked the Commission for an opinion.
18. On 10 October 2010, the complainant informed the Ombudsman that, by letter of 18 August 2010, DG Competition had provided him with non-confidential versions of four letters that the German authorities had addressed to DG Competition on 30 July 2008, 25 September 2009, 30 December 2009 and 9 July 2010. A copy of these four letters and of the Commission's letter of 18 August 2010 was submitted to the Ombudsman. In his letter of 10 October 2010, the complainant argued that he had not received all the documents and all the information that he needed. He asked the Ombudsman to see to it that these documents and this information were provided to him. The complainant also stated that he objected to the closure of DG Competition's file concerning his state aid complaint.
19. In his reply of 26 October 2010, the Ombudsman reminded the complainant that his inquiry only concerned the handling of his confirmatory request of 1 April 2010 for access to documents.
20. The Commission submitted its opinion on the complaint on 3 (English original) and 15 November 2010 (German translation).
21. On 9 November 2010, DG Competition forwarded to the complainant a non-confidential enclosure which was mentioned in one of the four letters from the German authorities that had been disclosed to him on 18 August 2010. DG Competition stressed that all the other enclosures mentioned in these letters had been declared confidential by the German authorities.
22. On 10 November 2010, the complainant informed DG Competition that he objected to the said enclosures being considered confidential. On the same day, the complainant forwarded a copy of this reply to the Ombudsman, asking him to take action.
23. On 16 November 2010, the Ombudsman forwarded the Commission's opinion to the complainant for his observations, which he sent on 17 December 2010.
24. As already mentioned before, the present inquiry concerns the Commission's handling of the complainant's confirmatory request for access of 1 April 2010. It thus does not cover the issue as to whether the Commission has provided the complainant with certain information that the latter may have asked for, to the extent that the information requested is not contained in the documents to which he wished to be given access. Nor does the present inquiry concern the handling of the complainant's state aid complaint by the Commission. If the complainant wished the Ombudsman to consider these issues, he could submit a further complaint to that effect to the Ombudsman.
25. In his observations of 17 December 2010, the complainant explained that he and the other person who had complained to the Commission about the relevant sale of land by the city of Rottenburg wished to become a party in the respective other complainant's case. Given that these state aid complaints concerned DG Competition, any such request should obviously be submitted to the latter.
26. In its opinion, the Commission pointed out that its inquiry into state aid complaint CP 137/2008 was ongoing and that no final decision had yet been taken.
27. As regards the subject-matter of the present inquiry, i.e., the complainant's confirmatory application for access for documents, the Commission pointed out that it had been examined in the meantime. The final reply had been sent to the complainant on 8 September 1010.
28. The Commission acknowledged that the said confirmatory application was not handled within the time-limits prescribed by Regulation 1049/2001, and that for two reasons.
29. First, the identification of the documents concerned took more time than expected. It should be noted that the complainant's request for access was formulated in very broad terms. Most of the time that it took to handle this request was dedicated to verifying the accurateness and completeness of the list of documents which were part of the administrative file of the ongoing investigation.
30. Secondly, the Commission had to take into account the judgment of the Court of Justice of 29 June 2010 in Case C-139/07 P European Commission v Technische Glaswerke Ilmenau GmbH.[2] This decision was published at the time when the Secretariat-General was in the process of drafting the reply to the confirmatory application. Given that the said judgment was directly relevant to the complainant's case, the draft reply had to be adapted to it. Finally, a subsequent delay was due to the need to translate the decision into German.
31. The Commission underlined that its services had accomplished, in the present case, a much more detailed analysis than what it is expected to carry out under the said judgment. In this judgment, the Court of Justice held that the Commission was not obliged to analyse in detail the documents of the administrative file concerning an ongoing state aid investigation and that "for the purposes of interpreting the exception laid down in Article 4(2), third indent, of Regulation No 1049/2001, the General Court should, in the judgment under appeal, have taken account of the fact that interested parties other than the Member State concerned in the procedures for reviewing State aid do not have the right to consult the documents in the Commission’s administrative file, and, therefore, have acknowledged the existence of a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities".[3]
32. The Commission underlined that the list of documents annexed to its decision comprised more than a hundred documents of the investigation's file, divided in different categories so as to match the complainant's criteria. This showed that the Commission had devoted considerable time to the handling of this request in order to carry out a very careful and detailed analysis, which went beyond the requirements of the latest case-law, according to which a general presumption against disclosure of these documents relieves the institution of such a detailed analysis.
33. The Commission considered that these circumstances justified the extension of the time-limit to 30 working days. It regretted not to have proposed to the complainant, under Article 6(2) and 6(3) of Regulation 1049/2001, a deadline that would have been adapted to the circumstances and volume of his request. It also regretted not having informed the complainant of the impact of the above judgment for the analysis of his request and the extra time needed for this purpose.
34. The Commission apologized for exceeding the time-limits when handling the complainant's confirmatory application.
35. The Commission enclosed a copy of its decision of 8 September 2010.
36. In this decision, the Commission informed the complainant that it had prepared a list of the documents on its file, in which the documents had been classified as follows: (1) Correspondence between the complainant and DG Competition; (2) correspondence between the Commission and the German authorities; (3) Correspondence between DG Competition and the second complainant; (4) internal documents; (5) documents which are in the public domain; and (6) documents containing the list of potential buyers. As regards the latter category, the Commission explained that the complainant's request was in principle not covered by Regulation 1049/2001, since it was not formulated as a request for access to a concrete document but as a request for information. The Commission added, however, that it had identified several documents which contain the list of potential buyers and which were enumerated under point (6) of the list.
37. The Commission pointed out that the documents mentioned under point (1) of its list were already in the complainant's possession and were therefore considered to be outside his request for access. It added that the documents concerned would be examined in view of their public disclosure, if the said assumption proved to be incorrect.
38. The Commission stated that the documents mentioned under point (5) of its list were in the public domain and therefore fell outside the scope of the complainant's request.
39. As regards access to the documents mentioned under points (2), (3), (4) and (6) of its list, the Commission referred to Article 4(2), third indent of Regulation 1049/2001, according to which "[t]he institutions shall refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits".
40. The Commission pointed out that the undisclosed documents belonged to the administrative file and related to its investigative activity carried out with regard to the above-mentioned sale of land in Rottenburg. The current examination qualified as an investigative activity since its purpose was to ensure that Germany fulfilled its obligations under EU law. At the current state of the investigation it was not possible to anticipate the future steps that would have to be taken by the Commission in this matter. Contacts with Germany were ongoing and it could not be excluded that certain issues would have to be raised further with the Member State concerned. Pursuant to Article 108 of the Treaty on the Functioning of the European Union ("TFEU") and Article 5 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty[4], the Commission and the Member State concerned had to co-operate in order to allow the Commission to receive all the necessary information for the control of state aids. In this context, it was of the utmost importance to preserve a climate of mutual trust between the Commission and the Member State concerned. Public disclosure of the relevant documents at this stage would certainly undermine the purpose of the investigative procedure described above.
41. In its recent judgment in Case C-139/07 P, which concerned factual circumstances similar to those of the present case, the Court of Justice confirmed that the Commission had validly refused access to the documents of the corresponding administrative file on the basis of the exception set out at Article 4(2), third indent of Regulation 1049/2001.
42. In paragraphs 56-58 of its judgment, the Court of Justice noted that Regulation 659/1999, and, in particular, Article 20 thereof, do not lay down any right of access to documents in the Commission’s administrative file for interested parties in the context of the review procedure opened in accordance with (what is now) Article 108(2) of the TFEU. The Court of Justice held that this fact needed to be taken into account for the purposes of interpreting the exception laid down by Article 4(2), third indent, of Regulation 1049/2001.
43. In paragraph 58 of its judgment, the Court of Justice stated the following: "It follows from the above that the interested parties, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file. (...) If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question."
44. The Court of Justice further held, in paragraph 61 of its judgment, that there was "a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities".
45. In light of the above, the Commission concluded that all the undisclosed documents belonging to the administrative file of case CP 137/2008 were at present manifestly covered by the exception provided for in Article 4(2), third indent of Regulation 1049/2001 and could therefore not be disclosed.
46. The Commission further stated that it had considered the possibility of partial access in accordance with Article 4(6) of Regulation 1049/2001. However, all the documents concerned were covered by the relevant exceptions in their entirety and, therefore, no partial access could be granted either.
47. The Commission concluded by stating that it did not see any public interest within the meaning of Regulation 1049/2001, that is to say, an interest that was objective and general in nature and which is not indistinguishable from individual or private interests, that could outweigh the public interest in protecting the purpose of the relevant state aid investigation.
48. In his observations, the complainant submitted that the Commission's reasoning was unconvincing, since the 'second' procedure concerning the relevant sale of land was based on a complaint concerning the same facts. This complaint had not been registered separately, but was dealt with under reference CP 137/2008.
49. The complainant argued that the Commission's approach would lead to the grotesque result that neither of the two complainants in this case would be entitled to access to the file. He added that, in so far as commercial secrets were concerned, the price that had been paid for the land had long been publicly known.
50. The complainant therefore repeated his claim that he should be given access to the relevant documents.
51. The present complaint concerns two issues, i.e., (i) the alleged failure to respect the deadlines for dealing with the complainant's confirmatory application and (ii) the question whether the complainant ought to have been given access to the documents covered by this application.
52. As regards the procedural issue, the Commission accepted that it failed to comply with the time-limit foreseen by Regulation 1049/201 for dealing with confirmatory applications. However, it nevertheless put forward two reasons to explain why it had taken so long to deal with the complainant's confirmatory application, that is to say, the scope of this application and the impact of the Court of Justice's judgment in Case C-139/07 P.
53. It is true that the list of documents provided by the Commission covers 107 items and thus a considerable number of documents. It should however be noted that 32 of these documents fall under point (1) of the said list which concerns correspondence between the complainant and DG Competition. Another 25 documents are listed under point (5) of that list, which concerns documents in the public domain. Given that the Commission took the view that the documents listed under these two headings were outside the scope of the complainant's request for access, the Commission effectively only had to examine a total of 50 documents with a view to deciding whether access could be granted. The Ombudsman is therefore not convinced that the number of documents covered by the complainant's request for access was such that his confirmatory application could not be handled within the statutory time-limits. In any event, if the Commission considered that the confirmatory application concerned a "very large number of documents" within the meaning of Article 6(3) of Regulation 1049/2001, it should have contacted the complainant with a view to finding a fair solution.
54. The Commission submitted that most of the time that it took to handle the complainant's confirmatory application was dedicated to verifying the accurateness and completeness of the list of the documents which were part of the relevant file. This is not a convincing argument. If a file is properly kept, it should not be a very difficult and time-consuming task to draw up a list of the documents that it contains.
55. As regards the second of the arguments put forward by the Commission, the judgment of the Court of Justice in Case C-139/07 P is, as will be seen below, of eminent relevance indeed for the handling of requests for access to documents on files concerning state aid complaints. The Ombudsman therefore fully understands that the Commission needed to take this judgment into account when replying to the complainant's confirmatory application. However, when this judgment was rendered on 29 June 2010 more than one month had already passed since the expiry of the extended deadline for replying to the complainant's confirmatory application.
56. Neither of the two considerations referred to by the Commission therefore affect the conclusion that the Commission failed to deal with the complainant's confirmatory applications of 1 April 2010 within the time-limit foreseen by Regulation 1049/2001. This constitutes an instance of maladministration.
57. However, regard should be had to the fact that, in its opinion, the Commission apologised for this delay. In his observations, the complainant did not address the issue of the delay that had occurred. In these circumstances, the Ombudsman considers that there are no grounds for further inquiries concerning the procedural aspects of the present case.
58. As regards the substantive issue, i.e., the question whether the Commission's decision refusing access was correct, it should be noted that the Commission originally invoked Article 4(2), first indent, Article 4(2), third indent and Article 4(3) of Regulation 1049/2001. However, the Commission's decision on the complainant's confirmatory application is exclusively based on Article 4(2), third indent of Regulation 1049/2001. It is thus only this provision that needs to be examined here.
59. Before proceeding to this examination, it should be recalled that the Commission took the view that the documents listed under headings (1) and (5) of its list, that is to say, the correspondence between the complainant and DG Competition and documents which were in the public domain, were not covered by the complainant's confirmatory application. The complainant did not object to this interpretation of his confirmatory application. In these circumstances, the Ombudsman considers that there are no grounds for further inquiries concerning the issue of access to the above documents.
60. As regards the remainder of the documents, the Commission correctly observed that, in its judgment in Case C-139/07 P, the Court of Justice held that there is a "a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities".[5] The approach adopted by the Commission in the present case, which resulted in the rejection of the complainant's confirmatory application, is thus in conformity with EU law, as interpreted by the Court of Justice.
61. The Court of Justice also held that the said general presumption does not exclude the right of applicants "to demonstrate that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001."[6]
62. As regards the first of these possibilities, the Ombudsman considers it obvious that an applicant will hardly be in a position to make use of such a possibility unless he knows which documents are contained in the file to which he or she wishes to be given access. The Ombudsman is therefore pleased to note that the Commission provided the complainant with a list of the documents on its file, even though this list was only provided together with the reply to the complainant's confirmatory application. However, it should be noted that the Commission submitted that it had devoted considerable time to the handling of this application in order to carry out a very careful and detailed analysis, which went beyond the requirements of the latest case-law. The Ombudsman thus cannot exclude the possibility that the Commission intended to indicate that it was only by way of exception that it provided the complainant with a list of the documents on its file. However, and as mentioned above, where an institution invokes the presumption that disclosure of the documents on its file would undermine the protection of the interest set out at Article 4 (2), third indent of Regulation 1049/2001, an applicant will hardly ever be in a position to try and argue that this presumption does not cover a given document on the institution's file if he does not know the exact contents of that file. If the applicant is not at least provided with information on which documents are effectively on that file, the effectiveness of Regulation1049/2001 risks being called into question. The Ombudsman will therefore make a further remark concerning this issue.
63. In the present case, the complainant did not identify any specific documents, or parts of documents, to which the above presumption does not in his view apply and that should therefore be disclosed. Instead, he maintained his general request for access.
64. The Ombudsman considers, however, that he can and should ascertain whether an institution's reliance of the said presumption is correct even where a complainant does not submit precise and specific arguments to that effect. As a matter of fact, complainants cannot be expected to possess detailed knowledge of EU law and to raise all issues that might be relevant. After all, it was precisely with a view to assisting citizens in case of problems with the EU administration that the institution of the European Ombudsman was established.
65. In the present case, the evidence submitted by the Commission itself shows that it cannot be presumed that the disclosure of all of the documents on its file would undermine the protection of the interest set out at Article 4(2), third indent of Regulation 1049/2001. The information provided as regards the documents listed under numbers 9 and 12 under heading (2) of the Commission's list of documents, which covers correspondence between the Commission and the German authorities, makes it clear that these items are non-confidential versions of letters addressed to the Commission by the German authorities. It appears clear that these documents are identical to the non-confidential versions of the letters that the German authorities had addressed to DG Competition on 30 July 2008 and 25 September 2009, which were forwarded to the complainant under cover of DG Competition's letter of 18 August 2010. At least for these two documents, the above-mentioned presumption thus clearly cannot be considered to be applicable.
66. The same conclusion applies in so far as the non-confidential version of the letter addressed to the Commission by the German authorities on 30 December 2009 is concerned. This document was also disclosed to the complainant by DG Competition on 18 August 2010. Unfortunately, the list of documents provided by the Commission does not allow precisely to identity this document, given that there are three documents that could be relevant and that the mention 'Non confidential version', which appears with regard to documents numbers 9 and 12, is not used in the description of either of these three documents.
67. However, it should be recalled that the non-confidential versions of the three above-mentioned letters from the German authorities were disclosed to the complainant on 18 August 2010. Even though it would have been desirable for the decision of 8 September 2010 to address the issue of access to these specific documents, if only by reference to the preceding letter of 18 August 2010, this shortcoming does not indicate that the Commission's decision concerning the remainder of the documents was incorrect.[7]
68. As regards a possible overriding public interest in disclosure, the complainant did not make any specific comments in his observations on the Commission's opinion. In his confirmatory application, he argued that the land that had been sold used to be the property of the citizens of Rottenburg and that there was thus an overriding public interest in disclosure on the part of the latter.
69. The Ombudsman considers that this fairly general statement is not sufficient to establish the existence of a public interest in disclosure that could override the exception invoked by the Commission.
70. In view of the above, no maladministration can be found as regards the substance of the Commission's decision to reject the complainant's confirmatory application.
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:
There are no grounds for further inquiries concerning the procedural aspects of the present case. No maladministration can be found as regards the substance of the Commission's decision to reject the complainant's confirmatory application.
The complainant and the Commission will be informed of this decision.
The Ombudsman commends the Commission for having provided the complainant with a list of all the documents on the file to which the latter had requested access. He considers that such a list of documents should be provided in all future cases where the Commission intends to invoke the presumption that disclosure of the documents on its file would undermine the protection of the interest set out at Article 4(2), third indent of Regulation 1049/2001. The relevant list should be made available at the latest with the decision on the request for access, so as to enable the applicant to use it for the purpose of preparing a confirmatory application for access.
P. Nikiforos Diamandouros
Done in Strasbourg on 31 January 2011
[1] OJ 2001 L 145, p. 43.
[2] The judgment has not yet been published in the official reports but is available on the website of the Court of Justice (http://curia.europa.eu).
[3] Paragraph 61 of the judgment.
[4] OJ L 83, p. 1.
[5] Paragraph 61 of the judgment.
[6] Paragraph 62 of the judgment.
[7] On 18 August 2010, the Commission also disclosed the non-confidential version of a further letter from the German authorities, which is dated 9 July 2010. The fact that neither the original of this letter nor this non-confidential version is mentioned in the list of documents provided by the Commission is likely to be due to the fact that the Commission considered the complainant's request for access to refer to those documents that were on its file by the time when the complainant submitted his confirmatory application for access on 1 April 2010.
