The background to the complaint

1. The present complaint concerns ECHA's refusal to provide access to the declarations of conflict of interest submitted by the members of the selection boards in two selection procedures organised by ECHA.

2. The complainant, a candidate in the two selection procedures organised by ECHA, requested access to a number of documents related to these procedures, using the "access to documents" web-form that is accessible on the Agency's website[1].

3. On 29 May 2012, ECHA informed him that his request had been treated "outside the Access to Documents procedure, within the framework of the selection procedures you participated to". It added that ECHA had to take into account the secrecy surrounding the proceedings of selection boards and the obligation to state reasons for its final decisions. Based on the balancing of interests, ECHA decided to grant the complainant access to the following documents: Nomination of Selection Boards, Telephone interview report by consultant, Assessment centre report by consultant, Interview evaluation. It rejected the complainant's request for access to the declarations of conflict of interest on the ground that these documents contain confidential information[2].

4. On 1 June 2012, the complainant lodged a confirmatory application regarding ECHA's refusal to give access to the declarations of conflict of interest.

5. By letter of 27 June 2012, ECHA rejected the complainant's request. ECHA re-qualified the complainant's confirmatory application as a "request for review". It stated that all the documents requested were related to the proceedings and deliberations of the selection boards, and that Regulation 1049/2001 did not apply to them. It added that the General Court had ruled that the secrecy of the proceedings of selection boards is to be considered as a lex specialis derogating from the general rules on access to documents. In its view, the rules on the confidential nature of the selection procedure preclude the application of Regulation 1049/2001. ECHA went on to note that the complainant was entitled to have access to a number of documents on the basis of his right to receive further information following a negative decision in a selection procedure as well as to access the data processed about him on the basis of Regulation 45/2001.

6. The complainant then turned to the Ombudsman.

The subject matter of the inquiry

7. The complainant alleged that ECHA failed to handle properly his request for access to the declarations of conflict of interest, which were submitted by the members of the selection boards.

8. In support of his allegation, he argued that the requested documents contain information which would enable him to check whether there was any actual or potential conflict of interest between the members of the selection boards and specific candidates, and whether such conflicts were actually declared.

9. The complainant claimed that ECHA should give access to the requested documents.

The inquiry

10. On 29 August 2012, the Ombudsman requested ECHA to submit an opinion on the complaint. He also asked ECHA (i) to clarify the reasons why it considers that Regulation 1049/2001 does not apply to a request for access to the declarations of conflict of interest of members of selection boards; and, (ii) to take a position as to whether it considers that one or more of the exceptions provided for in Regulation 1049/2001 could justify a complete or partial refusal of access to the declarations in question. In addition, the Ombudsman considered it necessary to inspect the declarations of conflict of interest submitted by the members of the selection boards, pursuant to Article 3(2) of the Statute of the European Ombudsman[3] and Article 5(2) of the Decision of the European Ombudsman adopting Implementing Provisions[4].

11. On 13 November 2012, ECHA submitted its opinion. It also provided the Ombudsman with copies of the declarations of conflict of interest for inspection. Since ECHA regards these documents as confidential, they were not made available to the complainant[5]. The complainant submitted his observations on ECHA's opinion on 9 January 2013.

12. On 20 June 2013, the Ombudsman made a proposal for a friendly solution to ECHA which submitted its reply on 5 and 25 July 2013. The complainant presented his views on 23 and 27 July 2013.

The Ombudsman's analysis and conclusions

Preliminary remarks

13. At the outset, the Ombudsman notes that the purpose of his inquiry is not to examine whether there was any conflict of interest on the part of members of the relevant selection boards or to question ECHA's policy for managing conflicts of interests. The sole purpose of the Ombudsman’s inquiry is to examine ECHA's decision not to disclose the requested documents in light of the applicable legal rules and the principles of good administration. The Ombudsman also notes that, although the complainant's initial request included a number of documents relating to the selection procedures in question[6], the present inquiry only covers the handling of the complainant's request for access to the declarations of conflict of interest.

A. Alleged failure properly to handle a request for public access to a document and related claim

Arguments presented to the Ombudsman

14. In its opinion, ECHA maintained its approach that Regulation 1049/2001 does not apply with regard to the declarations in question. In particular, it considered that the requested documents were very closely related to the proceedings and deliberations of the selection boards and were, therefore, protected from disclosure pursuant to Article 6 of Annex III to the Staff Regulations. In its view, "declarations of interest are personal assessments performed by individual members of the selection panel with regards to specific candidates. Thus, by disclosing the documents concerned, ECHA would end up divulging the personal attitudes of individual members of the selection board".

15. In the alternative, ECHA argued that, in case Regulation 1049/2001 applied, the documents would be covered by the exception provided by Article 4(1)(b) (protection of personal data). In particular ECHA noted that the documents concerned contain personal data, namely the names and signature of members of the selection boards and information on their personal relationships with the complainant and other candidates. It further argued that, due to the fact that some of the members of the selection boards had worked with the complainant, the entire contents of their declarations could not be disclosed to the complainant as this would reveal the personal data of the authors.

16. ECHA invoked the Bavarian lager judgment[7] to further argue that the complainant did not provide any justification as regards the necessity of having the personal data in question transferred to him. It went on to say that without any express justification, ECHA was not at that time in a position to weigh up the various interests of the parties and verify that there was no reason to assume that the data subjects' legitimate interests might be prejudiced. It stated that it was only in his complaint to the Ombudsman that the complainant explained that he needed the requested documents to verify the existence of conflicts of interests. ECHA added that by receiving the names of the selection board members, the complainant already held the necessary information to make such an assessment as the documents concerned contained only information on the professional relationships between some members of the selection boards and the complainant.

17. The complainant stated that ECHA's decision to keep the declarations confidential significantly limits the transparency of the whole selection process, as the candidates and the public are not allowed to check which conflicts have been declared and to identify potential interests that have not been declared. He noted that, although ECHA has published on its website the declarations of interests signed by its staff, its senior managers, Committee members, and observers, it has decided that the declarations of the members of the selection board are confidential and should not be disclosed to the general public or even to the candidates.

18. The complainant also argued that, contrary to ECHA's submissions, the declarations in question are prior to, and therefore independent of, the selection board proceedings and deliberations, and not covered by Article 6 of Annex III of the Staff Regulations. The complainant also challenged ECHA's argument that the declarations do not contain any additional information than what is already known to him, namely information on the different professional relationships between some members of the selection boards and the complainant. In the complainant's view, if the information was already known to him, there was no confidential information that should be kept secret.

19. In relation to ECHA's alternative justification based on personal data protection, the complainant argued that ECHA had not previously invoked this argument, and, thus, he had not been given the opportunity to make any observations in that regard. He added that due to the context of his request, the reasons why he wanted access to the requested data were evident for ECHA. In his view, even if the requested declarations contain personal data, the legitimate interest of the public and the candidates to be informed of circumstances that could be perceived as potential conflicts of interests should prevail.

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

20. The Ombudsman noted that the complainant submitted a request for access to documents under Regulation 1049/2001, which is applicable to documents held by ECHA by virtue of Article 118(1) of the REACH Regulation[8]. ECHA based its refusal to disclose the requested documents on two main arguments. First, according to ECHA, the requested documents were covered by Article 6 of Annex III of the Staff Regulations which is a lex specialis in relation to Regulation 1049/2001. Second, even if Regulation 1049/2001 applied, its refusal to disclose the documents would still be justified under Article 4(1)(b) of that regulation. The Ombudsman examined successively these arguments.

(i) Applicability of Regulation 1049/2001

21. The Ombudsman first noted that the purpose of Regulation 1049/2001 is to give the fullest effect to the right of public access to documents and to lay down the general principles and limits on such access. Access should in principle be granted to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union. In the context of a selection procedure, candidates have an individual right to ask for certain documents in the context of their participation in that selection procedure. As regards their right of public access under Regulation 1049/2001, the EU courts have identified certain limits.

22. Article 6 of Annex III to the Staff Regulations stipulates that: "The proceedings of the Selection Board shall be secret". The Court of Justice has ruled on several occasions that this provision constitutes a lex specialis in relation to Regulation 1049/2001 and may, thus, limit or exclude the latter's application. In particular, in Le Voci the Court stated that:

"122. Like any general rule, the right of access to Council documents provided for in the provisions cited above may be limited or excluded - according to the principle that a special rule derogates from the general rule (lex specialis derogat legi generali) - where there are special rules governing specific matters.

123. In that regard, it should be observed that Article 6 of Annex III to the Staff Regulations, adopted on the basis of Article 283 EC, and which specifically lays down the procedure for competitions, provides that '[t]he proceedings of the Selection Board shall be secret'. As the Court of Justice has already had the occasion to point out, that secrecy was introduced with a view to guaranteeing the independence of Selection Boards and the objectivity of their proceedings, by protecting them from all external interference and pressures whether these come from the Community administration itself or the candidates concerned or third parties. Consequently, observance of that secrecy runs counter to divulging the attitudes adopted by individual members of Selection Boards and also to revealing all the factors relating to individual or comparative assessment of candidates (Case 89/79 Bonu v Council [1980] ECR 553, paragraph 5; Parliament v Innamorati, paragraph 18 above, paragraph 24; and Martínez Páramo and Others v Commission, paragraph 101 above, paragraph 44).

124. It follows that the applicant cannot validly rely on the concept of transparency in order to call in question the applicability of Article 6 of Annex III to the Staff Regulations (Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 84).[9]

23. The Ombudsman noted that, in the present case, ECHA interpreted this case-law as allowing it not to apply Regulation 1049/2001 to the complainant's request for access to the declarations of conflict of interest. According to ECHA, the requested declarations were very closely related to the proceedings and deliberations of the selection boards and were, therefore, protected from disclosure.

24. The Ombudsman was not convinced that this was indeed the correct approach in this case. As the Ombudsman has already stated, Article 6 of Annex III to the Staff Regulations does not introduce a general principle of secrecy in selection procedures or a general derogation from the principle of transparency. In the Ombudsman's view, a distinction needs to be made between disclosure of the views expressed by the individual members of a Selection Board and of any other information related to a selection procedure. While it is true that information that could result in divulging the views expressed by individual members of Selection Boards, or in revealing factors relating to the individual or comparative assessment of candidates, is covered by Article 6 of Annex III, the same does not apply to each and every document relating to a given selection procedure[10].

25. In fact, in all the cases where the Court of Justice has so far concluded that the requested documents were covered by the principle of secrecy of the proceedings of Selection Boards, the applicants sought to obtain access to their corrected written tests or evaluation of these tests by the selection boards. However, the complainant in the present case does not wish to be given access to such documents. Instead, what the complainant sought to receive were the declarations of conflict of interest submitted by the members of the Selection Boards. In the Ombudsman's view, these documents do not contain, and their disclosure cannot reveal, the attitudes adopted by individual members of the Selection Board in relation to the individual or comparative assessments of candidates. What these documents contain is information provided by members of the selection boards in which the latter explain whether they consider that they find themselves in a conflict of interest on account of the personal or professional relationships that they may have had with some candidates. He further noted that ECHA itself merely claimed that the relevant declarations were 'very closely related' to the proceedings and deliberations of the selection boards. In the Ombudsman's view, ECHA itself was not convinced that disclosing these documents could reveal the attitudes adopted by individual members of the selection board in relation to the individual or comparative assessments of candidates.

26. In addition, these documents were submitted with a view to ensuring the Selection Board's objectivity, independence and credibility. They are part of ECHA's policy for proactively managing conflicts of interests[11]. According to ECHA's policy, all individuals working for ECHA have an obligation to declare any interests that could be considered to be prejudicial to their independence. These declarations are entered in a register which is accessible to the public, on request, at the Agency's offices. In addition, declarations made by members of the ECHA bodies and by the Executive Director are published on its website. In light of the above, the Ombudsman's found it difficult to understand how full or partial disclosure of the requested declarations could prejudice the independence of the Selection Boards, given that the sole purpose of such declarations is precisely to guarantee the objectivity and impartiality of the members of Selection Boards.

27. In light of the preceding considerations, the Ombudsman concluded that ECHA's decision to consider that the complainant's request was outside the scope of Regulation 1049/2001 was not convincing.

(ii) The exception under Article 4(1)(b)

28. ECHA argued, in the alternative, that should Regulation 1049/2001 apply, its refusal to disclose the requested documents is justified under Article 4(1)(b), since the requested documents contain the names and signatures of members of the selection boards and information on their personal relationships with the complainant and other candidates.

29. In that regard, the Ombudsman noted that when dealing with requests for public access to documents which also contain personal data, the institutions should indeed take into consideration the relevant provisions of Regulation 45/2001[12], and in particular Article 8(b) thereof. More specifically, according to the case-law, a person wishing to be given access to such personal data (the 'recipient') has to demonstrate, by providing express and legitimate justifications, the necessity for the requested personal data to be transferred to him, so that the EU institution concerned is then able to weigh up the various interests of the parties concerned, and to determine whether there is any reason to assume that the legitimate interests of the data subjects might be prejudiced by the transfer of those data[13]. A certain burden is, therefore, imposed upon the recipient to provide reasons for his request. Failure to provide such reasons allows the institution to refuse the transfer of the data, without having to proceed to a detailed analysis of the conflicting interests at stake.

30. It goes without saying, nevertheless, that in order to be able to comply with this burden, the recipient should have been offered the possibility to provide reasons for his/her request. Regulation 1049/2001 establishes a two-level administrative procedure that gives applicants this possibility. In fact, in cases of access to documents containing personal data, the ordinary course of the procedure under Regulation 1049/2001 implies that if the institution rejects the applicant's initial application invoking the exception relating to personal data protection, the applicant is then entitled to submit a confirmatory application and put forward grounds in order to demonstrate the necessity for the requested data to be transferred to him. Subsequently, the institution has to decide on the confirmatory application, after having proceeded to the balancing exercise required by Article 8(b) of Regulation 45/2001.

31. In the present case, and as stated above, ECHA did not handle the complainant's request under Regulation 1049/2001. As a result, it did not invoke, at that stage, the exception under Article 4(1)(b) to justify its refusal to grant access to the requested documents. It only referred to this exception after the Ombudsman expressly requested it to consider the complainant's request in light of Regulation 1049/2001. Therefore, the complainant was not given the possibility to demonstrate the necessity for having the requested personal data transferred to him before ECHA rejected his confirmatory application for access.

32. Having said that, the Ombudsman noted, nevertheless, that in his complaint to the Ombudsman, the complainant did provide a reason for his request by referring to his intention to "control whether there was any actual or potential conflict of interest between the members of the selection boards and specific candidates and whether such conflicts were actually declared". In its opinion, ECHA briefly commented on this justification. More specifically, it expressed doubts about the complainant's real motives, and argued that as far as the declarations concerned other candidates, disclosure would not have allowed him to assess the existence of conflicts of interests since the complainant was not supposed to know which candidates participated in the selection procedure. As far as the documents concerned conflicts of interest between members of the selection board in relation to himself, ECHA argued that "by receiving the names of the selection board members the complainant already held the necessary information to make such an assessment, as the documents concerned only contained the professional relationships between some members of the selection boards and the complainant".

33. In the Ombudsman's view, ECHA's above statements did not appear to be adequate to justify why the transfer of the requested data would have been detrimental to the privacy of the data subjects. The Ombudsman recalled that, according to the Court of Justice's judgment in Egan and Hackett, if an institution decides to refuse access to a document which it has been asked to disclose, "it must explain how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4(1)(b) of Regulation No 1049/200 [...] Such an explanation cannot therefore consist of a mere assertion that access to certain documents would undermine privacy within the meaning of Article 4(1)(b) of Regulation No 1049/2001"[14]. In that case, the Court of Justice considered that Parliament had failed to set out, to the requisite legal standard, the reasons for which it refused access to the documents requested, because it failed to explain "why the names that the applicants seek constitute personal data, disclosure of which would infringe the privacy interests of the individuals concerned, under the terms of Regulation No 45/2001 and Article 4(1)(b) of Regulation No 1049/2001[15]". In the Ombudsman's view, a future balancing exercise by ECHA should, likewise, seek to establish why the data requested by the complainant constitute personal data and why their disclosure could undermine the privacy of the individuals concerned.

34. The Ombudsman also drew ECHA's attention to the European Data Protection Supervisor's (the 'EDPS') views on the consequences deriving from the Bavarian Lager ruling for the processing of personal data by the EU institutions[16]. According to the EDPS, the institution concerned should try to contact the individuals whose personal data were contained in the requested documents, with an eye to obtaining their agreement to the disclosure of their personal data. Such a step is necessary in order for the institution to take a well-informed decision. In this respect, the Ombudsman recalled that in Bavarian Lager, the Court of Justice considered that the Commission was right, first to verify whether the data subjects had given their consent to the disclosure of their personal data before asking Bavarian Lager to establish the necessity of such a transfer[17].

35. In light of the above, the Ombudsman made the preliminary finding that ECHA did not handle the complainant's request in line with the applicable rules and the relevant case-law. In particular, ECHA should have assessed the complainant's request under Regulation 1049/2001 and properly ascertained whether full or partial access could be granted to the relevant documents under that Regulation. In accordance with Article 3(5) of the Statute of the European Ombudsman, he made the following proposal for a friendly solution:

Taking into account the Ombudsman's findings, ECHA could handle the complainant's request for access to the declarations of conflict of interest in accordance with Regulation 1049/2001.

36. In order to assist ECHA in implementing the said proposal, the Ombudsman considered it useful to draw its attention to three further points.

37. First, in his observations the complainant made it clear that he is not interested in declarations by members of the selection boards concerned that led to these members not being allowed to serve on the selection boards. His request thus only concerns declarations that did not lead to the members who made them being replaced.

38. Second, the relevant declarations arguably concern personal data relating to (i) the members of the selection board who made the declarations and (ii) other candidates. As regards the complainant himself, ECHA has drawn his attention to the fact that a document disclosed under Regulation 1049/2001 is also available to any third party. Given that the complainant has nevertheless made it clear that he wishes to be given access to these documents under Regulation 1049/2001, ECHA would, in the Ombudsman's view, be entitled to take the view that the complainant has thus unequivocally agreed to the transfer of the personal data concerning himself that are contained in the said documents both to himself and to any third party that may ask for public access to these documents in the future.

39. Third, if after a thorough assessment of the complainant's request ECHA were to arrive at the conclusion that no access could be given to personal data concerning other candidates, it would obviously have to consider the possibility of granting partial access.

The arguments presented to the Ombudsman after his friendly solution proposal

40. In its reply to the Ombudsman's proposal, ECHA informed him that by letters of 5 and 25 July 2013 it had disclosed to the complainant all the requested documents.

41. The complainant expressed his satisfaction and thanked the Ombudsman for his intervention.

The Ombudsman's assessment after his friendly solution proposal

42. The Ombudsman welcomes ECHA's constructive approach and applauds its readiness rapidly to take all necessary measures to settle the issue to the complainant's satisfaction. He further wishes to thank ECHA for its active cooperation during the course of the present inquiry. He concludes that the issue has been settled to the complainant's satisfaction.

B. Conclusion

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

ECHA has taken all necessary measures to settle the issue to the complainant's satisfaction.

The complainant and ECHA will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 28 August 2013

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[1] http://echa.europa.eu/web/guest/access-to-documents-web-form

[2] It noted that such declarations were indeed submitted to it and were properly reviewed by the appointing authority.

[3] http://www.ombudsman.europa.eu/resources/statute.faces#hl2

[4] http://www.ombudsman.europa.eu/resources/provisions.faces

[5] Article 13.3 of the Implementing Provisions

[6] The Ombudsman notes that the complainant received a number of documents to which he was entitled as an unsuccessful candidate.

[7] Case C-28/08 P Commission v Bavarian Lager [2010] ECR I-6055

[8] Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, OJ L 396, 30.12.2006, p. 1–849 . See also Decision on the implementation of Regulation (EC) No 1049/2001 adopted by the ECHA Management Board on 23 April 2008.

[9] Case T-371/03 Vincenzo Le Voci v Council of the European Union [2005] ECR SC I-A-209.

[10] Decision of the European Ombudsman closing his own-initiative inquiry OI/4/2012/CK concerning the European Centre for the Development of Vocational Training (Cedefop), paragraph 24.

[11] http://www.echa.europa.eu/documents/10162/13608/mb_45_2011_d_policy_conflict_interest_en.pdf

[12] Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ 2001 L 8, p. 1.

[13] Case T-82/09 G.J. Dennekamp v European Parliament, judgment of 23 November 2011, not yet reported in the ECR, paragraph 30; Case C-28/08 P Commission v Bavarian Lager, cited above.

[14] T-190/10, Egan and Hackett v. Parliament, judgment of 28 March 2012, not yet reported in the ECR, paragraphs 90-91.

[15] T-190/10, Egan and Hackett v. Parliament, cited above, paragraph 92.

[16] Paper published by the European Data Protection Supervision on Public access to documents and data protection http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Papers/BackgroundP/11-03-24_Bavarian_Lager_EN.pdf

[17] Case C-28/08 P Commission v Bavarian Lager, cited above, paragraphs 75 and 77.