[1]

THE BACKGROUND TO THE COMPLAINT

1. The complainant submitted an application for public access to documents to the European Agency for Reconstruction (EAR), a Community agency[2]. The applicability of Regulation 1049/2001[3] on public access to documents held by the EAR was laid down by Council Regulation 1646/2003. In accordance with the latter Regulation, the EAR adopted, on 23 January 2004, its Decision of the Governing Board of the European Agency for Reconstruction on the implementation of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to documents.

2. The complainant wrote to the EAR on 31 October 2006, requesting, principally, documents relating to certain tenders. Not having received a reply, he made a confirmatory application on 9 December 2006.

3. The EAR initially failed to deal with that confirmatory application. However, subsequent to the opening of the inquiry by the European Ombudsman, the EAR sent a further reply to the complainant. The Ombudsman decided that the EAR's reply, and the complainant's corresponding comments, could be dealt with in the framework of this inquiry. He therefore proceeded to a global assessment of the issues involved.

THE SUBJECT MATTER OF THE INQUIRY

4. The Ombudsman opened his inquiry into the following allegations and claim.

Allegations:

(A) Failure by the EAR adequately to deal with his initial and confirmatory applications for access to the documents concerned.

(B) Failure by the EAR to provide valid and adequate grounds for non-disclosure (partial and/or full) of the documents concerned.

Claim:

The EAR should grant him access to the documents concerned.

THE INQUIRY

5. On 13 September 2007, the EAR submitted its opinion. On 28 September 2007, the Ombudsman asked the EAR to submit a revised opinion. The revised opinion was sent to the complainant on 26 October 2007. The complainant sent his observations on the EAR's revised opinion on 19 November 2007. On 29 September 2008, the Ombudsman made a proposal for a friendly solution. The EAR subsequently informed the Ombudsman that it was about to be closed down, and that its files would be taken over by the European Commission. Following brief correspondence between the EAR and the complainant, in which the Ombudsman was in copy, the Ombudsman's services contacted the EAR, on 18 November 2008, in order to ascertain the state of the handling of the proposal for a friendly solution. The EAR informed the Ombudsman's services that it intended shortly to contact the complainant in the matter. Following this contact, the EAR was progressively closed down, and its files were transferred to the Commission. The latter, apparently due to the burden that this work involved, only replied to the Ombudsman's proposal for a friendly solution on 14 January 2010.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of failure to deal adequately with the complainant's initial and confirmatory applications for access to the documents concerned

Preliminary remark

6. In his proposal for a friendly solution, the Ombudsman concluded that the EAR's handling of the complainant's applications for access to documents had been deficient in several respects. Given that the EAR has been closed down, it serves no purpose to issue corresponding critical remarks. However, in the interest of making his findings on the interpretation of Regulation 1049/2001 available to the public[4], the Ombudsman deems it appropriate to set out his analysis of the first allegation here in full.

Arguments presented to the Ombudsman

7. The Ombudsman understood the complainant to raise the following issues:

1. The EAR replied to the complainant's applications either with delay or not at all;
2. The EAR's consultation with OLAF was unjustified and/or not properly carried out;
3. The EAR failed adequately to deal with the issue concerning the alleged lack of specificity in the complainant's applications;
4. The EAR incorrectly informed the complainant that he himself could consult the private companies, whose commercial interests the EAR considered protected; and
5. The EAR failed to consider granting partial access to the documents that were not disclosed.

8. In its opinion on the present complaint, the EAR provided, in summary, the following information and comments:

9. The complainant wrote to the EAR on 31 October 2006 requesting access to various documents, including OLAF investigation reports and Tender Evaluation Reports. On 7 December 2006, the EAR replied and provided him with all the documents he requested, which, to the best of the EAR's knowledge, were publicly available. The EAR did not disclose the evaluation reports (except opening reports which are public documents), the non-successful bidders' complaints and OLAF investigation reports.

10. As regards the OLAF reports, the EAR informed the complainant that it would seek advice from OLAF as to whether the reports could be disclosed. On 31 January 2007, OLAF informed the Agency that it could not provide advice, since the complainant's request was not sufficiently detailed.

11. The complainant then wrote directly to the Agency again, on 27 June 2007, making a second request for access to documents. He partly repeated his first request in that he asked for copies of the non-successful bidder's complaints. In addition, however, he requested a copy of a clarification made by the evaluation committee to a bidder during the evaluation process. He also said that he had been in direct contact with OLAF and received a copy of its final report, although parts of it had been blanked out by OLAF.

12. The EAR acknowledged receipt of the complainant's request on 5 July 2007, and replied in substance on 24 July 2007.

13. The EAR also accepted that its first answer to the complainant (7 December 2006) was not as prompt as it should have been. The EAR made a commitment to improve its systems to ensure that replies were sent within 15 days.

14. With regard to the Ombudsman's request for clarification concerning the EAR's communication with OLAF, it appeared that the EAR's request for advice from OLAF was sent directly to the EAR's contact point in OLAF. This request was then forwarded to the relevant OLAF department. The EAR did not consider the request to OLAF "as being a particular application of Article 5 (6) of the Agency's implementing provisions on Regulation 1049/2001 but a request for advice on disclosure of documents."

15. In his observations on the EAR's opinion, the complainant made, in summary, the following comments:

16. In relation to the statement made by the EAR, in its opinion, that it had received no further correspondence from him following its reply of 24 July 2007, this was simply not true. The complainant made a confirmatory application on 27 July 2007, and receipt of this was acknowledged on 21 August 2007 by Mr K. of the EAR. This confirmation which was sent in copy to another EAR staff member, Mr M., who now claims that the complainant had submitted no further correspondence.

17. Up until the date of his observations, the EAR had not replied in substance to the complainant's confirmatory application. This (amongst other things) did not lend credibility to the EAR's statement that it had committed itself to take measures to ensure that replies were made within the 15 day deadline contained in Regulation 1049/2001.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

18. With regard to the issue of the delay in the EAR's handling of the complainant's applications, it was noted that the EAR had indeed acknowledged this shortcoming. It admitted that its "first answer" to the complainant was not as "prompt as it should have been."

19. While welcoming this open acknowledgement that a delay had occurred, the Ombudsman noted that several delays (i.e., not only the above one) had indeed occurred, and that these delays were inconsistent with the relevant provisions laid down in Regulation 1049/2001. The Regulation provides that applications for access (both initial and confirmatory) shall be handled "promptly", and at any rate within 15 working days from registration, which should normally take place on the first working day following receipt[5]. The Regulation provides for the possibility to extend this maximum deadline by an additional 15 working days, but only in "exceptional cases" and provided that the applicant is "notified in advance and that detailed reasons are given".

20. In the present case, the EAR only replied to the complainant's initial application of 31 October 2006 on 7 December 2006, and this reply was not a final reply. Not having heard from the EAR earlier, the complainant submitted a confirmatory application on 9 December 2006, which crossed paths with the above-mentioned EAR reply of 7 December 2006. The EAR informed the complainant on 18 January 2007 that it was still awaiting a relevant reply from OLAF regarding the confidentiality of some of the documents.

21. When the Ombudsman opened the present inquiry on 29 May 2007, the EAR had not replied at all to the complainant's confirmatory application of 9 December 2006. It also did not appear to have made a subsequent reply (although its response to the complainant's, partly renewed, application of 27 June 2006 was, according to the EAR's opinion in the present inquiry, intended to contain a relevant substantive reply). With regard to the handling of that request, the EAR's initial reply was also delayed. Additionally, the complainant's confirmatory application, despite clearly stating that it was a confirmatory application (the term used in Regulation 1049/2001), was apparently not understood, and hence never dealt with according to the rules in Regulation 1049/2001.

22. In light of the foregoing, it was clear that there were rather obvious delays and failures to reply on the part of the EAR, which were in breach of Regulation 1049/2001, and which amounted to instances of maladministration.

23. With regard to the EAR's consultation of OLAF, the Ombudsman noted the following:

24. In the first place, the procedural nature of the EAR's decision to consult OLAF appeared to have been unclear to the EAR itself. As noted above, when opening the present inquiry, the Ombudsman asked the EAR to clarify, in its opinion, whether its communication with OLAF in the present case had been intended as an application of Article 5(6) of its implementing provisions on Regulation 1049/2001, which provided as follows:

"The third-party author consulted shall have a deadline for reply which shall be no shorter than five working days but must enable the Agency to abide by its own deadlines for the reply. In the absence of an answer within the prescribed period, or if the third party is untraceable or not identifiable, the Agency shall decide in accordance with the rules on exceptions in Article 4 of Regulation (EC) No 1049/2001, taking into account the legitimate interests of the third party on the basis of the information at its disposal."

25. In its opinion in the present inquiry, the EAR stated that it did not consider the request to OLAF "as being a particular application of Article 5 (6) of the Agency's implementing provisions on Regulation 1049/2001 but a request for advice on disclosure of documents."

26. In its reply of 24 July 2006, to the complainant's request of 27 June 2006, the EAR informed the complainant that "[a]s we have replied to you earlier, these documents are mentioned in an OLAF Case Report, thus their disclosure required OLAF's prior consent." (emphasis added)

27. With regard to the above, the Ombudsman first took note of the EAR's statement, in its opinion, that it did not consult OLAF on the basis of Article 5(6) of the implementing provisions referred to, but only "sought advice" from OLAF. This, however, could not be accepted. If the applicable legal rules provide a legal basis for certain specific actions (in this case, the consultation of third parties in relation to document access), the Administration cannot pretend that such an action was simply unrelated to the legal rule and thus be freed from the procedural obligations relating thereto. This specific point did not, however, need further elaboration, since the EAR appeared to have essentially overlooked - rather than consciously ignored or breached - the above-quoted implementing provision when it thought about consulting OLAF.

28. Notwithstanding the final remark in the preceding point, it was necessary briefly to examine whether the EAR's actual actions were, nevertheless, consistent with the above-quoted provision. In this respect, the Ombudsman noted the following: First, the provision stipulated, in mandatory terms, that the third-party author "shall have a deadline". It did not appear that the EAR set a deadline in the present case. Second, it followed from the wording of the provision that the EAR "must" be able "to abide by its own deadlines for the reply". Thus, the act of consulting a third party did not make the above-mentioned deadlines redundant. Third, the provision provided that "the Agency shall decide" (emphasis added). Thus, even following consultation, it was the EAR that had to decide whether the documents concerned could be disclosed or not. It would appear, however, that the EAR in the present case contacted OLAF with a view to obtaining, in essence, a decision of OLAF consenting, or objecting to the disclosure.

29. It followed from the above that the EAR's consultation of OLAF was not consistent with the relevant written rule, and hence amounted to an instance of maladministration.

30. With regard to the EAR's view that there was a lack of specificity in the complainant's applications, it appeared that the EAR had overlooked Article 6(2) of provision of Regulation 1049/2001, which reads as follows:

"If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents." (emphasis added)

31. The EAR appeared not to have asked the complainant to clarify the relevant part of his application. This omission constituted a breach of the above provision and was, accordingly, an instance of maladministration.

32. As regards the specificity of the complainant's requests, the Ombudsman, finally noted that, in its reply of 24 July 2006, the EAR stated that "[t]hese two documents" and "these documents are mentioned in an OLAF Case Report" (emphasis added). It appeared that the EAR refrained from granting access, accepting an alleged statement by OLAF that the complainant's request is "not sufficiently specific". It appeared, however, to be contradictory to refer to "these documents", and at the same time state that it was not clear what the applicant referred to. The EAR was given the possibility to clarify this matter in its response to the Ombudsman's proposal for a friendly solution. were already in the list of documents you asked for in October 2006

33. With regard to the complainant's view that the EAR failed to consult the private companies which it advised him to contact, the Ombudsman first noted that the EAR's reasoning on this issue appears to have been hypothetical. This was because the EAR was apparently not sure whether it had properly identified the complainant's relevant request. However, to the extent that the complainant's objection was that the EAR was not allowed, under Regulation 1049/2001, simply to advise applicants to contact third parties, and for no stated reason refrain from doing so itself, the Ombudsman considered that the complainant had made a valid point. Article 4(4) of Regulation 1049/2001 provides as follows (emphasis added):

"As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed."

34. It was clear from this provision that the EAR would have a legal obligation to (i) form an independent view on whether any of the exceptions in Article 4 of Regulation 1049/2001 applied, and (ii) if this were not clear, to consult the companies concerned. The EAR's above-mentioned approach of advising an applicant to consult the private companies in question himself, did not therefore appear compatible with Article 4(4) of Regulation 1049/2001.

35. Finally, with regard to the possibility of granting partial access, the Ombudsman drew attention to Article 4(6) of Regulation 1049/2001. This lays down an obligation - and not simply a possibility - to consider granting partial access to the documents requested, if the Administration considers that one or more of the exceptions in Article 4 of the Regulation apply[6]. It appeared that the EAR did not consider this possibility in the present case. This accordingly constituted an instance of maladministration.

36. In light of the above findings, notably in paragraphs 30 to 32, the Ombudsman made the following proposal for a friendly solution:

The EAR could consider contacting the complainant with a view to obtaining a full and precise list of the documents which he considers to be covered by his access applications.

B. Allegation of failure by the EAR to provide valid and adequate grounds for non-disclosure (partial and/or full) of the documents concerned

37. Before examining the various reasons given by the EAR for its decision not to disclose documents, the Ombudsman summarised, as follows, the relevant main rules and principles laid down in settled case-law concerning the application of Regulation 1049/2001.

38. It is settled case-law that the examination required for the purpose of processing a request for access to documents under Regulation 1049/2001 must be specific in nature[7]. The mere fact that a document concerns an interest protected by an exception cannot justify the application of that exception. Such application may, in principle, be justified only if the institution has previously assessed, first, whether access to the document would specifically and actually undermine the protected interest and, second, in the circumstances referred to in Article 4(2) and (3) of Regulation 1049/2001, whether there was no overriding public interest in disclosure. Furthermore, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a concrete manner and must be apparent from the reasons given for the decision. For instance, an assessment of documents by reference to categories, rather than on the basis of the actual information contained in those documents, is, in principle, insufficient, since the examination required of an institution must enable it to assess specifically whether an invoked exception actually applies to all of the information contained in those documents. Similarly, the statement of grounds required by Article 296 of the EC Treaty must disclose, in a clear and adequate way, the reasoning of the refusal, so as to enable the persons concerned to evaluate the propriety of the reasons for the decision and, in case of a relevant complaint to the Ombudsman, to enable him to exercise his power of review[8].

Arguments presented to the Ombudsman

39. In his complaint, the complainant put forward that the EAR's refusal to grant access to copies of the Tender Evaluation Reports concerning the three construction phases of the project 'Upgrading of Negotino - Demir Kapija' was not adequately reasoned. The mere statement that tender evaluation reports were confidential is not acceptable as a ground for refusal. Specific references should have been made to the provisions in Regulation 1049/2001. Moreover, proper reasoning should have been given for why the documents are still confidential, even though they concern evaluations that took place four to six years beforehand.

40. In its opinion, the EAR accepted that it had stated that the evaluation reports were confidential, but did not explain why. In this regard, the EAR stated that the confidentiality of the evaluation process was one of the basic principles of European public procurement, which the EAR assumed to be common knowledge, and therefore did not require further explanation. At any rate, this issue was clarified in the reply to the second request raised by the complainant in his complaint to the Ombudsman. On 24 July 2007, the EAR sent the following substantive reply to the complainant:

"Dear Mr X.,

You are requesting a 'Complaint and answer' regarding the tender for 'Upgrading of E-75 Motorway' in FYROM. These two documents were already in the list of documents you asked for in October 2006. As we replied to you earlier, these documents are mentioned in an OLAF Case Report, thus their disclosure required OLAF's prior consent. The opinion of OLAF is that your request is not sufficiently specific.

If your request for a 'complaint and answer' relates to an issue rose [sic] by a specific bidder, the Regulation 1049/2001 … states the following:

Article 4.2 (1049/2001):

'2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

- commercial interests of a natural or legal person, including intellectual property,

- court proceedings and legal advice,

- the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.'

Article 4.4:

'As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.'

A bidder/company complaint [sic] is a third-party document and concerns its commercial activity. Therefore, the assessment of access to this document is based on the subjective opinion of the bidder. Thus, the Agency would allow access to the document only if approved by the company. Therefore, we suggest that you make the request directly to the bidder/company.

The 'answer' prepared to the complaint derives from the complaint and thus has the same status as the complaint.

You are also requesting two other documents: 'clarification' and 'answer'.

Again, your request is not enough specific. However, if your request concerns a 'clarification' and 'answer' from a bidder/company during the tender evaluation process, this documentation is part of the evaluation process. Regarding the disclosure of information on the evaluation process, the Practical Guide (PRAG) 5.3.9.7 states the following:

'Subject to the Contracting Authority’s policy on access to documents, the entire tender procedure is confidential from the end of the tender opening session to the signature of the contract by both parties. The Evaluation Committee's decisions are collective and its deliberations must remain secret. The Evaluation Committee members and any observers are bound to secrecy.

The Evaluation Report, in particular, is for official use only and may be divulged neither to tenderers nor to any party outside the authorised services of the Contracting Authority, the European Commission and the supervisory authorities (e.g. the Court of Auditors).'

The PRAG is the manual for procedures for EU assistance procurement (See EuropeAid web site). The above quotation concerns specifically works tender evaluations but the same principle applies to all other types of tenders.

As you can see from the above the entire tender procedure is confidential. In addition, the 'clarification/answer' concerns the commercial interest of the bidder. Therefore, even if your request was specific enough, we could not provide you with the documents you have requested."

41. In his observations, the complainant made the following remarks:

42. In its letter of 24 July 2007, the EAR referred to its 'Practical Guide' in justifying its refusal to grant access to those documents that formed part of the evaluation procedure. To the complainant's knowledge, the 'Practical Guide' is not a text having binding force in law, but rather a guideline. The complainant therefore considers that the 'Practical Guide' could not be applied for the examination of his access application, and that only Regulation 1049/2001 could form the basis of the EAR's decision.

43. In this context, the complainant confirmed that his above remarks also applied to the refusal to grant access to the Tender Evaluation Reports for the three building phases of the project 'Upgrading of Negotino - Demir Kapija'. The complainant pointed out anew that the EAR had not given any reasons for why these documents could not be disclosed, even several years after they were drawn up.

44. The EAR's letter of 24 July 2007 encouraged the complainant to contact the companies concerned if he wished to have access to the complaints that they had submitted. Quite apart from the fact that the EAR did not provide the complainant with the names and addresses of these companies, the EAR was, in accordance with Article 4(4) of Regulation 1049/2001, clearly obliged to consult the companies itself. Its failure to do so constituted another breach of Regulation 1049/2001.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

45. For the following reasons, the Ombudsman considered that it was neither appropriate nor useful to carry out a detailed point-by-point examination of this part of the case. First, the wording of the EAR's letters to the complainant in this case, and in particular its above-quoted letter of 24 July 2007, suggested that the EAR was simply not aware of the above-mentioned rules and principles laid down in the case-law of the Community courts[9]. To list and scrutinise the EAR's individual grounds for non-disclosure at this point would therefore have been formalistic and artificial. Second, the many procedural corrections that the EAR will have to undertake, in response to the Ombudsman's above-mentioned findings on the first allegation, should greatly help (as they are intended) to produce a more informed and adequate decision on the possibility of granting public access to the documents concerned.

46. In relation to this part, the Ombudsman therefore made the following proposal for a friendly solution:

The EAR could consider examining the possibility of granting public access to the documents, and, if exceptions stated in Article 4 of Regulation 1049/2001 apply, explain the applicability of the relevant exceptions with due regard for the standards laid down in the case law referred to in paragraph 51 of the present proposal, and consider granting partial access in accordance with 4(6) of Regulation 1049/2001.

The arguments presented to the Ombudsman after his friendly solution proposal

47. As noted above on page 2 under 'The Inquiry', the EAR was closed down and the Commission took over the EAR's files. Regrettably, the Commission did not find it possible to submit a reply to the Ombudsman's proposal for a friendly solution until 14 January 2010. Given the circumstances of the case, and the lack of indications that this delay – albeit highly unusual and most unfortunate – caused any specific concrete damage to the complainant's interests, the Ombudsman does not consider it appropriate to carry out a separate detailed inquiry into this issue.

48. The content of the Commission's opinion is summarised in the following paragraphs.

49. In terms of the facts, the Commission referred to two letters in which, first, the EAR and later the Commission invited the complainant to submit a "full and precise" list of the documents to which he wanted public access. In his last reply to the Commission, the complainant referred to his previous related reply to the EAR dated 9 November 2008.

50. In that reply, the complainant described the object of his request as follows:

"The object is:

(a) a letter of 7 October 2002 to the EAR and to the Commission Delegation in FYROM, containing the object-title 'Objection to the decision of the Contract and Procurement Unit of the European Agency for Reconstruction in FYROM';

(b) the reply of 15 October 2002 of the EAR Contract Unit to the letter of 7 October 2002;

(c) a FAX of 30 August 2002 from the EAR, carrying the object-title 'Clarification Request' - Clarification No 1 to Tender Submission';

(d) the reply of 2 September 2002 to the FAX of 30 August 2002."

51. The Commission invited the complainant to submit additional information in order to enable it to identify the above-mentioned documents. The complainant informed the Commission that he did not have any more detailed information, and that he considered the above information to be sufficiently precise.

52. The Commission made the following relevant comments:

53. As the mandate of the EAR expired at the end of 2008, all its files, including the file on the inquiry here concerned, were handed over to the Commission. The Commission Delegation in Skopje, which now handles the files, therefore has no institutional memory of the file, and must rely on the complainant's cooperation in order to identify the documents. Unfortunately, the complainant has not submitted the requested information.

54. As the complainant's request is not sufficiently precise, the Commission is unable to identify the documents. This situation is unsatisfactory for both the complainant and the Commission. Indeed, the Commission regrets that it is not in a position to resolve the issues without the complainant's cooperation.

55. In his observations on the Commission's opinion, the complainant repeated that he did not have any more detailed information, and that he considered the above information to be sufficiently precise.

The Ombudsman's assessment after his friendly solution proposal

56. With regard to the first part of his proposal for a friendly solution, the Ombudsman notes that the EAR, and subsequently the Commission, implemented this part in so far as they contacted the complainant in order to obtain more detailed information so as to identify the documents to which he wanted public access.

57. The information that the complainant provided in response to these requests is quoted above in paragraph 50. The Commission has informed the complainant and the Ombudsman that, on the basis of that information, it cannot identify the documents.

58. The Ombudsman understands that the Commission does not argue that the information provided by the complainant is insufficiently precise specifically within the meaning of Article 6 of Regulation 1049/2001. In other words, the Commission does not argue that the information provided by the complainant is such that his request could legitimately be rejected on the ground that he, the complainant, had merely provided information that would normally make the identification of the document in question impossible or unreasonably difficult for the Administration. Rather, the Commission has stated that, as a matter of fact, it simply cannot identify or find the documents on the basis of the information given to it by the complaint.

59. If this understanding of the Commission's position is accurate, the Ombudsman considers it reassuring at least from a legal point of view. The information provided by the complainant, and quoted in paragraph 50 above, must, by any reasonable standard, be considered sufficiently precise for the purpose of Article 6 of Regulation 1049/2001. Indeed, it is so precise that, in a normal state of record-keeping, the Administration should even be able to conclude that, if it cannot find the documents, it is because they almost certainly do not exist. The fact that this is apparently not possible in the present case would appear to suggest that the record-keeping at the EAR was most unprofessional[10].

60. With regard to the further examination of the present case, the Ombudsman notes that, whereas he has wide powers to inspect and request the Administration's documents, a decision to visit the Administration to search for documents that it itself cannot find, would have to be based on truly exceptional circumstances. In the absence of such circumstances in the present case, the Ombudsman considers that it is not reasonably possible meaningfully to continue his present inquiry.

61. However, the Ombudsman considers it relevant, in light of the facts of the present case, to make a further remark below concerning the existence of public registers.

C. Conclusions

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

1. Various instances of maladministration occurred in the EAR's handling of the complainant's request for public access to documents. Given that the EAR has been closed down, it serves no purpose to issue corresponding critical remarks.
2. The EAR, and by way of follow-up, the Commission, implemented the first part of the Ombudsman's proposal for a friendly solution by asking the complainant to submit additional information in order to identify the documents to which he would like to have public access.
3. The documents are not identifiable, apparently due to a lack of adequate record-keeping by the EAR. The Ombudsman cannot, therefore, meaningfully continue his inquiry.

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

FURTHER REMARK

The facts of the present case demonstrate the usefulness of adequate public registers, and the drawbacks of their absence.

Article 6(2) of Regulation 1049/2001 provides as follows (emphasis added): If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents." Additionally, Article 11 of the Regulation provides that "To make citizens' rights under this Regulation effective, each institution shall provide public access to a register of documents."

Article 11 of Regulation 1049/2001 only refers to 'institutions'. It does not refer to other parts of the EU Administration. However, in their Joint Declaration of May 2001[11], the three main institutions – Parliament, Council and the Commission – adopted the following policy and commitments (emphasis added):

"The European Parliament, the Council and the Commission agree that the agencies and similar bodies created by the legislator should have rules on access to their documents which conform to those of this Regulation. To this effect, the European Parliament and the Council welcome the Commission's intention to propose, as soon as possible, amendments to the acts establishing the existing agencies and bodies and to include provisions in future proposals concerning the establishment of such agencies and bodies. They undertake to adopt the necessary acts rapidly.

2. The European Parliament, the Council and the Commission call on the institutions and bodies not covered by paragraph 1 to adopt internal rules on public access to documents which take account of the principles and limits in this Regulation."

The amending regulations subsequently adopted by the three institutions did not specifically address the issue of public registers for agencies, and the Ombudsman is not aware that the three institutions have examined the extent to which this aspect of the Regulation was implemented by the agencies.

A brief visit to the websites of some of the agencies suggests that the obligation to create public registers has been duly noted – in some cases through corresponding provisions in implementing provisions, and in other cases by the inclusion in documents relating to a transparency policy. However, the availability and/or visibility of public registers in agencies does not appear to be consistent or well-defined. The same appears to apply to other EU bodies that do not fall within the category 'EU agencies'.

In light of the above, the Ombudsman would be grateful if the Commission could provide him with any information that it may have regarding the existence of public registers in "agencies and similar bodies created by the legislator".

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 12 July 2010

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[1] Following the closing down of the Agency end of 2008, the European Commission took over the Agency's files.

[2] Its homepage – which is no longer in use – provided the following information (http://www.ear.europa.eu/agency/main/agency-a1b2.htm):

"The European Agency for Reconstruction is governed by four Council Regulations.

Council Regulation (EC) 2666/2000 of December 2000 established a legal framework for EC assistance for Albania, Bosnia and Herzegovina, Croatia, the then Federal Republic of Yugoslavia, and the former Yugoslav Republic of Macedonia. It is the so-called CARDS Regulation (CARDS - Community Assistance for Reconstruction, Development and Stabilisation). This was complemented by Council Regulation (EC) 2667/2000 of December 2000, which specifically confirmed the ongoing activities of the European Agency for Reconstruction in managing the majority of the activities under the CARDS Programme in Serbia, Montenegro, Kosovo and the former Yugoslav Republic of Macedonia. EC 2667/2000 has subsequently been slightly modified by two other Council Regulations: Council Regulation (EC) 2415/2001 of December 2001 extended the Agency's mandate to cover the former Yugoslav Republic of Macedonia; while Council Regulation (EC) 1646/2003 of June 2003 updated various Agency procedures in line with those of the new Financial Regulation governing all EC assistance worldwide.

Further to these four articles, Council Regulation (EC) No 1646/2003 of 18 June 2003 amending Regulation (EC) No 2667/2000 on the European Agency for Reconstruction introduces Article 13a to the Agency Regulation, which stipulates that Regulation 1049/2001 is applicable to documents retained by the Agency and that the Agency puts in place practical arrangements for its application (see Implementing Rules for access to Agency documents)."

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

[4] In accordance with usual practice, the European Ombudsman's proposal for a friendly solution was not published on the internet.

[5] Cf. the Ombudsman's further remark in case 3697/2006/PB, published on the Ombudsman's homepage: www.ombudsman.europa.eu

[6] See, for instance, Case T-264/04 [2007] WWF v Council ECR II-911, paragraph 50.

[7] See Case T-36/04, API v Commission ECR [2007] II-03201, paragraph 54 (citing cases). The general nature of the statement of reasons on which a refusal of access is based, as well as its brevity or its formulaic character, can be indicative of failure to carry out a concrete examination only where it is objectively possible to give the reasons justifying the refusal of access to each document, without disclosing the content of the document or an essential aspect of it and thereby depriving the exception of its very purpose. See Case T-36/04, cited above, paragraph 67.

[8] Cf. Cases T-110/03, T-150/03 and T-405/04 Sison v Council [2005] ECR II-429, paragraph 59.

[9] The EAR did not, in fact, refer to any case-law either in its replies or in its opinion in the present case.

[10] The complainant's clarifications now also contain a reference to one letter having been sent to the Commission Delegation in FYROM. It appears, however, that the main recipient was supposed to be the EAR. In the present inquiry, which concerns the EAR, the Ombudsman does not consider it appropriate, at this stage, to extend his inquiry into issues concerning documents possibly received and held, in 2002, by a Commission delegation.

[11] OJ 2001, L 173, p. 5: Joint declaration relating to 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 (OJ 2001 L 145, p. 43).