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Handling of complainant's request for access to documents

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  • Case: 1161/2010/BEH
    Opened on 22 Jun 2010 - Draft recommendation on 19 Dec 2011 - Decision on 03 Aug 2012
  • Institution(s) concerned: European Commission
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Requests for public access to documents [Article 23 ECGAB]
  • Subject matter(s): Dealing with requests for information and access to documents (Transparency)
A pile of documents marked "top secret"
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Summary of the decision on complaint 1161/2010/BEH (confidential) against the European Commission

The complainant is a German Ph.D. student. In 2009, he turned to the European Commission and, on the basis of Regulation 1049/2001, requested access to certain documents relating to a number of infringement cases then pending before the Court of Justice. These cases related to certain customs issues regarding imports of armaments and dual-use goods. The complainant's request, in essence, covered the correspondence between the Commission and the Member States concerned. The Commission refused to grant access to the documents requested. After the Court of Justice had handed down the judgments in the aforesaid cases in December 2009, the complainant submitted a fresh request for access. Again the Commission refused to grant access and the complainant submitted a confirmatory application. The Commission first extended the deadline for dealing with that application and later informed the complainant that it had been unable to conclude its internal consultations.

In his complaint to the Ombudsman, the complainant alleged that the Commission failed to process his confirmatory application for access to the aforesaid documents within the time-periods foreseen in Regulation 1049/2001. He also alleged that its decision not to grant access is not in conformity with the law. He claimed that the Commission should, taking into account the arguments raised in his confirmatory application for access, deal rapidly with his confirmatory application and grant access to the documents concerned.

In its opinion, the Commission pointed, among other things, to the great number of documents involved and to various changes in the scope of the complainant's requests which accounted for the delay in taking a decision. As to substance, the Commission underlined the highly sensitive nature of the infringement cases at issue. Moreover, it submitted that the fact that follow-up negotiations with a number of Member States subsequent to the Court's judgments were ongoing would prevent it from disclosing the documents requested.

Following an inspection of the Commission's file by his services, the Ombudsman made a draft recommendation to the Commission. Considering that it failed to deal with the complainant's confirmatory application within any reasonable time and did not provide a satisfactory explanation for its refusal to grant access, the Ombudsman called upon the Commission to deal rapidly with the complainant's confirmatory application by granting access to the documents concerned.

The Commission accepted the Ombudsman's draft recommendation and fully disclosed the documents requested by the complainant. While the Ombudsman expressed concern about the length of time the Commission took to decide on the complainant's confirmatory application, he was pleased to note that the Commission itself acknowledged that this delay was indeed unjustifiable and applauded its constructive approach following his draft recommendation.