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Decision in case 1286/2017/KM on the European Commission’s handling of a request for access to documents on salary data for civil servants in the Member States of the European Union

Available languages: en
  • Case: 1286/2017/KR
    Opened on 03 Aug 2017 - Decision on 20 Apr 2018
  • Institution(s) concerned: European Commission

The case concerned a request for access to documents held by the European Commission’s statistics department, commonly referred to as Eurostat. The complainant, a journalist, wanted to obtain aggregated data on the salaries paid to civil servants in EU countries.

The Commission granted access to documents relating to 23 countries. It explained that two countries had not provided any data in 2016 and that three countries had objected to the Commission releasing the documents.

The complainant appealed this decision. When he had still not received a formal reply after several months, he complained to the Ombudsman. The Ombudsman inquired into the issue and pointed out to the Commission that Member States do not a have a veto over decisions to grant access to documents they have sent to the Commission.

The Commission then eventually granted access to the documents at issue.

The Ombudsman closed the case as settled.

The background

1. Eurostat is the European Union’s office for statistics. It is part of the European Commission. One of its tasks is to calculate the annual adjustment of the salaries of EU officials. This calculation is based on the development of the salaries of civil servants in the EU Member States. To compile that data from the Member States, Eurostat sends them a so-called Standard Remuneration Questionnaire every year.

2. The complainant is a journalist who was interested in this subject. In December 2016, he thus asked Eurostat for access to documents that contain civil servant data for the Member States.

3. The European Commission replied to this request on 2 February 2017. It stated that it understood the request to cover the 26 replies that Eurostat had received to its Standard Remuneration Questionnaire in 2016. Two countries, Croatia and Romania, had not returned the questionnaire.

4. The Commission had consulted the 26 countries that had completed the questionnaires. It then examined the replies to that consultation, and the documents themselves, and concluded that it could disclose 23 documents. It refused access to the documents sent by three countries (France, the Slovak Republic and the United Kingdom) because the documents related “to matters which have national economic policy implications” and because disclosure would seriously undermine the ongoing decision making process, given the “preliminary and specific character” of the documents. The Commission said that the documents had been “established on the basis of an approved EU methodology which is not necessarily consistent with national practices”.

5. The complainant was not satisfied with this reply. On 10 February 2017, he therefore asked the Commission to review it. Moreover, the fact that 23 countries had not objected to their documents being published showed clearly that his request was reasonable. The complainant noted that the Commission had not reasoned its rejection very well, as it had not given any detail of the “negative national economic policy implications” might materialise. Finally, he argued that in any event, there was a clear public interest in disclosing the information, which relates to salaries paid for by taxes, and that that was more important than the interests which the Commission had argued it needed to protect.

6. The Commission registered the complainant’s confirmatory application on the day it received it but did not respond immediately. Instead, it extended the 15 working day time limit for replying on 23 March 2017, stating that it “took more time than initially foreseen” to consult again with the three countries. However, now that the Commission had obtained a position from each of them, a reply would be finalised and sent for approval. The complainant sent a reminder on 28 April 2017 and received another holding reply on 2 May 2017, stating that the Commission was “still clarifying the position regarding the release of one of the documents requested with its originator” and expected to be able to reply to the complainant “within coming weeks”. It “sincerely apologise[d] for any inconvenience” caused by the “additional delay”.

7. The complainant sent another reminder in mid-May and then, not having received a reply, he sent two further reminders on 27 and 28 June 2017. That day, he received a reply apologising for the delay and explaining that the formal approval process had taken “much more time than we initially expected”. The Commission hoped to be able to send the reply still that week or early the next. The complainant then called the Commission and was told that one country still refused to release the data, but that the Commission considered overruling this country. However, the situation was sensitive because Eurostat relies on the goodwill of Member States to provide relevant data. Despite this telephone conversation, the complainant did not receive a formal reply.

8. On 24 July 2017, the complainant therefore turned to the Ombudsman.  

Allegation of failure to grant access

The Ombudsman's proposal for a solution

9. In his complaint, the complainant maintained the arguments he had made in his confirmatory application. He added that the Commission was “months over the deadline” and claimed that it should apologise and release the documents.

10. The Ombudsman analysed the complaint and the documents which the complainant had submitted. On 3 August 2017, she wrote to the Commission pointing out that it is settled case law that Member States do not have a veto over a decision to grant access, and that decisions not to grant access have to be reasoned based on an exception set out in Article 4 of Regulation 1049/2001, with the risk of a protected interest being undermined having to be reasonably foreseeable and not purely hypothetical.[1] She also noted that twenty-three countries did not have any objections to the release of the data, and that the Commission has had ample time to consult with the three countries that had initially raised objections. She therefore suggested, with a view to solving this complaint that the Commission reply to the complainant.

11. On 10 August 2017, the Commission replied to this letter, forwarding the Ombudsman an email it had sent to the complainant. Attached to it was a copy of its reply to his confirmatory request.

12. The Commission explained that, following the complainant’s request that it review its initial decision, it had again consulted the three countries that had initially raised objections. As a result of this consultation, it was able to grant access to the documents from Slovakia and from the UK.

13. As for the French document, the French authorities maintained their objections and added further explanations why they considered that the document should not be released. Still, the Commission found that, in fact, none of the exceptions of Regulation 1049/2001 applied. It therefore decided to grant access to the document. However, it stated that it would only do so after having given the French authorities ten days advance warning, so as to enable them to bring an action before the General Court. The Commission stated that if France did not respond in these ten working days, the Commission would send the document to the complainant.

14. The Ombudsman’s inquiry team subsequently asked the Commission whether it had received a reply from the French authorities. The Commission thereupon wrote to the complainant to inform him that the French authorities had not objected to the release of the document. It included a copy of the document in that correspondence. It apologised for the “administrative oversight” due to which the document was not sent to the complainant immediately following the expiry of the ten working day time limit. The Ombudsman considers such an apology to have been necessary and appropriate.

15. The Ombudsman concludes from the above that the Commission has taken steps eventually to settle this complaint.

Conclusion

On the basis of the inquiry into this complaint, and noting that the complainant has received all the requested documents, the Ombudsman closes it with the following conclusion:

The complaint is settled.

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

 

Emily OʹReilly

European Ombudsman

Strasbourg, 20/04/2018

 

[1]  Sweden v Commission, EU:C:2007:802 paragraph 58, IFAW Internationaler Tierschutz-Fonds v Commission, EU:C:2012:376, paragraph 57, and Spirlea v Commission, EU:T:2014:814, paragraph 48.