THE BACKGROUND TO THE COMPLAINT

1. The complainant participated in Open Competition EPSO/AD/77/06. In May 2007, he sat two computer-based admission tests. On 1 June 2007, EPSO informed him that his marks were not high enough to allow him to participate in the next stage of the competition.

2. On 4 June 2007, he requested EPSO to provide him with copies of the questions put to him, his answers, as well as the correct answers. On 27 June 2007, EPSO informed the complainant of its refusal to grant his request and explained the reasons for this decision.

3. By letter dated 10 July 2007, the complainant submitted to EPSO a confirmatory application referring to his rights under 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 ('Regulation 1049/2001')[1] and requesting access to the above documents[2]. On 20 July 2007, EPSO informed the complainant that he had to address his confirmatory application to the Secretariat-General of the European Commission ('the SG').

4. On 21 July 2007, the complainant submitted his confirmatory application to the SG concerning EPSO's refusal to grant him access to the requested documents.

5. On 22 September 2007, not having received a reply to his confirmatory application, the complainant brought an action before the Court of First Instance of the European Communities against EPSO's refusal to provide him with copies of the requested documents. The case is still pending before that court[3].

6. On 17 January 2008, after apologising for the delay, the SG rejected the complainant's confirmatory application of 20 July 2007.

7. In the meantime, the complainant also challenged EPSO's decision to exclude him from the next stage of the competition. On 6 December 2007, following EPSO's refusal to review its decision, the complainant lodged an application before the Civil Service Tribunal[4]. The application is still pending.

8. On 14 April 2008, the complainant turned to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

9. On 5 June 2008, the Ombudsman opened an inquiry into the complainant's following allegation:

EPSO failed to transfer his confirmatory application to the Secretariat-General of the European Commission and comply with Article 15(1) of the European Code of Good Administrative Behaviour[5].

THE INQUIRY

10. On 5 June 2008, the Ombudsman invited EPSO to comment on the complainant's allegation and to clarify the rules of its cooperation with the Commission in the context of public access requests. On 5 November 2008, EPSO submitted its opinion. The complainant did not submit any observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

11. According to the first paragraph of Article 195(1) of the EC Treaty, the Ombudsman is not empowered to examine a case where the relevant facts are or have been the subject of "legal proceedings". Furthermore, Article 1(3) of the Ombudsman's Statute provides that "[t]he Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling." However, it should be noted that this exclusion only applies if the parties, as well as the subject matter of the dispute, are identical.

12. In the present case, the action brought before the Court of First Instance concerns EPSO's refusal to provide the complainant with the requested documents. In contrast, the subject matter of the complaint lodged before the Ombudsman concerns EPSO´s alleged failure to transfer the complainant's confirmatory application to the SG. Since the subject matter of the two proceedings is different, the Ombudsman is therefore empowered to examine the present complaint.

A. Arguments presented to the Ombudsman in the present case

13. Invoking Article 15 of the European Code of Good Administrative Behaviour, the complainant argues that EPSO should have transferred his confirmatory application to the SG.

14. In its opinion, EPSO acknowledged that when an application is addressed to the wrong service, it is not enough for EPSO to provide the applicant with the correct address. On the contrary, it should itself forward the application to the competent service.

15. EPSO also informed the Ombudsman of an established practice of cooperation with the Commission concerning the handling of applications for public access to documents. According to that practice, EPSO responds initially to new access requests, which are either submitted directly to its office or are passed on to it by the Commission. If EPSO decides to refuse access, it informs the applicant that, in accordance with Article 4 of the Commission's decision on the application of Regulation 1049/2001[6], he/she is entitled to lodge a confirmatory application to the SG.

B. The Ombudsman's assessment

16. Principles of good administration, as reflected in Article 15 of the European Code of Good Administrative Behaviour, require that, when a letter or complaint is addressed to an institution's organ which is not competent to deal with it, the letter or complaint must be transmitted without delay to the institution's competent service.

17. In the present case, EPSO did not transfer the complainant's application to the SG, but asked the complainant to address himself directly to it. The Ombudsman takes notes of the fact that, in its opinion, EPSO fully acknowledged that the above rule must generally be followed. However, in view of the information provided by EPSO regarding its cooperation with the Commission in the handling of applications for public access to documents, the Ombudsman doubts whether EPSO could actually be subject to the specific duty, under Article 15 of the above Code, to transfer a confirmatory application to the Commission.

18. The issue concerning public access to documents held by EPSO is not expressly regulated in the decision setting up EPSO (2002/621/EC). Moreover, EPSO is neither mentioned in Regulation 1049/2001 nor in the aforementioned Commission decision implementing the access rules.

19. The Ombudsman applauds the fact that EPSO decided to establish a practice whereby the rules on public access to documents would also apply to documents that it holds. He notes that such a practice is consistent with the EU's decision to extend the application of the public access rules in Regulation 1049/2001 to smaller bodies like EU agencies. Furthermore, in light of the relations EPSO had with the Commission during the early phase of its establishment, it is only natural that EPSO decided to draw on the Commission's relevant expertise in the field of public access to documents.

20. Nevertheless, the Ombudsman is convinced that EPSO - which is not a part of the Commission, but an inter-institutional body - would be fully competent to adopt a practice or a decision to apply Regulation 1049/2001 autonomously and hence to respond to confirmatory applications under the procedure foreseen in the Regulation.

21. Moreover, the Ombudsman has certain doubts as to whether the Commission can be considered competent, in a formal legal sense, to issue decisions on confirmatory applications made against EPSO's rejection of initial applications. Regulation 1049/2001 applies to "documents ... concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility" (Article 3(a)). It may very well be the case that certain documents held by EPSO are also - in copy or in original - held by the Commission. However, it does not appear necessary to conclude that all documents held by EPSO can be considered as falling within the Commission's sphere of responsibility in the above sense.

22. Having said that, the Ombudsman does not find it necessary or appropriate to reach a conclusive finding on this issue in the present case. He will, however, take appropriate steps to address the matter in order to elicit a useful degree of clarity and consistency regarding the handling of requests for public access to documents held by EPSO.

23. In light of the above considerations, the Ombudsman does not consider it justified to further pursue his inquiry into the present case.

C. Conclusions

For the reasons given in paragraphs 17-23, no further inquiries are justified into the present complaint. Therefore, the Ombudsman closes the case.

Further remark

In light of the above findings in paragraphs 19-22, the Ombudsman considers that it would be appropriate for EPSO to take all necessary steps, such as submitting a relevant proposal to its Management Board, in order to establish its autonomy in the area of processing requests for access to document held by its services.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 26 March 2009

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

[2] Article 2(1) of Regulation 1049/2001 provides that:

"Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation."

[3] Case T-374/07, Pachtitis v. Commission of the European Communities and EPSO.

[4] Case F-35/2008, Pachtitis v. Commission of the European Communities.

[5] Article 15 Obligation to transfer to the competent service of the Institution:

"1. If a letter or a complaint to the Institution is addressed or transmitted to a Directorate General, Directorate or Unit which has no competence to deal with it, its service shall ensure that the file is transferred without delay to the competent service of the Institution.

2. The service which originally received the letter or complaint shall notify the author of this transfer and shall indicate the name and the telephone number of the official to whom the file has been passed.

3. The official shall alert the member of the public or organisation to any errors or omissions in documents and provide an opportunity to rectify them."

[6] 2001/937/EC, ECSC, Euratom: Commission Decision of 5 December 2001 amending its rules of procedure (notified under document number C(2001) 3714), OJ 2001 L 345, p. 94.