The background

1. In May 2011 the Ombudsman launched a programme of visits to EU agencies with the aim of identifying and spreading best practices used by the agencies in their relations with citizens[1]. These visits are formally carried out on the basis of the Ombudsman's competence to conduct own-initiative inquiries. The visit to Europol took place on 4 June 2012.

2. Europol was set up by Council Decision 2009/371/JHA of 6 April 2009[2], which replaced the previous Europol Convention[3]. The new legal framework came into force on 1 January 2010 when Europol became an EU Agency. Europol is the law enforcement agency of the European Union. Its mission is to support and strengthen action by the competent authorities of the Member States and their mutual cooperation in preventing and combating organised crime, terrorism and other forms of serious crime affecting two or more Member States. More specifically, Europol supports the law enforcement activities of the Member States mainly against illicit drug trafficking, illicit immigration networks, terrorism, forgery of money (counterfeiting of the euro) and other means of payment, trafficking in human beings (including child pornography), illicit vehicle trafficking and money laundering.

3. The Ombudsman opened 13 inquiries involving Europol between 1999 and 2012. Three further inquiries were opened in 2013. The Ombudsman's inquiries thus far have not revealed any possible instance of systemic maladministration by Europol. Rather, they have revealed a willingness on the part of Europol to cooperate with the Ombudsman (including by correcting mistakes, apologising and showing readiness to reconsider problematic issues). One of the aforementioned inquiries (case 2166/2012/BEH) was closed on 10 December 2012 because it was considered more effective to deal with the matters raised in that complaint within the framework of the present own initiative inquiry.

4. Following the visit in this case, the Ombudsman drew up a report[4] in which he made nine suggestions. The Director of Europol responded to these suggestions in detail[5], confirming that there was "evidence of a culture of service at Europol, next to a clear commitment to adhere to the principles of transparency, dialogue and accountability" and that "it will be Europol's objective to keep on striving for efficiency and maintaining high levels of public accountability, while at the same time focussing on core business delivery". In the analysis below, the Ombudsman will examine Europol's replied to his suggestions one by one. the observations of the complainant in case 2166/2012/BEH will also be taken into account in the framework of the present inquiry.

(1) Suggestion to provide a link to the European Code of Good Administrative Behaviour

Europol's reply

5. Europol stated that it amended the section of its website concerning Europol's vision, mission and values by making a reference to the key principles of the Code[6], and by highlighting that Europol is fully committed to the Public Service Principles for the EU civil service as promoted by the European Ombudsman[7].

The Ombudsman's assessment

6. The Ombudsman commends Europol for having included on its website links to both the Code and the Public Service Principles.

(2) Suggestion to make Europol's home page, including basis information, available in all EU languages

Europol's reply

7. Europol stated that key information about Europol's mandate and tasks is available in all EU languages in the following two documents: "Europol Profile" and "The European Investigator - Targeting Criminals Across Borders". These two documents can be found on Europol's website (under Europol Homepage/Media corner/Corporate Publications/Brochures). However, in order to fully address the Ombudsman's suggestion, sections for each EU language are being implemented on Europol's website, at the latest in 2014 when a re-design of Europol's internet portal will be implemented.

The Ombudsman's assessment

8. The Ombudsman notes that, although several Europol documents are available in all EU languages, Europol's website itself is for the moment only available in English. There is in fact no language button available on the website allowing users to switch to other EU languages. The Ombudsman however welcomes Europol's commitment to make sections of its website available in all official languages in the course of 2014.

(3) Suggestion to (a) produce an annual report on the handling of requests for public access to Europol documents, and to (b) establish a public register of documents.

Europol's reply

9. As regards point a), Europol stated that, to date, it has received only a small number of public access requests per year. In order to respond to the Ombudsman's suggestion, Europol will, from the 2013 reporting period onwards, include a new section on public access to documents in the "Europol Review - General Report on Europol activities".

10. As regards point b), Europol stated that it initiated a project to establish a register of publicly accessible documents, which also takes into account the advice obtained from the Office of the European Ombudsman. The gradual implementation of the project has started and is planned for completion by the end of 2013. In this context, Europol will also make available on its website statistics regarding public access requests. The Europol Management Board (MB) Decision of 8 July 2009 on public access to Europol documents will be updated to reflect the outcome of the on-going revision of Regulation 1049/2001 on public access to documents. This update will take place at the latest when the new legal framework for Europol, namely the new Europol Regulation, will enter into force. Article 57 of the current draft Europol Regulation strengthens public access accountability, by specifying that:

- within six months after the entry into force of the Europol Regulation, the Europol MB shall adopt detailed rules for applying Regulation 1049/2001; and

- Europol decisions may be subject of complaints to the European Ombudsman or of actions before the Court of Justice of the EU.

The observations of the complainant in case 2166/2012/BEH

11. The complainant stated that Europol had failed in its reply to refer to the obligation under Article 17 of Regulation 1049/2001 to include in its annual report the number of sensitive documents not recorded in the public register. Also, a reference to the existence of these sensitive documents should be included in the public register. The complainant further pointed out that Europol stated that it would establish a "register of publicly accessible documents", whereas Regulation 1049/2001 refers to a "register of documents".

The Ombudsman's assessment

12. The Ombudsman welcomes Europol's commitment that, from the 2013 reporting period onwards, it will include a new section in its annual report on the handling of requests for public access to documents. The Ombudsman encourages Europol to include in the relevant section the information mentioned in Article 17(1) of Regulation 1049/2001, including the number of sensitive documents not recorded in the register. She therefore makes the further remark below.

13. The Ombudsman also welcomes Europol's project to establish a public register of publicly accessible documents. The Ombudsman already pointed out in point 36 of the report of 28 January 2013 that the register could include a reference to sensitive documents, in a manner which would not identify their content (by, for example, using only a reference number). She notes that Europol has not specifically answered to this suggestion and will make a further remark in this respect. The Ombudsman understands the complexity of the task of setting up such a public register of documents. As her own Office is in the final stages of setting up its public register, she reiterates the offer of assistance to Europol in developing its public register. The Ombudsman expects that Europol will inform her as soon as the register has been set up and will make a further remark in this regard.

14. The Ombudsman also welcomes Europol's commitment that the MB Decision on public access to Europol documents will be updated as soon as possible. She will make a further remark in relation thereto.

(4) Suggestion to bring the Europol MB Decision on Public Access to Documents in line with Regulation 1049/2001 as regards a) the time-limit for dealing with initial and confirmatory requests for access and b) the indication of the possibilities of appeal

Europol's reply

15. As regards point a), Europol argued that the time-limit of 30 days (compared to 15 days in Regulation 1049/2001) was included in the Europol MB Decision on public access because the majority of Europol's documentation is based on information (at least partially) from external cooperation partners. The scrutiny of these documents takes longer as, before taking a decision on granting or refusing full or partial access, Europol has to consult the relevant third parties. Europol however aims at dealing with any public access request as expediently as possible. In relation to the time-limit for replying, Europol will in the future also rely on the provision of Article 6 of Regulation 1049/2001, with a view to finding a fair solution in cases where a decision on public access presents certain complexities.

16. As regards point b), Europol stated that, in line with the current Europol MB Decision on public access, it informs all applicants, in writing, of the possibility to make a confirmatory application. Europol also stated that it will highlight on its website that citizens have the possibility to turn to the European Ombudsman regarding the handling by Europol of their requests for public access.

The Ombudsman's assessment

17. In his report of 28 January 2013, the Ombudsman noted that Europol deals promptly, within one or two weeks, with requests for public access. The Ombudsman also welcomes Europol's statement that it continues to aim at dealing with requests as expediently as possible. Recital 1 of the Europol MB Decision of 8 July 2009 on Public Access to Documents states that, according to Article 45 of the Europol Decision (2009/371/JHA), the MB of Europol shall adopt rules concerning access to Europol documents "taking into account the principles and limitations" of Regulation 1049/2001. One of the principles of the Regulation is that initial and confirmatory requests shall be dealt with within 15 working days. The Ombudsman is not convinced by the argument put forward by Europol that the scrutiny of documents from external cooperation partners (and the need to consult the respective third parties) requires 30 working days (namely six weeks) instead of 15 for dealing with requests for public access to documents. The Ombudsman does not consider that consultation of third parties justifies a general extension of the deadline by 15 additional working days. Regulation 1049/2001 does not envisage an automatic extension of the deadline when a third party needs to be consulted. The interpretation of the Court of Justice (in Sweden v. Commission[8]) of the provisions concerning consultation of Member States also confirms this view. Moreover, the Ombudsman draws Europol's attention to the fact that FRONTEX, an EU agency which referred to the specific and sensitive nature of its tasks and which equally cooperates closely with the Member State authorities, foresees, in its recently adopted decision on public access to documents and in line with Regulation 1049/2001, a 15 working days deadline for dealing with initial and confirmatory applications[9]. The Ombudsman therefore invites Europol to follow that example and to amend its rules in line with the principles of Regulation 1049/2001. She will make a further remark in this regard.

18. As regards the indication of the possibilities of appeal, the Ombudsman welcomes that Europol will indicate on its website that citizens have the possibility to turn to the European Ombudsman regarding the handling of their requests for public access. The Ombudsman however reiterates the suggestion to Europol to indicate the possibilities of appeal also in its future revised MB Decision on public access to documents. The Ombudsman urges Europol to revise its Decision as soon as possible and thus makes the further remark below.

(5) Suggestion to bring Europol's MB Decision on Public Access to Documents in line with Article 4(3) of Regulation 1049/2001

Europol's reply

19. Europol stated that it would take the Ombudsman's suggestion into account when applying the exception of Article 4(3) of the Europol MB Decision on public access to documents. Europol moreover stated that it would take the suggestion on board when revising the Europol MB Decision on public access to documents.

The Ombudsman's assessment

20. The Ombudsman welcomes Europol's commitment to implement this suggestion and urges Europol to revise its Decision as soon as possible.

(6) Suggestion to inform non-shortlisted candidates in selection procedures of the outcome of their application

Europol's reply

21. Europol stated that it updated its Recruitment Guidelines (which are published on its website[10]) to clarify that i) all applications are confirmed by an acknowledgement of receipt and that ii) only candidates invited to attend the selection procedure are subsequently contacted by Europol in the recruitment process. Candidates who are not invited to the selection procedure must consider that their application has been rejected on the date of the Selection Committee's short-listing meeting (which is mentioned in the table of vacancies' status available on Europol's website). Candidates may however request feedback on their application after the date of the short-listing meeting. Europol further stated that it plans to introduce an "e-recruitment" module which will provide information in an automated manner about the outcome of applications, to both shortlisted and non-shortlisted candidates.

The Ombudsman's assessment

22. The Ombudsman notes that Europol has not taken on board the suggestion to also inform non-shortlisted candidates of the outcome of their application. Indeed, point 4.1 of Europol's Recruitment Guidelines, as updated on 28 May 2013, mentions that "due to the large volume of applications received, only candidates invited to attend the selection procedure will be contacted further. Candidates who are not invited to the selection procedure must consider that their application has been rejected on the date of the Selection Committee's short-listing Meeting, as set out in the table of Vacancies' Status available on Europol's website". Europol has thus maintained its earlier policy of not actively informing non-shortlisted candidates of the outcome of their application. Candidates have thus to assume that they have not been shortlisted when they have not been contacted by Europol in the days following the short-listing meeting. The Ombudsman considers that this situation is not fully satisfactory. The Ombudsman is of the view that actively informing non-shortlisted candidates, in a standard letter, would not put a disproportionate burden on the Selection and Recruitment Team. The Ombudsman notes that Europol plans to introduce an "e-recruitment" mode which would provide information in an automated manner to both shortlisted and non-shortlisted candidates. Europol however did not indicate when it plans to introduce the e-recruitment mode. The Ombudsman therefore reiterates the suggestion made and encourages Europol, before the e-recruitment mode is introduced, to already actively inform non-shortlisted candidates of the outcome of their application. She therefore makes the further remark below.

(7) Suggestion to inform candidates, in the Recruitment Guidelines and in the vacancy notice, that they may complain to the European Ombudsman

Europol's reply

23. Europol stated that, following the Ombudsman's suggestion, it amended its Recruitment Guidelines to include a specific section which explains that candidates may complain to the European Ombudsman about alleged maladministration, or file an appeal before the EU Civil Service Tribunal. The Europol Recruitment Guidelines form an integral part of each vacancy notice, given that all applicants are requested to read Europol's Recruitment Guidelines before submitting an application.

The Ombudsman's assessment

24. The Ombudsman notes that point 5.7 of Europol's updated Recruitment Guidelines ("Appeal procedure and complaints to the European Ombudsman") now makes clear that candidates can turn to the Ombudsman or to the Civil Service Tribunal. The Ombudsman thus commends Europol for having taken concrete measures in response to this suggestion.

(8) Suggestion to include in the tender and contract documents and on its website information on the right to complain to the European Ombudsman

Europol's reply

25. Europol stated that it updated the procurement section of its website and included a reference to the possibility to submit a complaint to the European Ombudsman about alleged maladministration. Europol also added a similar reference to the standard tender documentation.

The Ombudsman's assessment

26. The Ombudsman notes that the procurement page on Europol's website now informs tenderers that they may complain to the European Ombudsman[11]. Europol also stated that a similar reference was added to the standard tender documentation. However, and as this was already pointed out in the report of 28 January 2013, the updated "General Conditions applicable to contracts for the purchase of low-value services and supply of goods[12]" do not refer, under Article 20 ("Applicable law and dispute settlement") to the possibility to complain to the European Ombudsman, but only to the possibility to launch court proceedings. The Ombudsman thus concludes that Europol has partly implemented the suggestion. Europol could thus consider amending the General Conditions applicable to contracts to include information on the right to complain to the European Ombudsman. She thus makes the further remark below.

(9) Suggestion to adopt a broad definition of the notion of conflict of interest, including the concept of apparent conflict

Europol's reply

27. Europol stated that, according to its internal policy, a "conflict of interest is defined as an apparent or potential incompatibility between the responsibilities of a person working at Europol and personal interests which could impair professional independence. Europol's business interest is to identify conflict of interest related risks in a pro-active manner, with a view to finding an appropriate resolution".

28. Across Europol, the Deputy Director in charge of the Governance Department has been assigned with the responsibility to assess any possible conflict of interest situation, with a view to finding an appropriate resolution. Given that Europol's policy is a document which contains many internal (administrative) aspects, Europol does not consider the publication of the internal policy as conducive to informing the general public. However, a tailored summary of Europol's approach on handling conflicts of interests is being made available on Europol's website.

The Ombudsman's assessment

29. The Ombudsman notes that, in the framework of the visit, Europol stated that, given the special report by the European Court of Auditors (ECA)[13], on conflicts of interests in EU agencies, it would adopt tailored additional measures in line with the recommendations made by the ECA. The Ombudsman notes that Europol has accepted the suggestion to adopt a broad definition of conflict of interest by referring in its internal policy also to an "apparent" conflict of interest. The Ombudsman notes that Europol's rules on conflict of interests are not yet available on its website. She however welcomes that Europol will make available on its website a summary of how it handles conflicts of interests.

Conclusion

30. On the basis of her examination of Europol's reply, the Ombudsman concludes that Europol has taken appropriate steps to adopt most of the suggestions made in the Ombudsman's letter of 28 January 2013. However, with regard to some of the suggestions relating to public access to documents, the Ombudsman makes the further remarks below. In particular, she encourages Europol to follow the example of Frontex in respect of the deadlines for dealing with requests for access. The Ombudsman underlines the importance of agencies implementing access to documents policies that are consistent with the framework defined in Regulation 1049/2001. The Ombudsman trusts that Europol will reply positively in the follow-up to her further remarks. The Ombudsman therefore closes her inquiry.

Europol and the complainant in case 2166/2012/BEH will be informed of this decision.

Further remarks

The section in Europol's annual report on the handling of requests for public access to documents could include the information mentioned in Article 17(1) of Regulation 1049/2001, including the number of sensitive documents not recorded in the register.

Europol could consider setting up a Public Register of documents as soon as possible. This Register should include at least the references of sensitive documents, in a manner which would not identify their content.

Europol could consider revising, as soon as possible, the MB Decision of 8 July 2009 on access to Europol documents, to bring it into line with Regulation 1049/2001, and this independently from the on-going revision of the Regulation. This revision could concern in particular i) the deadlines for dealing with initial and confirmatory applications, ii) the indication of the possibilities of appeal, and iii) the formulation of Article 4(3) of the MB Decision.

Europol could consider actively informing non-shortlisted candidates of the outcome of their application.

Europol could consider including information on the right to complain to the European Ombudsman in the General Conditions applicable to contracts.

 

Emily O'Reilly

Done in Strasbourg on 11 June 2014

 

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[1] Information on the visits to the EU agencies can be found at: www.ombudsman.europa.eu/activities/visits.faces

[2] Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), OJ 2009 L 121, p. 37.

[3] The Europol Drugs Unit (EDU) started operating already in 1994. The Convention establishing Europol under Article K3 of the Maastricht Treaty ('the Europol Convention') was agreed in 1995 and, after ratification by the Member States, came into force on 1 October 1998. Europol became fully operational on 1 July 1999, after the finalisation of a number of legal acts relating to the Convention.

[4] http://www.ombudsman.europa.eu/en/activities/visitreport.faces/en/49145/html.bookmark

[5] http://www.ombudsman.europa.eu/en/activities/visitreport.faces/en/50704/html.bookmark

[6] https://www.europol.europa.eu/content/page/management-147

[7] https://www.europol.europa.eu/content/page/europol%E2%80%99s-priorities-145

[8] Case 64/05 P Sweden v Commission [2007] ECR I-11389, see in particular paragraph 86.

[9] See the decision of the Management Board of FRONTEX of 19 February 2014 on public access to documents of FRONTEX, available at http://www.ombudsman.europa.eu/en/activities/visitreport.faces/en/54007/html.bookmark

[10] https://www.europol.europa.eu/sites/default/files/publications/1europol_recruitment_guidelines.pdf

[11] https://www.europol.europa.eu/content/procurement. The relevant link to the European Ombudsman does however not seem to work.

[12] "General Terms and Conditions applicable to purchases equal to or lower than EUR 60 000" (LA-CO-638049).

[13] Special Report No 15/2012 "Management of conflict of interest in selected EU agencies", available at: http://eca.europa.eu/portal/pls/portal/docs/1/17186745.PDF