The background to the complaint

1. The complainant is a German citizen. On 26 August 2010, he turned to the Commission and, in line with Regulation 1049/2001[1], requested access to certain preparatory documents concerning the Commission's 'Interpretative Communication on the application of Article 296 of the Treaty in the field of defence procurement'[2] ('the Communication').

2. On 13 October 2010, the Commission refused access to the requested documents. It pointed out that these documents (i) record an exchange of views it had with the Member States regarding the substance of the Communication and (ii) contain information on the Member States' practices in the field of defence procurement. Both types of information were sensitive and closely related to the Member States' essential security interests. As a consequence, the entirety of the requested documents fell within the scope of the exception provided for in Article 4(1)(a) of Regulation 1049/2001 ("defence and military matters"). Consequently, partial access could not be granted either.

3. On 18 October 2010, the complainant submitted a confirmatory application for access. He pointed out that, when deciding on his initial application for access, the Commission clearly exceeded the time period of 15 working days foreseen in Article 7(1) of Regulation 1049/2001 for processing initial applications for access. He also challenged the substance of the Commission's decision on a number of grounds[3].

4. On 12 November 2010, the Commission informed the complainant of an extension by 15 working days of the time period for processing his confirmatory application. On 3 December 2010, the Commission informed him that, in spite of the fact that the extended time period had expired, it had not yet been able to finalise its decision.

5. On 3 December 2010, the complainant turned to the Ombudsman.

The subject matter of the inquiry

6. In his complaint, the complainant submitted the following allegation and claim:

Allegation:

The Commission failed to process his confirmatory application for access to certain documents within the time periods foreseen in Regulation 1049/2001.

Claim:

The Commission should (i) deal rapidly with his confirmatory application and

(ii) grant access to the documents concerned.

The inquiry

7. On 17 December 2010, the complaint was forwarded to the President of the Commission for an opinion.

8. On 23 December 2010, the complainant informed the Ombudsman's services that the Commission, to his surprise and great joy, had granted him unlimited access to all the documents he requested. He pointed out that his request for access had thus fully been satisfied and that the delays in processing his applications for access apparently resulted from an increased need for consultation between the Commission's different services. Against this background, he stated that he considered the matter settled.

9. Following the complainant's letter dated 23 December 2010, the Ombudsman's services informed the Commission that it was no longer necessary for it to submit an opinion in this case.

The Ombudsman's analysis and conclusions

Preliminary remarks

10. It is appropriate to consider the complainant's allegation and claim together.

A. The complainant's allegation and claim

Arguments presented to the Ombudsman

11. The complainant alleged that the Commission failed to process his confirmatory application for access to certain documents within the time periods foreseen in Regulation 1049/2001. He claimed that the Commission should (i) deal rapidly with his confirmatory application and (ii) grant access to the documents concerned.

12. On 23 December 2010, the complainant informed the Ombudsman's services that the Commission had fully satisfied his request for access. He also stated that the delays in processing his applications for access apparently resulted from an increased need for consultation between the Commission's different services. He pointed out that he considered the matter settled.

The Ombudsman's assessment

13. The Ombudsman considers that, by granting full access to the documents requested, the Commission satisfied the complainant's claim. In view of the Commission's granting full access, and bearing in mind the complainant's view that the matter has been settled to his satisfaction, the Ombudsman considers that the Commission has settled the case.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Commission has settled the case to the complainant's satisfaction.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 2 May 2011

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[1] Regulation (EC) No 1049/2001/EC of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.

[2] COM(2006)779 final.

[3] The complainant essentially submitted the following arguments: (i) it was doubtful whether the requested documents could be considered sensitive in their entirety; (ii) given that the Communication is of a 'quasi-legislative nature', preparatory documents relating to it are of crucial importance for its interpretation and, by virtue of Article 15 of the Treaty on the Functioning of the EU, should be disclosed; (iii) it was incomprehensible how disclosing an exchange on the interpretation of a provision of primary EU law could possibly undermine essential security interests of the Member States; (iv) most Member States have, in the framework of consultations launched by the 'Green Paper on Defence Procurement' (COM(2004)608 final), publicly expressed their views concerning the subject-matter covered by the Communication. It is thus unclear how disclosure of the requested documents would undermine the essential security interests of the Member States; and (v) the Council granted him access to preparatory documents leading to the adoption of secondary EU legislation, from which the Member States' positions clearly emerge. Against this background, as well, the Commission's decision was incomprehensible.