The background to the complaint

1. On 20 March 1996, the complainant, a German NGO, applied to the European Commission's Directorate-General for Humanitarian Aid ("ECHO"), requesting to be allowed to sign the 'Framework Partnership Agreement' ("FPA").

2. The handling of this application by ECHO has been examined by the Ombudsman on a number of occasions, notably in his inquiry into complaint 1702/2001/GG and in his own-initiative inquiry OI/4/2005/GG.

3. Complaint 1702/2001/GG concerned, among other things, an allegation that the Commission had failed to grant the complainant access to its file. In his decision of 21 May 2002, the Ombudsman concluded that no maladministration could be established, given that the Commission had granted the complainant access to its file on 15 January 2002.

4. From the documents enclosed with the present complaint, it emerges that a further request for access was made by the complainant in 2006 and that the Commission granted (further) access to its file on 10 October 2006.

5. On 13 October 2009, the complainant submitted to the Commission what it referred to as a request for access to ECHO's file concerning the handling of its application to sign the FPA. The complainant argued that there had to be further documents, such as internal notes, notably as regards the background of the Commission's decision on the complainant's request to sign the FPA. These documents were not in the file that had been made accessible to the complainant. In the complainant's view, the Commission had thus withheld the most important documents. In its letter of 13 October 2009, the complainant also raised a number of substantive issues as regards the Commission's decision on its request to sign the FPA.

6. On 3 November 2009, the Commission rejected the complainant's request for access. The Commission referred to a letter it had addressed to the complainant on 18 November 2008, in which it had pointed out that the complainant had already been given access to its file on 15 January 2002 and on 10 October 2006 and that no further documents had been added to its file since 10 October 2006. The Commission stated that further correspondence concerning this issue would be considered as repetitive and not be answered. However, the Commission also informed the complainant of its right to make a confirmatory application for access, 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").

7. On 17 November 2009, the complainant made a confirmatory application for access. It stressed that it had not argued that further documents had been added to the file since it had last been given access but that certain documents had never been added to that file or illegally been removed from it.

The subject matter of the inquiry

8. In its complaint, the complainant essentially put forward the following allegations and the following claim:

Allegations

(1) The Commission failed to reply to the complainant's confirmatory application within the deadlines foreseen by Regulation 1049/2001.

(2) The Commission deliberately delayed dealing with the matter.

Claim

The Commission should, without further delay, decide on the complainant's confirmatory application.

9. The complainant subsequently submitted the following further allegation, which was also taken up for inquiry:

(3) The Commission's behaviour infringed Articles 4 (lawfulness), 6 (proportionality), 7 (absence of abuse of power), 11 (fairness) and 17 (reasonable time-limit for taking decisions) of the European Code of Good Administrative Behaviour.[2]

The inquiry

10. The present complaint was submitted to the Ombudsman on 28 January 2010.

11. On 2 February 2010, the Ombudsman asked the Commission for an opinion, which was submitted in June 2010. The Ombudsman forwarded the Commission's opinion to the complainant for its observations, which it sent on 22 June 2010.

12. On 29 June 2010, the Ombudsman asked the Commission for further information concerning this case. The Commission sent its reply in October 2010. This reply was sent to the complainant, who presented its observations on 31 December 2010.

The Ombudsman's analysis and conclusions

Preliminary remarks

13. In the requests for access that it addressed to the Commission and in its submissions to the Ombudsman, the complainant made a number of critical remarks concerning (a) the way in which the Commission had handled its application to sign the FPA and (b) the Commission's decision on this application. These issues have already been addressed by the Ombudsman in previous inquiries, notably in his decision on OI/4/2005/GG. The present complaint therefore only concerns the way in which the Commission handled the complainant's confirmatory request for access to documents dated 17 November 2009.

14. In its final observations, the complainant alleged that the Commission's decision, set out in its letter of 3 November 2009, to terminate its correspondence with the complainant was not in conformity with Regulation 1049/2001 and constituted maladministration. The Ombudsman considers that this further allegation is closely linked to the complainant's first allegation. In view of the conclusions that he reaches with regard to this allegation (see points 46-49 below), the Ombudsman takes the view that there is no need to take the additional allegation up for inquiry.

15. The complainant's applications for access to documents were based on Regulation 1049/2001. Subject to certain exceptions, this regulation stipulates a public right of access "to all documents held by an institution" (Article 2(3) of Regulation 1049/2001). In its final observations, the complainant appears to suggest that the documents which it is looking for have been suppressed by the Commission. For the reasons set out below, the Ombudsman considers that there are no grounds to take this possible further allegation up for inquiry.

16. Given that the allegations and the claim put forward by the complainant are closely related, it is appropriate to examine them together.

A. Allegation of failure properly to handle a confirmatory application for access to documents and corresponding claim

Arguments presented to the Ombudsman

17. The complainant alleged that the Commission had (i) failed to reply to its confirmatory application within the deadlines foreseen by Regulation 1049/2001, (ii) deliberately delayed dealing with the matter, and (iii) infringed Articles 4 (lawfulness), 6 (proportionality), 7 (absence of abuse of power), 11 (fairness) and 17 (reasonable time-limit for taking decisions) of the European Code of Good Administrative Behaviour. It claimed that the Commission should without further delay decide on the confirmatory application.

18. The complainant acknowledged that the Commission had already granted it access to its file. However, it argued that the Commission continued to keep back the really relevant documents. In the complainant's view, the Ombudsman should take action against what it perceived to be the Commission's arbitrary behaviour and also inform the European Parliament.

19. In its opinion, the Commission reiterated that the complainant had on two occasions been given the opportunity to consult its file at ECHO's premises. Therefore, access to its file had not been refused.

20. The Commission acknowledged that its reply of 3 November 2009 might have created some confusion. This letter stated that the complainant had already consulted the file and that no new documents had been added to that file, meaning that full access to all relevant documents had already been given. On the other hand, it also mentioned the possibility to ask for a review of this position.

21. In the Commission's view, even though the complainant's letter of 17 November 2009 mentioned as its subject "Confirmatory application for full access to the file held by ECHO", it was basically a complaint against the way in which the complainant's application to sign the FPA had been handled.

22. The Commission pointed out that its Secretariat-General had taken the view that the confirmatory application was devoid of purpose and that the issues raised in the complainant's letter of 17 November 2009 were not covered by Regulation 1049/2001. It added that, due to a lack of internal communication, the complainant was never informed accordingly. The Commission regretted that it failed properly to inform the complainant and apologised for this administrative mistake.

23. In its observations, the complainant submitted that the Commission had failed to deal with the substance of its request. In essence, the complainant argued that the file to which it had been given access was not complete, given that there had to be further documents concerning the way in which the Commission had handled its application to sign the FPA. Such documents could be letters, internal notes and correspondence between the various services of the Commission that had been involved in the matter. The complainant submitted that the Commission must have omitted to add these documents to the file or subsequently removed them from the file. It further argued that the Commission's opinion disregarded the correspondence that had taken place in 2003 and 2004. The complainant reiterated its request that the Ombudsman should inform Parliament.

24. Having examined the Commission's opinion and the complainant's observations, the Ombudsman asked the Commission to provide him with further information concerning two issues.

25. First, the Ombudsman pointed out that the complainant argued that the file to which it had been given access was not complete, given that there had to be further documents concerning the way in which the Commission had handled its application to sign the FPA. Such documents could be letters, internal notes and correspondence between the various services of the Commission that had been involved in this matter. The complainant submitted that the Commission must have failed to add these documents to the file or had subsequently removed them from the file. The Ombudsman noted that this argument had already been put forward in the original request for access. It was repeated in precise terms in the confirmatory application. The Ombudsman therefore asked the Commission to address this argument and specify, in light of such argument, why it nevertheless considered properly to have dealt with the complainant's request for access to documents.

26. Second, the complainant further argued that the Commission's opinion disregarded the correspondence that had taken place in 2003 and 2004. The Ombudsman therefore invited the Commission to comment on this point.

27. In its reply, the Commission pointed out that, by its letter of 3 November 2009, it intended to confirm that it was not in possession of any further letters, internal notes or correspondence concerning the complainant's application to sign the FPA. It therefore considered that, to the extent possible, it had handled the complainant's requests correctly.

28. The Commission recalled that, in the submissions it had made in the context of the Ombudsman's own-initiative inquiry OI/4/2005/GG, it had admitted that the complainant's FPA application should have been handled with more diligence. In this context, the Commission admitted that there appeared to be an absence of a thorough documentation as regards its handling of this application.

29. The Commission considered it appropriate to explain the concrete situation of document management at the time when the complainant's FPA application was handled.

30. First, no mandatory and uniform rules on document management existed at that time, in particular with regard to the registration and filing of documents and the management of the institution's files. The legal framework for document management had been adopted by the Commission through its Decision of 23 January 2002 amending its Rules of Procedure.[3] Implementing rules on registration and filing management were adopted on 8 April 2003.[4]

31. Second, there was also a lack of uniformity as regards the filing of documents. At the relevant time, the Commission did not hold a single file relating to FPA applications that could be considered specific and exhaustive. Whilst files were in principle archived in manual form, more informal documents, internal to a service or a unit, were not necessarily archived in the paper file. In some units, such documents were placed in personal folders or in folders created on the unit's computer common drive. However, there was no standard nomenclature, and personal files are closed when an official leaves the unit. In consequence, with the passage of time, it was impossible to retrieve documents that might have existed in the past.

32. In light of the above, the Commission stressed that there had been no attempt to withhold from the complainant documents concerning the handling of its FPA application.

33. As regards the Ombudsman's second question, the Commission submitted that the relevant section of the complainant's comments related to complaint 1874/2003/GG and not to the subject-matter of the present complaint.

34. In its observations, the complainant maintained its complaint. It suggested that the Commission had suppressed the documents that it was looking for.

The Ombudsman's assessment

35. Before dealing with the allegations and the claim raised by the complainant, the Ombudsman considers it appropriate to examine the premise on which the complainant's case is based.

36. The complainant takes the view that the Commission's file concerning its application to sign the FPA should contain a range of further documents, such as letters, internal notes and correspondence between the various services of the Commission that had been involved in the matter.

37. The Ombudsman fully agrees with the complainant. An institution's file should contain a proper record of how a given matter has been handled, including all the information on which the decision was based. To the extent that oral information has been used, it is clearly necessary to record this information in writing and add the relevant note to the file.

38. The Commission has acknowledged that there appeared to be an absence of a thorough documentation as regards the handling of the complainant's FPA application. The Ombudsman considers that this statement does not adequately reflect reality. As a matter of fact, when handling the complainant's application to sign the FPA, the Commission failed to comply with basic standards of file-keeping. The description given by the Commission of the situation prevailing before the introduction of uniform rules on document management and file-keeping in 2002/2003 confirms that there were serious deficiencies. The Ombudsman is particularly surprised to hear that, until then, the Commission did not hold a single file relating to FPA applications that could be considered specific and exhaustive.

39. Whilst it is thus clear that further documents ought to have been drawn up and added to the file concerning the handling of the complainant's FPA application, this issue - which is not covered by the present inquiry - needs to be distinguished from the question whether such documents actually existed and whether they are still available.

40. In its reply to the Ombudsman's request for further information, the Commission has clarified that it is not in possession of any further letters, internal notes or correspondence concerning the complainant's application to sign the FPA and that it was impossible to retrieve documents that might have existed in the past.

41. According to the case-law of the Union courts, "a presumption of legality attaches to any statement made by the institutions relating to the non-existence of documents requested. (...) That presumption must be applied by analogy where the institution declares that it is not in possession of the documents requested."[5]

42. It has to be stressed that this is a simple presumption which can be rebutted in any way on the basis of relevant and consistent evidence.[6] The Ombudsman considers, however, that no such evidence has been put forward by the complainant. The only concrete argument that was put forward by the complainant in this context concerns the Commission's alleged failure, when dealing with the requests for access, to consider correspondence that took place in 2003 and 2004. However, the Commission explained that this correspondence concerned a previous inquiry by the Ombudsman and was thus not relevant in the present case. The Ombudsman notes that the complainant did not dispute this statement.

43. In these circumstances, the Ombudsman concludes that it must be presumed that the Commission is indeed not in possession of any other documents concerning the handling of the complainant's FPA application.

44. As already mentioned above, the complainant appears to suggest in its final observations that the documents which it is looking for did exist but were suppressed by the Commission, that is to say, that they were destroyed so as to thwart the complainant's right of being given access to them.

45. The Ombudsman notes that this suggestion is not supported by any tangible evidence and seems to be based on pure speculation. In light of the explanations provided by the Commission, it seems perfectly possible that no such documents were drawn up in the present case or that any such documents that did exist were not kept and were not added to the file as a result of the generally deficient approach to file-keeping that appears to have prevailed at that time in the service concerned. It should be noted that the Commission stressed that there had been no attempt to withhold from the complainant documents concerning the handling of its FPA application. Also bearing in mind that the relevant events date back as far as 1995, the Ombudsman therefore does not see any need for further inquiries concerning this aspect of the case.

46. Turning to the allegations and the claim that are covered by the present inquiry, the Ombudsman notes that the complainant alleges that the Commission failed to reply to its confirmatory application within the deadlines foreseen by Regulation 1049/2001. The Ombudsman considers that this allegation covers two issues. First, the complainant criticizes the Commission's alleged failure to provide a reply within the deadlines foreseen by Regulation 1049/2001. Second, and also bearing in mind the complainant's claim, the complainant should be understood as also criticizing the fact that his confirmatory application was not given a proper reply, i.e., that it was not dealt with properly.

47. The Ombudsman finds that the Commission incontestably failed to reply to the complainant's confirmatory application within the deadlines foreseen by Regulation 1049/2001. Without directly addressing the allegation concerning this shortcoming, the Commission submitted two considerations in this context, namely, that the complainant's confirmatory application was devoid of purpose and that the issues raised in the complainant's letter of 17 November 2009 were not covered by Regulation 1049/2001.

48. Although it is true that the complainant's letter of 17 November 2009 criticises the way in which the Commission handled its FPA application, the fact remains that it also contains a confirmatory application for access. The Commission itself admitted that this letter mentioned as its subject "Confirmatory application for full access to the file held by ECHO". What is more, the letter is addressed to the Commission's Secretariat-General, which is competent to deal with confirmatory applications, and explicitly refers to the possibility of submitting a confirmatory application that was mentioned in the Commission's letter of 3 November 2009. In these circumstances, the Commission cannot seriously argue that it was unable to understand that the complainant wished to make a confirmatory application for access.

49. As mentioned above, it has to be presumed that the Commission was not in possession of any other documents to which the complainant could be given access. However, the Ombudsman is not at all convinced that this meant that the confirmatory application was devoid of purpose. As set out above, the Ombudsman considers that the complainant was justified to take the view that the Commission's file concerning its application to sign the FPA ought to have contained a range of further documents, such as letters, internal notes and correspondence between the various services of the Commission that had been involved in the matter. It was only during the present inquiry, and in reply to a question put to it by the Ombudsman, that the Commission clarified that no such documents were in its possession. In the Ombudsman's view, it is therefore clear that the complainant's confirmatory application of 17 November 2009 was not 'devoid of purpose' and that it ought to have been given a proper reply by the Commission. The Ombudsman therefore concludes that the Commission failed to give a proper reply to the complainant's confirmatory application.

50. In its opinion, the Commission expressed regrets at the fact that it failed properly to inform the complainant and apologised for this administrative mistake. The Ombudsman welcomes this apology. He notes, however, that it only concerns the failure to inform the complainant of the approach adopted by the Commission, and not the approach as such. Given that no apology has thus been offered for the Commission's failure to provide a proper reply to the complainant's confirmatory application and to do so within the deadlines foreseen by Regulation 1049/2001, a critical remark will be made below.

51. As regards the complainant's allegation that the Commission deliberately delayed dealing with the matter, the Ombudsman takes the view that his inquiry has not enabled him to establish any facts that could support this allegation. No maladministration is therefore found as regards this aspect of the case.

52. As regards the complainant's claim, the Ombudsman notes that the Commission has not adopted an explicit decision on the complainant's confirmatory application. It should be noted, however, that the Commission has explained that it does not have any further documents that could be disclosed to the complainant. In these circumstances, asking the Commission nevertheless to proceed to a formal decision would not appear to be useful. The Ombudsman therefore considers that there are insufficient grounds for further inquiries as regards this aspect of the case.

53. In view of the above, there is no need more closely to examine the complainant's third allegation. The Commission's failure to comply with Article 17 of the European Code of Good Administrative Behaviour (reasonable time-limit for taking decisions) in this case is in any event covered by the critical remark below.

B. Conclusions

54. On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

It is good administrative practice properly to reply to confirmatory applications for access and to do so within the relevant deadlines foreseen in Regulation 1049/2001. The Commission's failure to do so in the present case constitutes an instance of maladministration.

55. The complainant has repeatedly requested that the Ombudsman should inform the European Parliament of this case. 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. However, the Ombudsman does not consider it appropriate to make a draft recommendation in this case.

56. In these circumstances, there appears to be no need for the Ombudsman to inform Parliament of this case. However, the complainant is of course free to bring the present decision to Parliament's attention.

57. The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 18 March 2011

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[1] OJ 2001 L 145, p. 43.

[2] The Code is available on the website of the European Ombudsman.

[3] OJ 2002 L 21, p. 23.

[4] SEC(2003)349/1 and SEC(2003)349/2.

[5] Joined Case T-355/04 and T-446/04 Co-Frutta v Commission, judgment of 19 January 2010, paragraph 155.

[6] See Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429, paragraph 29.