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Access to draft technical regulations communicated by Member States under the Directive on Technical Barriers to Trade (TBT)

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  • Case: 1972/2009/ANA
    Opened on 07 Sep 2009 - Draft recommendation on 24 Jan 2012 - Decision on 11 Dec 2012
  • Institution(s) concerned: European Commission
  • Field(s) of law: Right of establishment and freedom to provide services
  • 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)
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Copyright: Stocklib.com

Summary of the decision on complaint 1972/2009/ANA against the European Commission

The TBT Directive requires Member States to communicate draft technical regulations to the European Commission. The complainant is a Greek internet services company that complained about the Commission's refusal to give access to a revised draft technical regulation on recreational games which Greece communicated to it. The European Ombudsman carried out an inquiry into the complainant's allegations that the Commission infringed the procedural and substantive rules of Regulation 1049/2001 on public access to documents and the claim that the Commission should grant access to the requested document.

As regards the procedural allegation, the Ombudsman made a draft recommendation that the Commission should acknowledge the unjustifiable delay that occurred in the handling of the complainant's confirmatory application and provide an undertaking that such delays will not occur in future. The Commission accepted the Ombudsman's draft recommendation.

Regarding the substantive allegation and the related claim, the Commission defended its refusal to give access on the ground that it had to protect the dialogue it had entered into with the Greek authorities in order to bring into conformity with EU law the Greek legislation on recreational games, which the Court of Justice had found to infringe that law.

In his preliminary assessment, the Ombudsman found that, because the case at hand concerned closed infringement proceedings, the Commission's reliance on the relevant exception in Regulation 1049/2001 in the context of the notification procedure under the TBT Directive was not convincing. The Ombudsman proposed, as a friendly solution, that the Commission could consider granting access to the revised draft technical regulation.

The Commission subsequently granted access to the document and thus settled the complainant's claim, but disagreed with the Ombudsman's reasoning. The Ombudsman therefore made a draft recommendation that, in principle, the Commission should give public access to revised draft technical regulations communicated under the TBT Directive, unless a MemberState expressly asks for confidentiality and supports such a request with reasons that would be capable of rebutting the presumption of accessibility.

The Commission did not accept the Ombudsman's draft recommendation. Considering, however, that the Commission published both the original draft technical regulation communicated by Greece and the latest draft, the Ombudsman found that the Commission's conduct does not constitute a general practice. He therefore closed the case with a critical remark.

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