The background to the complaint

1. On 23 April 2013, the complainant lodged eighteen[1] requests for access to documents with the European Commission, in accordance with Regulation 1049/2001[2]. The requests concerned documents relating to the procedure which led to the amendment of Regulation 540/2011[3] (namely, meetings, internal documents, legal opinions, correspondence between the Commission and the European Food Safety Agency) and, more generally, to the use of neonicotinoids pesticides.

2. On 13 June 2013, the Commission informed the complainant that it did not hold any documents falling under three of the requests.

3. As regards the other requests, the Commission stated that they covered a very large number of documents, many of which originated from third parties and Member States. In the circumstances, the individual assessment of the documents could not be carried out within the time limits set in Regulation 1049/2001. The Commission invoked Article 6(3) of the Regulation^[4]and asked the complainant whether it could narrow the scope of the requests, so as to reduce them to a manageable number of documents. Alternatively, the Commission offered to process the requests in stages and to send the complainant, at intervals which were to be defined later, batches of documents cleared for release or detailed reasons for refusing disclosure. The Commission suggested grouping the requested documents into five categories in order to facilitate their processing, and asked the complainant to identify those which it regarded as a priority.

4. The complainant took the view that its requests for access were entirely reasonable and that a large number of the requested documents should have been provided already. It refused to narrow its requests and "reluctantly" accepted the Commission's proposal of gradual disclosure. It stated that it expected to be granted access to 3 of the 5 batches within 10 working days, and to the remaining 2 within 20 working days. It also warned the Commission that it would inform the European Ombudsman of the delays it was experiencing in securing access to the relevant documents.

5. The Commission agreed to give precedence to the three batches that the complainant identified. However, it considered that the requested deadlines were not reasonable, given the number of documents and the need for individualised assessment. The Commission pointed out that where the volume of work involved in processing the applications is likely to undermine the functioning of its services, it has to balance the interest in public access with the interests of good administration^[5]. In the Commission's view, a balanced solution would have consisted in sending the complainant the requested documents (or detailed justification for the refusal of access) between 31 July 2013 and 30 November 2013[6].

6. The complainant disagreed with the Commission's proposal and submitted a confirmatory application. The Commission's Secretariat-General rejected it as devoid of purpose, since it did not refer to a partial or total refusal of disclosure. The Secretariat-General also considered that the timetable proposed by the Commission's services was not unreasonable in light of the number of requested documents, the need to consult with third parties and the heavy workload of the Commission's services.

7. Dissatisfied with this outcome, the complainant contacted the European Ombudsman in October 2013.

The inquiry

8. The Ombudsman opened an inquiry into the complainant's allegations that the Commission failed  (i) to provide the requested documents within reasonable deadlines and (ii) to reply to the initial application within the applicable deadline and to inform the complainant that it intended to extend that deadline and the reasons for this extension. The inquiry also concerned the complainant's claim that the Commission should apologise for its procedural failures and disclose the requested documents without further delay.

9. In the course of the inquiry, the Ombudsman received the Commission's opinion on the complaint and, subsequently, the complainant's observations on the Commission's opinion. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Alleged failure to provide the documents within reasonable deadlines and related claim 

Arguments presented to the Ombudsman

10. The complainant considered that the Commission could not rely on Article 6(3) of Regulation 1049/2001, which provides for informal discussions with the applicant, in order to unilaterally extend the time limits imposed by Articles 7 and 8 of the Regulation. In the absence of an agreement between the Commission and the complainant, the Commission was bound to respect the time limits set in Article 7. Despite the complainant's good will and good faith in engaging with the Commission, such an agreement could not be found because the time limits proposed by the Commission were neither fair nor reasonable.

11. In fact, according to the complainant, the Commission's imposed solution led to the last batch of requested documents being released as late as seven months after the request for public access to documents. The complainant argued that this situation amounts to unnecessary delays, in breach of Articles 17 and 23(1) of the European Code of Good Administrative Behaviour, and of Regulation 1049/2001. It suspected that the delay might have been motivated by the Commission's intention to hinder the complainant's making use of the relevant documents. Had the Commission adhered to the type of time limit already accepted in another case by the EU Courts[7], namely, of fifteen working days per batch, most of the requested documents would have been received in time to allow the complainant to use them for its legitimate purposes.

12. The Commission stated that the complainant's requests were drafted in very broad terms and covered a vast number of documents. Some of them contained personal data and others appeared to fall under the exceptions laid down in Regulation 1049/2001. Moreover, in some cases, consultations with third parties had to take place in order to decide whether or not access should be granted. Given that the "administrative burden in handling [them] by the unit in charge threatened to undermine the execution of that unit's core functions", the Commission needed to find a way to "address the workload, while accommodating the complainant's requests".

13. On 22 May 2013 the Commission extended the time limit for replying to the initial application, as allowed by Article 7(3) of Regulation 1049/2001. The additional time was necessary "to engage in the identification and collection of the relevant documents". It subsequently engaged with the complainant to find a fair solution in accordance with Article 6(3) of the same Regulation. The Commission took the view that, while the complainant agreed to receive the requested documents in batches, it nevertheless "insisted on very tight deadlines" which the Commission did not consider reasonable because "the search and collection of the documents was very time consuming, owing to the fact that the requests were extremely broad. Further time was still needed to assess the content of the documents, consult third parties, Member States and other Commission's services and carefully blacken the documents due to personal data and/or other exceptions".  Moreover, the Commission's internal procedures require cooperation between several units and necessarily take time, particularly if disclosure is rejected.

14. Therefore, the Commission proposed another timetable to the complainant, bearing in mind the order of preference the latter had established. The Commission adhered to that timetable and, by the date of its opinion, it had already provided the complainant with either access, or reasoned refusals of access, to all the requested documents.

15. The Commission considered it had acted reasonably, and in good faith, whereas the complainant had shown "no willingness to cooperate in good faith in order to reach a compromise". It "simply refused the timetable proposed and did not even try to cooperate in order to find a fair solution taking into account the burden of work caused by [its] multiple requests". The Commission pointed out that the complainant did not even respond to the Commission's invitation to contact it should the complainant have any questions on the proposed timetable.

The Ombudsman's assessment

16. Article 6(3) of Regulation 1049/2001 allows the institutions, in circumstances in which a request for access concerns "a very large number of documents", to "confer with the applicant informally, with a view to finding a fair solution".

17. The Commission sought to use the "fair solution" process, under Article 6(3), to negotiate the making of decisions, on a staggered basis, outside of the time limits otherwise specified in Regulation 1049/2001. The Ombudsman notes that, following an exchange of divergent views on the timetable for a staggered disclosure, the complainant lodged a confirmatory application with the Commission's Secretariat-General, in which it challenged that timetable. This application clearly indicates that the complainant had abandoned the informal discussions under Article 6(3) of Regulation 1049/2001 and refused the Commission's proposal for a solution.

18. The complainant considers that, consequently, the Commission was bound to abide by the restrictive time limits imposed by Articles 7 and 8 of the Regulation. At the Ombudsman's explicit request, the Commission clarified in its opinion that, in its view, in such cases it "has the possibility to postpone the tight deadlines of the Regulation, provided it has explained the specific circumstances and proposed a reasonable time frame", particularly in cases where the applicant has not shown a willingness to cooperate.

19. At the time the Commission was dealing with this case, the General Court of the European Union had already held, on this specific issue, that Regulation 1049/2001 "does not contain any provision expressly enabling the institution, in the absence of a fair solution agreed with the applicant, to suspend the deadlines provided for in Articles 7 and 8 even if the institution's proposal is reasonable in the given case"^[8]. Moreover, while the Ombudsman's inquiry was underway and after the Commission had already disclosed the relevant documents in accordance with the proposed timetable, the Court of Justice[9] gave its appeal judgment in this case and clarified that the fair solution provided for in Article 6(3) "can concern only the content or the number of documents applied for"[10].  The Court of Justice went on to say that "reliance on the principle of proportionality[11] cannot allow the time-limits laid down by Regulation No 1049/2001 to be changed without creating a situation of legal uncertainty"[12] (emphasis added in both quotations). 

20. The Court's position ruling out the possibility of extending, through Article 6(3), the time-limits set in Regulation 1049/2001 is based on legal certainty arguments. Indeed, the period within which an applicant may bring an action for annulment against a negative decision is fixed, and its starting point needs to be calculated precisely. However, it is always open to an applicant to seek an amicable agreement with the institution concerned regarding the extension of the time limits, so long as they are aware that this may involve foregoing the right to take court action in the event of a negative outcome outside the prescribed time limits. Such applicants would, however, retain their right to complain to the Ombudsman, which is one of the means of redress explicitly provided for by Regulation 1049/2001.

21. In the case at hand, in strictly legal terms, the Commission was not entitled to extend the time frame established in Regulation 1049/2001. In practice, nevertheless, it sought to do so[13].

22. The Ombudsman's assessment of a complaint, however, goes beyond purely legal arguments and includes considerations of reasonableness, fairness and good faith. From this perspective, an applicant who agrees on a "fair solution" with an institution accepts that it is not reasonable to expect a comprehensive decision within the statutory time limits. In these circumstances, the institution's failure to decide on access in relation to all of the requested documents within the statutory time limits cannot be regarded as maladministration. The question thus arises, whether, in cases in which there has not been any agreement on a "fair solution", as in this case, an institution's failure to decide the access application within the statutory time limits, necessarily amounts to maladministration.

23. In most circumstances, the answer to this question would be positive. This is particularly the case, for example, where the failure of the institution is the result of an unreasonable delay or reflects a general lack of respect for the transparency principle represented by Regulation 1049/2001.  On the other hand, there will be circumstances in which a failure to give a decision within the statutory time limits is unlikely to amount to maladministration. This would be the case where the institution has acted in good faith and where there is good reason for not having decided on the application within the statutory time limits. This could arise where there is a heavy administrative burden placed on the institution because of the number of applications made simultaneously by the applicant, or because of the number of documents sought, or because of the complexity of the decision making process in the particular case, or any combination of these factors. 

24. The only issue for the Ombudsman, therefore, is whether the Commission's failure to decide on the applications within the statutory time limits constituted maladministration. For the reasons set out in the following paragraphs, the Ombudsman concludes that the Commission's failure does not amount to maladministration.

25. First, the Ombudsman notes that the complainant's requests were drafted in very broad terms and referred, for instance, to "all correspondence", "all documents", "all internal and external correspondence", "all correspondence with third parties", and "all documents, room documents, transcripts, unabridged minutes and sound recordings". As the Commission submitted, this meant, in fact, that the complainant requested access to any documents directly and indirectly connected with the drafting of Regulation 485/2013. The effort required to identify, classify and gather the necessary documents thus seems considerable.

26. Second, while the Commission initially considered that the requests covered 169 documents, it eventually turned out that 293 documents fell within the request. They each required an individualised assessment in order to ensure that they did not fall within any of the applicable exceptions under Regulation 1049/2001. It is particularly relevant that, unlike in case T-2/03[14], which both parties have cited, in this case, the Commission showed full willingness to individually assess each requested document, in line with the spirit of Regulation 1049/2001, and eventually did so. Moreover, from the lists of documents accompanying the Commission's disclosure decisions, it is not immediately evident that the documents in question were not covered by any exception, as the complainant argued.

27. Third, in fact it appears from the Commission's decisions granting access that in each batch, several documents were covered by one or more exceptions. Thus, parts of them needed to be redacted and explanations needed to be provided to the complainant in this regard.

28. Fourth, 69 of the requested documents originated from, and thus required consultations with, third parties, including Member States, third countries and the European Food Safety Agency. In the normal course, the Ombudsman expects that EU institutions will ensure that such consultations do not prevent them from respecting the time limits established by Regulation 1049/2001. In this case, however, the Ombudsman accepts that the number of documents and of third parties that needed to be consulted could indeed have required additional time.

29. It follows from the above that the Commission's proposal for a staggered disclosure was reasonable. This remains the case notwithstanding the clarification given by the Court of Justice (see Paragraph 19 above) that engaging on a "fair solution" does not have the effect of suspending or changing the statutory time limits for deciding on access applications.

30. In all the circumstances of this case, therefore, the Ombudsman finds that there was no maladministration on the part of the Commission arising from its non-compliance with the statutory time limits for deciding on access applications.

Alleged failure to reply to the initial application within the deadline and to request an extension and the claim for an apology

Arguments presented to the Ombudsman

31. In the opinion, the Commission stated that, as it registered the complainant's requests on 29 April 2014, the deadline for providing access to the documents in accordance with Article 7 of Regulation 1049/2001 expired on 24 May 2013. Prior to that date, on 22 May 2013, the Commission informed the complainant, in accordance with Article 7(3) of the Regulation, of the need to extend by fifteen working days the deadline for replying to sixteen of those requests, since large files had to be examined in order to retrieve the requested documents. The new deadline for releasing the documents was therefore 14 June 2013.

32. On 13 June 2013, the Commission informed the complainant that it did not hold the documents falling under three of the requests, and requested the complainant's cooperation to negotiate a fair solution. The Commission pointed out that the complaint as made to the Ombudsman omitted any reference to the Commission's letter extending the deadline for replying in accordance with Regulation 1049/2001.

The Ombudsman's assessment

33. The documents provided with the complaint suggested that, between the date the requests for access were lodged and the Commission's invoking of Article 6(3) of Regulation 1049/2001, the Commission had not provided the complainant with any information about the status of its requests and, in particular, had not informed it of its intention to extend the fifteen working days deadline for replying to its initial applications. However, the Commission's opinion has adequately clarified the matter, showing that it did act in accordance with Regulation 1049/2001 when extending the relevant deadlines and in informing the complainant accordingly, as it was legally required to do.

34. Therefore, no further inquiries into the second allegation are necessary and no apologies are due. 

Pro-active disclosure of legislative documents

35. Article 12 of Regulation 1049/2001 deals with the provision of direct access to certain types of documents without the need for individuals to make specific access applications.  Article 12.2 specifies, in particular, that "legislative documents" should be made "directly accessible". Article 12.2 defines "legislative documents" as "documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States". At least some of the documents sought in the complainant's applications were documents relating to the procedure which led to the amendment of Regulation 540/2011 (see Paragraph 1). That Regulation is one which is "legally binding in or for the Member States". On the face of it, some of the documents sought by the complainant are "legislative documents" which Article 12 of Regulation 1049/2001 specifically identifies as a type of document which should be made directly accessible. Had the Commission made these documents directly accessible, it would have been unnecessary (for the most part, at any rate) for the complainant to have made specific access requests under Regulation 1049/20001.  While this was not an issue raised explicitly by the complainant, the Ombudsman considers that it is appropriate to address it by way of a Further Remark.

Conclusion

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

There was no maladministration in the present case.

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

Further Remark

The European Commission should consider how best it can ensure appropriate and consistent compliance with the requirement of Article 12.2 of Regulation 1049/2001 that "legislative documents" be made directly accessible to the public.