Ombudsmanul European

Strasbourg, 3-10-2011

Visit to the European Environment Agency
OI/11/2011/PB

To the attention of Mr Søren Brostrup Nielsen and Ms Marie Henze

Dear Ms McGlade,

I write with regard to my visit at the EEA on 20 October 2011, which you kindly accepted in your letter of 27 July (reference 20906). I now write to inform you of additional formalities relating to this visit, as well as the themes that I would like to discuss.

I understand that your contact person for this visit is Mr Søren Brostrup Nielsen, Head of Budget, Finance, Resources Group. I confirm that my case handler in charge of the visit remains Mr Peter Bonnor, Head of Legal Unit B and Head of Registry.

In addition to myself and Mr Bonnor, João Sant'Anna, Director, will be present at the visit. The visit will take place from 14:30 to 16:30. I mentioned in my letter of 22 July 2011 that such visits are formally carried out on the basis of my competence to conduct inquiries on my own initiative. The correspondence relating to this visit therefore now carries a registration reference for such own-initiative inquiries (OI/11/2011/PB). I would be grateful if the EEA could quote this reference number in its own future correspondence too.

I would also like to inform you that my preparatory letters for this visit; that is, the first letter of 22 July 2011 and the present letter, will be published on the European Ombudsman's website on the following page:

http://www.ombudsman.europa.eu/activities/visits.faces

If I decide to make suggestions to the EEA following my visit, the communication containing such suggestions will also be published on that page, as will the EEA's response, any further correspondence, and my final written conclusions.

I mentioned in my letter of 22 July 2011 that my office has seen a remarkably low level of complaint activity involving the EEA. Please find attached an annex with more detailed information about the EEA related complaints and inquiries.

With regard to the programme of my visit on 20 October 2011, I would like to discuss the following themes:

• The EEA's initial contacts with the public
• Transparency, dialogue and accountability
• Recruitment
• Tenders and contracts
• Conflicts of interest

The specific issues that I would like to look at under each theme are the following.

1. Initial contacts with the public

One of the Ombudsman's fundamental tasks is to ensure that the EU administration is open, service-minded and efficient in handling contacts with citizens. The relevant basic principles are laid down in the European Code of Good Administrative Behaviour which the EEA adopted in 2004. The issue remains significant in our daily work, suggesting that the EU administration still faces some challenge in this area. When appropriate, the European Ombudsman tries to find a rapid solution to complaints that concern grievances about a citizen's first contacts with the administration. Usually this involves my services contacting the relevant person by telephone.

I am aware that the EEA has established an 'inquiry service' intended to ensure achievement of, among others, the principles laid down in the above-mentioned Code. I would be grateful for a presentation of this system. The presentation could include information about how the system helps the EEA's management to monitor the achievement of the objectives.

1. Transparency, dialogue and accountability

The European Ombudsman also has a particular concern to promote the transparency and increase the accountability of the EU administration. This is for instance reflected the EU's legislation on public access to documents, which expressly mentions the Ombudsman as a review body. It is also reflected in the Ombudsman's extensive powers of investigation, which enable us to thoroughly clarify the facts and issues raised in our inquiries.

I would be grateful to know more about the following issues:

(1) How does the EEA deal with requests for public access to documents in practice? What are the EEA's internal rules and guidelines for handling such requests? Please provide examples, such as the main correspondence in its handling of the last three requests for public access to documents dealt with under Regulation 1049/2001. (The substance of the EEA's decision in these examples will not be examined, as this is not the purpose of this visit.)

(2) The EEA handles a vast amount of information and data. Regulation 1049/2001 strictly speaking only applies to 'documents'. What is the EEA's approach to request for access to information as opposed to, or compared with, documents in the sense of Regulation 1049/2001?

(3) Does the EEA produce an annual report (internal or external) on its handling of public access to documents?

(4) Does the EEA operate, or intend to operate, a public register in the sense of Article 11 of Regulation 1049/2001?

(5) The European Ombudsman is increasingly called upon to examine the Commission's practices in the field of public consultations organised by the European Commission. I have noticed that the EEA appears to have an agenda of increasing the dialogue with citizens in addition to its current activities of gathering, processing and providing data[1]. I would be grateful to know more about this initiative, and about how the EEA implements this agenda in practice.

1. Selection and recruitment

With regard to the substance of selection and recruitment decisions, the Ombudsman takes an approach similar to that of the EU Courts. This means, among others, that the Ombudsman recognises the very wide discretionary powers of the Administration in selecting its staff.

With regard to the procedural aspects of selection and recruitment, the Ombudsman has very actively worked to increase the transparency of EU recruitment. This has for instance led to transparency regarding the names of members of selection boards, and more elaborate evaluation sheets that provide candidates a better insight into how they were assessed.

The EEA's recruitment notices give indication of an informative approach to job candidates, for instance through the online publication of the names of selection board members. I would, in addition, be grateful to know more about the following issues:

(1) To what extent does the EEA provide job candidates access to the assessments of their applications?

(2) To what extent does the EEA seek quicker and less formal means to resolve disputes about selection and recruitment decisions than the procedure foreseen in Article 90 of the Staff Regulations?

(3) Does the EEA systematically inform candidates that they may complain to the Ombudsman (Article 19 of the above-mentioned Code)?

1. Tenders and contracts

At the review level, disputes in relation to tender decisions and contractual relationships are most commonly dealt with by the courts. However, a significant proportion of the Ombudsman's cases has from early on concerned these areas. In relation to tenders, the Ombudsman draws inspiration from the Court's approach, which is to recognise the broad discretionary powers of the administration in assessing the substantive tender proposals, but carefully checking whether the administration gave valid and adequate reasons and whether the procedures and information rights have been respected. In relation to contractual disputes, the Ombudsman does not as such assess whether there is a breach of contract. We do, however, thoroughly examine whether the administration provided good reasons for its position, and we also look into the fairness of the administrative actions or omissions.

Questions:

(1) How does the EEA handle disputes in relation to these areas?

(2) Are tenderers and contractors advised that they can complain to the Ombudsman?

1. Conflicts of interest

Conflicts of interest arise when persons who work for the public administration may be seen as having an inappropriate personal interest in a matter with which they are dealing. Such conflicts need to be appropriately handled in order to ensure objective decision-making, and to enhance the public's trust in the administration. Recent events and cases show that the EU administration does not clearly enjoy the public's full confidence in relation to this issue.

What concrete measures does the EEA apply in order to avoid conflicts of interest in relation to the following areas?

(1) Recruitment of staff, including senior staff and scientific staff[2]

(2) Current and former staff members, notably regarding external activities during and after service at the EEA (see for instance articles 11, 11a, 12b, and 16 of the Staff Regulations)

I have consulted the EEA's relevant published information relating to tenders and contracts. On the basis of that information, I do not consider it relevant to ask for clarifications about those areas in relation to the issue of conflicts of interest.

I recall that any confidential information and documents that you share with us during the visit, and which you identify as confidential, will not be disclosed to anyone outside our institution[3].

I would like to thank you again for agreeing to organise this visit, and look forward to fruitful exchanges on the above-mentioned themes.

Please note that, following the meeting covering the above-mentioned points, I will also meet with the EEA Staff Committee. My decision to do so follows a request by the Assembly of Agency Staff Committees (AASC) to systematically meet with the staff committees of the agencies that are the objects of my own initiative visits.

I would like to thank the EEA management in advance for organising the practical aspects of my meeting with the EEA Staff Committee. The meeting should take place between 16:30 and 17:30.

Yours sincerely,

P. Nikiforos Diamandouros

Enclosure:

● Annex containing information on complaints and inquiries relating to the EEA