The background to the complaint

1. The inquiry concerns a request for public access to documents made under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (Regulation 1049/2001)[1].

2. The complainant represents an information technology company, Company X. The complaint arose in the context of a EuropeAid Programme contract[2] financed by the European Commission. The Ministère de la Justice et des Droits de l'Homme[3] (the 'MJDH') of Country Z was the 'beneficiary' designated by the European Commission. Company X won the tender organised by the MJDH. It then entered into a contract with the authorities of Country Z.

3. As a result of a dispute in relation to the contract, the complainant requested the European Commission to give it access to all data, documents, e-mails, correspondence, reports, meeting minutes, internal memos and any other material relating to Company X, the contract or the authorities of Country Z.

The subject matter of the inquiry

4. The Ombudsman opened an inquiry in relation to the allegation and the related claim that the Commission wrongly failed to disclose, and should disclose, in accordance with Regulation 1049/2001, the minutes of all its meetings with the MJDH and all the correspondence it exchanged with the MJDH (or any third party) in relation to Company X and the contract.

The inquiry

5. The complaint was submitted to the Ombudsman on 15 February 2010. The Ombudsman opened his inquiry on 23 April 2010. The Commission sent its opinion to the Ombudsman on 13 July 2010. The opinion was forwarded to the complainant, which submitted observations on 29 September 2010.

The Ombudsman's analysis and conclusions

Allegation of failure to give public access to documents and related claim

Arguments presented to the Ombudsman

6. In its opinion, the Commission stated that, on 21 October 2009, Company X requested the European Union's Delegation in Country Z (the 'Delegation') to give it public access, pursuant to Regulation 1049/2001, to "all data, documents, emails, correspondences, reports, meeting minutes, internal memos, any other material related to [this] company, [its] contract and [its] relations with the awarding authority". The Commission went on to state that, in view of the "general character" of the request, the Delegation asked Company X, by letter dated 28 October 2009, to submit a sufficiently precise request so as to enable it to identify the documents asked for. The Commission stated that the Delegation repeated this invitation by letter dated 6 November 2009. According to the Commission, Company X did not reply to this request for clarification. Instead, by letter dated 14 January 2010, it repeated its request to the Delegation to provide it with "copies of all the correspondence sent and received by the Commission (including internal memos) on [its] case". By letter dated 12 March 2010, the Director-General of EuropeAid reaffirmed to Company X that "the Delegation has shown its full availability to provide [Company X] with any specific official document [it] would request".

7. The Commission argued that, according to Article 2(4) of the Ombudsman's Statute, a complaint must be preceded by appropriate administrative approaches to the institutions and bodies concerned. The administrative procedure to follow when requesting public access to documents is set out in Regulation 1049/2001, in particular in Articles 6 to 8 thereof. According to Article 6 of Regulation 1049/2001, applications have to be made in a sufficiently precise manner to enable the institution to identify the document. The Commission believes that, in view of the high number of documents and types of documents requested, the request formulated by Company X on 21 October 2009 to give access to "all data, documents, emails, correspondences, reports, meeting minutes, internal memos, any other material related to [this] company, [its] contract and [its] relations with the awarding authority" cannot be considered to be sufficiently precise. The Commission's invitations to the complainant to submit the necessary clarifications were, the Commission argued, not taken up. In the Commission's view, Company X simply repeated its request to have access to "all the correspondence sent and received by the Commission (including internal memos) on [its] case", without providing any additional information.

8. The Commission went on to argue that, due to this lack of precision, it was impossible for it to start handling the request under the administrative procedure foreseen in Regulation 1049/2001. The Commission further argued that the rights of the applicant and the time limits set out in Articles 7 and 8 of Regulation 1049/2001, including the right to make a complaint to the Ombudsman, apply only if the request is sufficiently precise to enable the institution to identify and assess the documents concerned by the request.

9. Since, in the Commission's view, there was no valid request for access to documents, because the request was not sufficiently precise, the second letter of Company X dated 14 January 2010 cannot be interpreted as a confirmatory application. The Commission noted that the subject of this second letter was different. It also argued that the wording of the request did not refer to the preceding correspondence, nor did it ask the Commission to reconsider an allegedly total, partial or even tacit refusal of access to documents. Finally, had it been a confirmatory request, Company X, which is fully aware of the provisions of Regulation 1049/2001, would have certainly addressed it in a timely manner to the Secretary-General of the Commission, who is competent to take decisions on confirmatory applications.

10. For the above reasons, the Commission believes that the requirements of Article 2(4) of the Ombudsman's Statute are not met. It thus requested the Ombudsman to declare the complaint inadmissible.

11. The Commission went on to state that, following Company X's letter dated 21 October 2009, requesting access to documents, the Delegation replied in a timely manner, thus respecting the deadlines of Regulation 1049/2001 and the Code of Good Administrative Behaviour for Commission staff. Additionally, in a spirit of service-mindedness, the Commission services invited Company X for a second time to clarify its request. This invitation was subsequently repeated by the Director-General of Europe Aid. At no time, the Commission argued, did it refuse Company X access to documents. The Commission regrets that, due to the lack of sufficiently precise information submitted by Company X, the Delegation was unable to identify the documents in order to manage Company X's request in a satisfactory way. It went on to state that, notwithstanding the fact that the request is still not precise enough for its services to handle it accurately and exhaustively, the Commission, acting in a spirit of good cooperation and as a concrete gesture, attached to its opinion a list of notes exchanged between the beneficiary country and the Delegation concerning the contract.

12. In its observations, the complainant first pointed out that the Commission's opinion only dealt with the issue of access to documents, and not with the other allegations and claims it had made. The complainant did not make any specific observations concerning the arguments put forward by the Commission in relation to the issue of access to documents.

The Ombudsman's assessment

13. The Ombudsman notes the complainant's insistence that his present inquiry should be extended to cover the other allegations and claims made by the complainant in relation to the contractual dispute between Company X and the authorities of Country Z. The Ombudsman underlines that the scope of the present inquiry only covers the issue of the alleged refusal to grant Company X' request for public access to documents. It does not deal with any other allegations and claims made by the complainant in his complaint (see footnote 2 above).

14. In its letter dated 21 October 2009, Company X requested access, under Regulation 1049/2001, to "all data, documents, emails, correspondence, reports, meeting minutes, internal memos, and any other material related to our company, our contract and our relations with the awarding authority." The Ombudsman considers that this was a request for access to documents within the meaning of Article 7 of Regulation 1049/2001. However, the Ombudsman also agrees that the scope of the request was unclear and open ended. The reference to "any other material related to our company" is especially open-ended. Since the Commission did not fully understand the nature and scope of the application, it was, according to the Regulation, obliged to ask the applicant to clarify the application and to assist the applicant in doing so[4].

15. The Ombudsman notes that the Commission's letter dated 28 October 2009 acknowledges the receipt of Company X' application for public access to documents. The letter reads as follows:

"... concerning your request for access to documents, we confirm our availability to provide you with all necessary assistance based on any well-formulated and precise demands from you."

The Ombudsman also notes that the suggestion to Company X to submit a sufficiently precise request so as to enable the Commission to identify the requested documents was the correct step for the Commission to take.

16. In its letter of 14 January 2010, Company X stated the following

"We also take the opportunity to kindly ask you to inform us on all the contacts that the Commission had with the MJDH in relation to our company and our contract, in particular their agenda and minutes. We would also like to ask you to provide us with copies of all the correspondence sent and received by the Commission (including internal memos) on our case."

The Ombudsman notes that the first sentence of this excerpt is unclear, particularly the reference to "all the contacts that the Commission had with the MJDH in relation to our company". Indeed, the scope of that request would also seem to cover access to information, and not simply access to documents. The Ombudsman considers, however, that the second part of the excerpt, namely, the reference to "copies of all the correspondence sent and received by the Commission … in relation to the case" was sufficiently precise to allow the Commission to process the request for all correspondence it sent and received in relation to the case. Therefore, the Commission should have, within 15 working days of 14 January 2010,[5] responded to Company X' initial application for "copies of all the correspondence sent and received by the Commission … in relation to the case". According to Article 7(4) of Regulation 1049/2001, failure by the institution to reply within the prescribed time limit shall entitle the applicant to make a confirmatory application under Article 8 of Regulation 1049/2001.

17. Article 2(4) of the Ombudsman's Statute states that a complaint must be preceded by the appropriate administrative approaches to the institutions and bodies concerned. The appropriate administrative approaches to follow when requesting public access to documents are set out in Articles 7 and 8 of Regulation 1049/2001. In the Ombudsman's view, he cannot conduct an inquiry into an allegation that an institution has refused public access to a document until the complainant has made a confirmatory application under Article 8 of Regulation 1049/2001 and that application has either been rejected (wholly or partially) or the institution has failed to reply within the time periods set out in Article 8[6].

18. Taking due account of the analysis set out above, the Ombudsman notes that there is no information in his file concerning this case indicating that Company X made any request for access to documents subsequent to its letter dated 14 January 2010. The Ombudsman must thus conclude that Company X did not make any confirmatory application within the meaning of Article 8 of Regulation 1049/2001. As such, and in so far as its allegation that it was refused public access to the documents is concerned, Company X cannot be deemed to have made the appropriate administrative approaches to the institution concerned, pursuant to Article 2(4) of the Ombudsman's Statute.

19. In light of the above, the Ombudsman takes the view that it is appropriate to close his inquiry into the complainant's allegation that the Commission wrongly refused to grant Company X public access to the documents in question. In doing so, he notes that the 15 working day period allowed to the Commission in order to respond to Company X' initial application of 14 January 2010 has expired without the Commission adopting a decision in relation to that initial application[7]. According to Article 7(4) of Regulation 1049/2001, failure by an institution to reply within the prescribed time limit shall entitle the applicant to make a confirmatory application. The Ombudsman notes that, while an applicant is required to make a confirmatory application within 15 working days of any express refusal to grant public access under Article 7(2) and Article 7(3) of Regulation 1049/2001, no such deadline applies as regards a failure by an institution to respond to an initial application. An applicant that becomes entitled under Article 7(4) of Regulation 1049/2001 to make a confirmatory application (because he/she has not received a reply within the prescribed time limit) is not required to introduce a confirmatory application within any given time period. Company X can thus introduce that confirmatory application at any time. As such, Company X remains entitled to introduce a confirmatory application in relation to the documents identified in its letter dated 14 January 2010.

20. In addition, Company X remains entitled to clarify its initial application, with a view to extending it to cover additional documents. In this respect, the Ombudsman notes that the Commission annexed to its opinion in the present case a list of notes exchanged between the Beneficiary Country and the Delegation concerning the contract. In the event Company X were to clarify its initial application in light of this list, the Commission should process that application in accordance with Article 7 of Regulation 1049/2001.

21. While closing the present inquiry, the Ombudsman notes that Article 7(1) of Regulation 1049/2001 states that an application for access to a documents shall be handled promptly. This implies that the application should be dealt with in the shortest time frame possible. In this context, the Ombudsman is of the view that, if part of an initial application is sufficiently precise to allow an institution to process it, the institution should immediately commence its processing thereof. If the institution concerned fails to do so within the periods of time set out in Article 7 of Regulation 1049/2001, the applicant becomes entitled to make a confirmatory application under Article 8 of Regulation 1049/2001. The Commission did not respond to the letter dated 14 January 2010, either by giving access to the requested documents within 15 working days, or by providing the applicant with a reason why more time was required to deal with the initial application. Furthermore, the Commission did not inform Company X, pursuant to Article 6(2) of Regulation 1049/2001, that it still needed clarification as regards part of the request for public access. Nor did it offer to assist Company X to clarify the application after it received the letter dated 14 January 2010. In this context, the Ombudsman will make a further remark.

B. Conclusion

The Ombudsman closes his inquiry with the following conclusion.

No further inquiries are justified as regards the allegation that the Commission wrongly refused access to the requested documents

Further remark

If the Commission takes the view that a request for public access to documents is not sufficiently precise, it should inform the applicant of its view and assist the applicant in clarifying its request. Once a request for public access has been sufficiently clarified, the Commission should immediately commence its processing thereof. If only part of a request for public access has been clarified, the Commission should immediately commence processing that part of the request.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 30 November 2010

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

[2] The complainant also made a number of additional allegations and claims in its complaint. However, the Ombudsman did not find sufficient grounds to open an inquiry into these other allegations and claims. The complainant was informed accordingly.

[3] In English, the "Ministry of Justice and Human Rights".

[4] Article 6(2) of Regulation 1049/2001 states that "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." The Ombudsman underlines that the fact that an application for access to documents is not sufficiently precise to allow the institution concerned to commence its analysis does not imply that the application ceases to be an "application for access to documents" within the meaning of Regulation 1049/2001. Since an imprecise application is, nonetheless, an "application for access to documents" within the meaning of Regulation 1049/2001, the institution concerned must still send an acknowledgement of receipt to the applicant pursuant to Article 7(1) of Regulation 1049/2001.

[5] The Ombudsman is of the view that the 15 working days do not commence until an initial application has been sufficiently clarified.

[6] This is the case because, when faced with a refusal to provide public access to a document after an initial application under Article 7 of Regulation 1049/2001, or when faced with a failure to reply to an initial application, an applicant seeking public access to a document always has a remedy available to him or her, which is to make a confirmatory application. An applicant that does not make use of this remedy in such circumstances cannot be deemed to have made the appropriate administrative approaches to the institution concerned pursuant to Article 2(4) of the Ombudsman's Statute.

[7] The Ombudsman is of the view that the 15 working days did not commence until an initial application had been sufficiently clarified. Thus, that period, which commenced on 14 January 2010, ended on 5 February 2010. The Commission did not make a request to extend this period by an additional 15 days under Article 7(3) of Regulation 1049/2001. The complaint was submitted to the Ombudsman on 15 February 2010.