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Decision in case 1199/2016/DR on a failure to reply by the Commission to a request for review concerning public access to “Brexit” related documents

Available languages: en
  • Case: 1199/2016/DR
    Opened on 30 Sep 2016 - Recommendation on 02 Dec 2016 - Decision on 16 Jun 2017
  • Institution(s) concerned: European Commission

The case relates to a matter of procedure: the Commission’s failure to reply to a request for review of its decision to refuse public access to minutes of a Commission meeting concerning the February 2016 deal made between the EU and the UK in the lead-up to the “Brexit referendum” of June 2016.

After the opening of an inquiry by the Ombudsman, the Commission replied to the complainant. The Ombudsman thus considered that the Commission has settled the allegation of failure to reply. The Ombudsman however found that the failure to reply within the prescribed deadlines constituted maladministration. She therefore made appropriate recommendations to the Commission.

The Commission has partly accepted the Ombudsman’s recommendations. It has accepted the recommendations that it should always seek to ensure that it complies with the prescribed deadlines, and that it should explain to an applicant the reasons why it needs to extend the period of time to process an application, if faced with an objective need for doing so. However, the Commission has not accepted the recommendation that, in such cases, it should provide the applicant with an indication of how long it will take to process the application and inform the applicant of the time limit for lodging an appeal before the EU courts. The Ombudsman did not find the reasons put forward by the Commission convincing. She therefore closed the case with the conclusion that the Commission has only partly accepted the Ombudsman’s recommendations.

The background

1. In March 2016, the complainant asked the Commission, on the basis of Regulation 1049/2001[1], to make public minutes of a Commission meeting in which Commissioners discussed Commission “declarations” linked to the February 2016 deal made between the EU and the UK in the lead-up to the “Brexit referendum” of June 2016. The Commission refused to release the minutes. On 17 May 2016, the complainant sought a review[2] of the Commission’s decision. On 8 June 2016, the Commission extended the 15 working day deadline for replying by another 15 working days. Then, on 28 June 2016, it informed the complainant that, because of internal consultations, it was not able to reply within the extended deadline. It apologised for the additional delay.

2. Having still received no reply, on 10 August 2016 the complainant turned to the Ombudsman.

3. The Ombudsman opened an inquiry. On 28 October 2016 the Commission informed the complainant that it would not give him access to the minutes in question since to do so would seriously undermine its decision-making processes[3].

Alleged failure to reply to the request for review

The Ombudsman's recommendation

4. The Ombudsman’s inquiries found that the Commission’s October reply had settled the allegation of failure to do so. The Ombudsman however found also that the Commission committed maladministration by failing to explain the delay and by not informing the complainant when a reply would be sent.

5. On 2 December 2016, the Ombudsman issued the following recommendation: If the Commission is faced with an objective need for an extended period of time to process an application, in conformity with principles of good administration it should explain to the applicant the reasons why this need arises, provide the applicant with an indication of how long it will take to process the application and inform the applicant of the time limit for lodging an appeal before the EU courts.

The Commission should always seek to ensure that it meets the deadlines set out in Regulation 1049/2001 for responding to requests for public access to documents.

6. On 9 March 2017, the Commission gave the Ombudsman its opinion on the recommendation.

7. The Commission told the Ombudsman that it was doing its utmost to respect the deadlines set out in Regulation 1049/2001, and to provide applicants with a final reply as soon as possible. The Commission also acknowledged that, in this case, it took the final decision on the complainant’s request for review four months after the expiry of the extended time limit, as it had done in similar requests for access to UK referendum-related documents[4]. However, the Commission said it had regularly told the complainant about the ongoing processing of his request for review and apologised for the inconvenience caused.

8. As regards the Ombudsman’s recommendation to explain the reasons for an extended period of time to process an application, the Commission stated that, if more time to reply is necessary, the Commission would explain the reasons to the applicants. In the case at hand, the Commission confirmed that, as with similar pending applications, the long delay was due to what it described as the specific and extraordinary circumstances of this kind of requests.

9. One such circumstance was, the Commission said, unprecedented, since it concerned the process of the agreement on a new settlement for the UK, followed by the June 2016 referendum and the expected decision of the UK to withdraw from the EU. In addition to those sensitivities, the requests were for documents containing relevant, confidential deliberations or information.

10. The Commission further explained that the processing of the requests for review of its decisions refusing public access to UK referendum-related documents coincided with a period of organisational change concerning the service responsible for assisting the Commission on the policy issues covered by the requests, i.e. the UK referendum and its follow-up. During the handling of the requests for review, the Commission’s Task Force for Strategic Issues related to the UK Referendum was dissolved[5] and some of their functions were transferred, for a transitional period, to the Secretariat-General. As from 1 October 2016, the Task Force for the preparation and conduct of the negotiations with the UK under Article 50 of the Treaty on European Union ('Article 50 Task Force')[6] took over responsibility for matters relating to the consequences of the UK referendum.

11. As a result of these factors, the Commission said it had needed more time than usual to identify and assess the documents.

12. Concerning the Ombudsman's recommendation to provide the applicant with an indication of how long it will take to process the application, the Commission pointed out that, in cases where it cannot comply with the time limit, the Commission would not be in a position to tell applicants when a final decision would be made, because of the case’s particular sensitivity and complexity.

13. As to the Ombudsman's recommendation to inform the applicant of the time limit for lodging an appeal before the EU courts, the Commission noted that Regulation 1049/2001 clearly states[7] the consequences of a failure by an institution to reply within the prescribed time limit, and the right of an applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman. The Commission also said that the applicant's interest in receiving the widest access possible to the document(s) requested was best served by the handling, as soon as possible, of his/her request for a review of the initial reply. The Commission's practice is therefore to inform the applicant about the available means of redress in its final decision on the request for review. 

14. The Commission also stated that the European Court of Justice generally concludes that there is no need to adjudicate on a claim for annulment of an institution's implied decision refusing access, once the institution has adopted an explicit decision[8]. Furthermore, the annulment of an implicit refusal (in the absence of a delayed explicit decision) does not automatically lead to the release of the documents requested. Seeking redress against an implicit refusal could therefore lead to further delays through the need to draft a defence in parallel with the decision on the request for review. The Commission therefore did not consider it useful to inform the complainant specifically about the available means of redress when it fails to reply within the prescribed time-limit. The Commission said that the applicant’s interest is best served by processing his/her request as soon as possible, and by pointing to the means of legal redress in the decision on the request for review.

15. The complainant did not submit any comments on the Commission’s opinion.

The Ombudsman's assessment after the recommendation

16. The Ombudsman welcomes the Commission's commitment to try to meet the deadlines and to explain the reasons for delays. She also notes that, in this case, the Commission has provided reasonable and convincing arguments - which the complainant did not contest - to explain the reasons for its late reply to his request for review. The Ombudsman therefore considers that the Commission has fully accepted the first part, and partly accepted the second part of her recommendation.

17. The Ombudsman regrets however that the Commission has not accepted her recommendation to provide the applicant with an indication of how long it will take to process the application, when there is an objective need to extend the time limits. Prolonging the uncertainty is not good administrative practice. The Commission should therefore commit itself to providing applicants with a realistic deadline for processing their request for review.

18. The Commission has also rejected the Ombudsman’s recommendation to inform the applicant of the time limit for lodging an appeal before the EU courts. The Ombudsman notes the Commission’s view that Regulation 1049/2001 clearly states the consequences of a failure by an institution to reply within the prescribed time limits and the means of legal redress in such a case. This implies that the Regulation gives the applicants the necessary information, a claimed interpretation that is neither citizen friendly nor completely accurate. The Commission should not presume that the applicants are or should be aware of the possible means of redress or of the deadlines for making use of them. Article 8(3) of Regulation 1049/2001 does not in fact explicitly state the deadlines, but mentions only that the relevant means of redress may be used “under the relevant provisions of the EC Treaty”. Applicants might then be forced to do their own research into this legal matter or seek legal advice. The Commission should instead proactively provide this information to applicants.

19. The Ombudsman does not share the Commission’s view that the interest of the applicants is “best” served by informing them of the means of legal redress only at the stage of its decision on a request for review. On the contrary, since the applicants have a right to institute court proceedings and/or to make a complaint to the Ombudsman where the institution fails to reply to a request for review within the prescribed time limit[9], their interest is best served by knowing at a very early stage that they have these options and the time limits for making use of them[10]. The Commission may understandably prefer that applicants wait for a decision to be taken before turning to the EU Courts, but it is for applicants themselves, not the Commission, to weigh the pros and cons of turning to the EU Courts if the Commission fails to take a decision on their request for review within the legal deadlines.

20. The Commission could, for example, provide the relevant information either when it acknowledges receipt of the request for review, or, at the latest, when it decides (for the first time) to extend the time limit for taking a decision on it. If the Commission does not, some applicants might lose the right to bring an action for annulment of the Commission’s implied negative decision, because the two month deadline provided by Article 263 of the EU Treaty to do so might be missed.

21. As regards the Commission’s fear that this would create additional workload and unnecessary litigation[11], the Ombudsman considers that there is nothing to suggest that applicants would all systematically make use of such a remedy. In any event, the Commission should be ready to accept and deal with the potential consequences of its failure to reply within the prescribed time limits, rather than use this as an excuse for failing to inform applicants of their legal rights at an appropriate time.

22. The Ombudsman therefore considers that the Commission has not provided convincing reasons for its refusal fully to implement the second part of her recommendation, and has failed to make further improvements in its handling of applications for public access to documents. The Ombudsman therefore closes this case with the conclusion that the Commission has only partly accepted her recommendation and that identified maladministration persists. 

Conclusion

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

The Commission has partly accepted the Ombudsman’s recommendation, concerning the requirement to comply with the time limits set out in Regulation 1049/2001 and to explain to the applicant the reasons why it needs to extend them, if it is faced with an objective need to do so.

The Commission has not accepted the remaining part of the Ombudsman’s recommendation and failed to provide convincing reasons for doing so.

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

Emily O'Reilly

European Ombudsman

Strasbourg, 16/06/2017

 

[1] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43–48.

[2] Known as a "confirmatory application".

[3] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's recommendation available at: https://www.ombudsman.europa.eu/en/cases/recommendation.faces/en/73707/html.bookmark

[4] The applicant in one of these requests submitted a similar complaint to the Ombudsman - see case 1429/2016/DR.

[5] The Commission referred to its daily news of 27 June 2016: http://europa.eu/rapid/press-release_MEX-16-2342_en.htm

[6] The Commission referred to its press release announcing the creation of this Task Force: http://europa.eu/rapid/press-release_IP-16-3016_en.htm

[7] In Article 8(3).

[8] The Commission quoted the judgment of the Court of 2 October 2014 in Strack v Commission, Case C‑127/13 P, paragraphs 88 to 91.

[9] Article 8(3) of Regulation 1049/2001.

[10] The Ombudsman has already explained, in her recommendation in this case, that an applicant requires such information in order to make an informed decision as to whether it is in his/her interest to exercise his/her various options including whether to make a complaint to the Ombudsman or an application before the EU Courts (see paragraph 12 of the recommendation - link available in footnote 3).

[11] See point 14 above, referring to the Commission’s view that seeking redress against an implicit refusal of access to documents could lead to further delays engendered by the need to draft a defence in parallel with the decision on the request for review.