Strasbourg, 19 December 2006

Dear Mr B. and Mr B.,

On 7 November 2005, you made a complaint to the European Ombudsman against the European Commission concerning your complaint, under Article 226 of the EC Treaty, against Spain, registered under reference 2003/4781, SG(2002) A/3222/2.

On 8 December 2005, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 10 April 2006. I forwarded it to you with an invitation to make observations, which you sent on 25 June 2006.

You contacted my services by telephone on 24 July 2006.

I am writing now to let you know the results of the inquiries that have been made.

To avoid misunderstanding, it is important to recall that the EC Treaty empowers the Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.

The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the Commission.

THE COMPLAINT

Background to the complaint
Complaint 1769/2002/(IJH)ELB against the Commission and OLAF

The complainants are the directors of a company, Blue Dragon 2000, set up in Catalonia, which was to receive funds from the Community Initiative Leader II in the Region of Catalonia. The relevant part of this Community programme was managed by the Catalonian regional authorities and by the private-sector Local Action Group. In autumn 2000, the complainants informed OLAF and the regional authorities of their suspicions of fraud relating to Leader II funds that were intended to benefit their company.

On 9 March 2002, the complainants lodged a complaint with the European Commission against Spain concerning problems in the management, the control and the distribution of Community funds in the framework of the Community Initiative Leader II in the Region of Catalonia.

On 26 June 2002, the complainants received a reply from the Commission to their letter. The Commission’s reply showed that their complaint of 9 March 2002 had been treated as ordinary correspondence.

On 9 October 2002, the complainants submitted a complaint to the European Ombudsman. They alleged that the Commission and OLAF had failed to deal properly with their allegations of fraud and that the system of distribution of Leader II funds through private-sector bodies, as well as inadequate controls by the Commission, had facilitated the fraud. The complainants claimed that they should be publicly exonerated, that they should receive restitution of what had been stolen from them, and that they should receive compensation for the economic and immaterial damage they had suffered.

As regards the complaint against the Commission, the Ombudsman considered that the Commission should have registered the letter as a complaint under Article 226 of the EC Treaty. On 26 June 2003, he addressed a draft recommendation to the Commission requesting it to re-examine the complainants’ letter and deal with it in accordance with the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(1) (the "Commission Communication").

In its detailed opinion, the Commission indicated that the Commission's Directorate-General for Agriculture ("DG AGRI") requested the Secretariat-General of the Commission to register the letter from the complainants dated 9 March 2002 as a complaint. On 29 July 2003, the Secretariat-General sent an acknowledgement of receipt to the complainants. On 31 July 2003, DG AGRI also wrote to the complainants to confirm that their letter had been registered as a complaint and to request their authorisation to indicate their names in the request for information that was to be sent to the Spanish authorities.

On the basis of his inquiries, the Ombudsman concluded that the Commission had accepted the Ombudsman's draft recommendation and that the measures taken by the Commission to implement it were satisfactory. Accordingly, on 12 March 2004, the Ombudsman closed the complaint, insofar as it was directed against the Commission.

The present complaint: 3489/2005/ELB

On 29 July 2003, the Secretariat-General informed the complainants that their complaint had been registered under reference 2003/4781, SG(2002) A/3222/2. This was confirmed by DG AGRI on 31 July 2003.

On 15 December 2003, DG AGRI informed the complainants that information had been requested from the Permanent Representation of Spain to the European Union.

On 23 February 2004, DG AGRI informed them that the Spanish authorities requested an extension of the deadline of one month.

On 26 April 2004, DG AGRI informed them that the Spanish authorities' reply was received on 25 March 2004 and that it was being translated.

On 23 July 2004, following the Ombudsman's recommendation, the complainants sent to the Commission an in-depth analysis of their case, as well as additional documents.

On 19 October 2004, they received an acknowledgement of receipt of their documents from DG AGRI, which went on to state that it had been decided to postpone the examination of their file until the next meeting of the Commission, that it would be impossible to deal with the file within the one-year deadline, and that the examination was still ongoing.

On 2 December 2004, DG AGRI informed the complainants that, following the examination of the replies of the Spanish authorities dated 23 March 2004, additional information had been requested from them.

On 11 March 2005, the complainants were informed that the reply from the Spanish authorities had been received on 23 February 2005 and was being examined by DG AGRI.

Following that date, the complainants received no information from the Commission. They did not understand why delays had occurred at all stages of the Commission's inquiry (request for additional information and extensions of the deadlines granted to the Spanish authorities). They considered these delays to be improper. They argued that the delays showed that their allegations were grounded and confirmed the errors of the Spanish authorities and the Commission.

The complainants expressed their surprise that the Commission did not request further information from them. They argued that they should have been notified of the content of the Commission's questions to the Spanish authorities. They stated their belief that, once more, the Commission would come to a conclusion on their file without giving them access to their file. They alleged that the Commission had failed to inform them of the replies of the Spanish authorities.

On 8 December 2005, the Ombudsman opened an inquiry into the complainants' allegations about:

1. an improper delay by the Commission in the handling of their complaint registered under reference 2003/4781, SG (2002)/A/3222/2; and
2. failure by the Commission to provide information on the replies from the Spanish authorities. Relatedly they argued that they should have been notified of the content of the Commission's questions to the Spanish authorities.

THE INQUIRY

The Commission's opinion

The Commission's opinion can be summarised as follows:

Alleged improper delay by the Commission in the handling of the complaint

The Commission recalled that Article 8, paragraph 1, of the Commission Communication provides for the general rule according to which the Commission investigates complaints with a view to arriving at a decision as to whether to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint by the Secretariat-General. The following paragraph provides for the possibility to exceed the time-limit. The Commission pointed out that the time-limit in question was not peremptory and that the Commission Communication provides for the possibility to exceed it.

In order to assess the time needed for the handling of the present file, the Commission considered that the following information should be taken into account. The formal investigation of the complaint started after its registration in July 2003 and the receipt from the complainants of their authorisation, at the beginning of September 2003, not to treat the file confidentially. The file is extensive and complex, as clearly shown by the number of pages and annexes. Moreover, the arguments raised by the complainants are particularly varied, requiring, among others, assessments regarding Community law and third-party contractual relationships. According to the complainants' allegations, all the reports dealing with Blue Dragon and with them pertain to criminal law. This complex reasoning thus required a particularly in-depth analysis to be carried out from different perspectives.

During the investigation, two requests for information were sent to the Spanish authorities, on 15 December 2003 and 2 December 2004. These two letters are particularly detailed, in order to adequately present the complainants' allegations. Annexes are attached to them. The replies from the Spanish authorities and their annexes are also very detailed. Each of these letters required an in-depth and thorough examination of the file, preparation of a draft, modifications of this draft, consultation of concerned services within DG AGRI and relevant services in other Directorates-General, assessment of the contributions from these services and subsequent modifications of the draft. Furthermore, there were delays due to the need for translation and the need to extend the deadlines for the Spanish authorities' replies. Finally, the sensitivity of the file, the requests for information received by the Commission from other institutions, and the coverage of this issue by the media implied that the Commission had to deal with this file with particular care.

The information provided to the complainants deals with the Commission's activities vis-à-vis external parties, but not with internal procedures. On 19 October 2004, the Commission informed them that the one-year time-limit would be exceeded.

The Commission noted that the complainants pointed out the delay in the Commission's handling of the file, in light of the time that had elapsed between the second reply from the Spanish authorities (25 March 2005(2)) and the date of their complaint with the Ombudsman (7 November 2005). The Commission apologised for this delay and assured them that the handling of their file had not been neglected and that it continued in accordance with the above-mentioned rules. The Commission indicated that the examination of the file was nearly completed and that the complainants would be informed of the Commission's position as soon as possible and according to the applicable rules.

Allegations concerning the refusal and the lack of information

The Commission pointed out that no prior administrative approaches were made by the complainants as regards these allegations, while Article 2(4) of the Ombudsman's Statute requires that such prior administrative approaches be made before a complaint is submitted to him.

The Commission noted that the complainants' allegations deal with access to information about the content of the questions asked by the Commission to the Spanish authorities and not with access to the replies from these authorities. The Commission recalled Article 7, paragraph 1, of the Commission Communication, which states that the Commission will contact the complainants and inform them in writing, after each Commission decision (formal notice, reasoned opinion, referral to the Court or closure of the case), of the steps taken in response to their complaint. In this context, the Commission indicated that various letters were sent to the complainants (15 December 2003, 23 February 2004, 26 April 2004, 19 October 2004, 2 December 2004 and 11 March 2005) informing them, even above and beyond the requirements of the Commission Communication, of the progress made with their file.

Furthermore, the Commission noted that the complainants never requested access to the correspondence with the Spanish authorities. However, the Commission noted that these letters were part of the preliminary investigation phase of a complaint according to Article 226 of the Treaty. The procedure is still ongoing and the Commission has taken no decision on this file. Consequently, the exception provided for in Article 4, paragraph 2 of 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(3) ("Regulation 1049/2001") is likely to apply, as the communication of the letters, at this stage, might endanger the continuation and the outcome of the investigation. The Commission recalled the established case-law which deals with the confidentiality which the Member States are entitled to expect of the Commission during investigations which may lead to an infringement procedure(4). It considered that all letters and information that the Spanish replies contain are covered by the above-mentioned exception, which does not allow for partial access. Moreover, the Commission believed that, in this case, the overriding public interest is the trust between the Commission and the Member State concerned to find a solution in this file.

The possibility for an individual to bring a civil action in the context of criminal proceedings is governed by national law , with its own rules and prerogatives. It cannot be applied by analogy to the procedure applying to infringement procedures dealt with by the Commission.

As regards the letters sent to the Member State concerned, the Commission did not accept that the information that it provided to the complainants could be questioned without any proof.

The Commission considered that it has some discretion as regards the complementary information that it could request from the complainants and as regards when this could be possibly requested. The complaint and the information provided seem to be sufficiently detailed for the Commission to consider it appropriate, up until now, to contact the Member State rather than the complainants. It noted that, when necessary, it provided the complainants with clarification on specific aspects of the file (letter dated 12 December 2003).

As regards the complainants' concern that the file might be closed without their being informed, the Commission noted that it was premature to take a stand and recalled that, as the Ombudsman indicated in his decision of 17 March 2004 concerning the same complainants, the Commission Communication contains procedural guarantees for the complainants.

In conclusion, the Commission considered that the complaint was not grounded and that the second allegation appeared to be inadmissible.

The complainants' observations

The complainants' observations can be summarised as follows:

On 12 April 2006, the complainants received from the Commission a summary of DG AGRI's findings. The complainants sent a reply to the Commission on 9 May 2006. They still considered that the Commission's actions entailed unjustified delays.

As regards the abundant information provided by the complainants, the complainants considered that such information was useful for the Commission and most of it had already been sent to it in the framework of complaint 1769/2002/(IJH)ELB. They concluded that, as of 29 July 2003, the Commission had had all the necessary elements at its disposal. Moreover, they provided DG AGRI with an analysis of what happened in Spain. This analysis is the basis of the legal proceedings launched in Spain. The complainants did not understand why the Commission justified its delay by referring to the replies it provided to other institutions and to the media. They wondered how it could provide information to third parties while the preliminary phase of its investigation ended on 12 April 2006. They did not understand why the Commission informed other parties about the proceedings but did not inform them, on the grounds that doing so could endanger the continuation of the investigation. They also did not understand why the Commission did not ask them to help it in identifying mistakes and wondered why there was no adversary discussion between the Spanish authorities and themselves.

The complainants asked the Ombudsman to take into account their reply to the Commission dated 9 May 2006, in which they were of the opinion that they proved that there had been a double payment of a European subsidy, one part of which had been paid in France to an unidentified third party.

The complainants attached to their observations a copy of the Commission's letter dated 12 April 2006, in which the Commission stated that the Spanish Ministry of Agriculture had taken the necessary steps to recover the EU funds paid to the Local Action Group and that, therefore, the conditions were not met for it to initiate an infringement procedure against Spain. The Commission concluded that the file would be closed and invited the complainants to make observations within four weeks. Finally, the Commission apologised for the delay in the handling of the file.

The complainants also attached to their observations to the Ombudsman a copy of their observations sent to the Commission on 9 May 2006 by their legal representative. The complainants indicated their opposition to the decision to close the file. The letter was copied to their lawyer and to a Member of the European Parliament.

THE DECISION

1 Preliminary remarks

1.1 On 8 December 2005, the European Ombudsman opened an inquiry into two allegations made by the complainants in their complaint with the Ombudsman. The part of his opening letter which defines the second allegation reads as follows: "failure by the Commission to provide information on the replies from the Spanish authorities. Relatedly [the complainants] argued that they should have been notified of the content of the Commission's questions to the Spanish authorities".

In its opinion on the complaint, the European Commission indicated, inter alia, that the complainants' allegations deal with access to information about the content of the questions asked by the Commission to the Spanish authorities and not with access to information about the replies from these authorities. The Ombudsman would like to clarify that this is not the case, since at the end of the complaint (page 3, "CONCLUSION"), the complainants asked the Ombudsman to find maladministration on the part of the Commission "pour refus et absence d'information sur les éléments obtenus via les autorités espagnoles dans le cadre de la gestion de [leur] plainte ...".

1.2 In its opinion, the Commission also challenged the admissibility of the second allegation of the complainants, considering that no prior administrative approaches had been made. In this regard, the Ombudsman, first, notes that the complainants' allegation suggested that the Commission should have provided them with information on its correspondence with the Spanish authorities, without a relevant request on their part. Hence, the submission of the Article 226 complaint would seem to be, in this context, sufficient for the fulfilment of the "appropriate prior administrative approaches" admissibility condition. Moreover, the Commission's opinion also addressed this allegation in substance. For these reasons, the Ombudsman will proceed with the examination of the merits of this allegation.

1.3 The complainants attached to their observations a copy of a Commission's letter dated 12 April 2006. In this letter, the Commission's Directorate-General for Agriculture ("DG AGRI") stated that the Spanish Ministry of Agriculture took the necessary steps to recover the EU funds paid to the Local Action Group and that, therefore, the conditions necessary in order to initiate an infringement procedure against Spain were not met. It concluded that the file would be closed and invited the complainants to make observations within four weeks. By letter of 9 May 2006, the complainants sent comments, which concerned (i) the Commission's opinion on (the procedural issues raised in) the present complaint; (ii) the Commission's letter of 12 April 2006 (namely, its position on the substance of their Article 226 complaint and its intention to close the file). In their observations on the Commission's opinion, the complainants asked the Ombudsman to take into account their above-mentioned letter to the Commission. The Ombudsman notes that this letter, as to its aspect (ii), refers to matters which do not fall within the scope of the present inquiry (concerning the procedure of the Commission's handling of the Article 226 complaint). Moreover, he does not find it appropriate to extend his present inquiry to these matters. Nevertheless, the complainants may consider filing a new complaint with the Ombudsman, if they do not receive a satisfactory reply from the Commission about these matters.

2 The relevant provisions of the Commission Communication

The Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(5) (the "Commission Communication") states the following:

"7. Communication with complainants

The Commission departments will contact complainants and inform them in writing, after each Commission decision (formal notice, reasoned opinion, referral to the Court or closure of the case), of the steps taken in response to their complaint.

(...)

At any point during the procedure complainants may ask to explain or clarify to the Commission officials, on the spot and at their own expense, the grounds for their complaint.

8. Time limit for investigating complaints

As a general rule, Commission departments will investigate complaints with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint by the Secretariat-General.

Where this time limit is exceeded, the Commission department responsible for the case will inform the complainant in writing.

9. Outcome of the investigation of complaints

After investigating the complaint, Commission officials may ask the College of Commissioners either to issue a formal notice opening proceedings against the Member State in question, or to close the case definitively. The Commission will decide on the matter at its discretion. This discretion shall cover not only the desirability of opening or terminating an infringement procedure but also the choice of complaint. Complainants will be informed in writing of the decision taken by the Commission in connection with their complaint and any subsequent Commission decisions on the matter."

3 Alleged improper delay by the Commission in the handling of the complainants' complaint

3.1 The complainants allege that there was an improper delay by the Commission in the handling of their complaint registered under reference 2003/4781, SG (2002)/A/3222/22. Their complaint was registered on 29 July 2003. They received some information from the Commission on 15 December 2003, 23 February 2004, 26 April 2004, 23 July 2004, 19 October 2004, 2 December 2004 and 11 March 2005. After 11 March 2005, the complainants received no information from the Commission. They did not understand why delays had occurred at all stages of the Commission's inquiry (request for additional information and extensions of the deadlines granted to the Spanish authorities).

3.2 In its opinion, the Commission recalled that Article 8, paragraph 1, of the Commission Communication provides for the general rule according to which the Commission investigates complaints with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint by the Secretariat-General. The following paragraph provides for the possibility to exceed the time-limit. The Commission pointed out that the time-limit in question was not peremptory and that the Commission Communication provides for the possibility to exceed it.

In order to assess the time needed for the handling of the present file, the Commission considered that the following elements should be taken into account. The formal investigation of the complaint started after its registration in July 2003 and after the receipt from the complainants, at the beginning of September 2003, of their authorisation not to treat the file confidentially. As clearly shown by the number of pages and annexes, the file is extensive and complex. Moreover, the arguments raised by the complainants are particularly varied, requiring, among others, assessments regarding Community law and third-party contractual relationships. According to the complainants' allegations, all the reports dealing with Blue Dragon and with them pertain to criminal law. This complex reasoning thus required a particularly in-depth analysis to be carried out from different perspectives.

During the investigation, two requests for information were sent to the Spanish authorities, on 15 December 2003 and 2 December 2004. These two letters were particularly detailed, in order to adequately present the complainants' allegations. Annexes were attached to them. The replies from the Spanish authorities and their annexes were also very detailed. Each of these letters required an in-depth and thorough examination of the file, preparation of a draft, modifications of this draft, consultation of concerned services within DG AGRI and relevant services in other Directorates-General, assessment of the contributions from these services and subsequent modifications of the draft. Furthermore, there were delays due to the need for translation and the need to extend the deadlines for the Spanish authorities' replies. Finally, the sensitivity of the file, the requests for information received by the Commission from other institutions and the coverage of the issue by the media implied that the Commission had to deal with this file with particular care.

The information provided to the complainants deals with the Commission's activities vis-à-vis external parties. On 19 October 2004, the Commission informed the complainants that the one-year time-limit would be exceeded.

The Commission noted that the complainants referred to the delay that had occurred between the second reply from the Spanish authorities and the date of their complaint with the Ombudsman. The Commission apologised for this delay and assured them that the handling of their file has not been neglected and that it continued in accordance with the above-mentioned rules. The Commission indicated that the examination of the file was nearly completed and that the complainants would be informed of its position as soon as possible and according to the applicable rules.

3.3 In their observations, the complainants indicated that, in the context of complaint 1769/2002/(IJH)ELB, they had already given a considerable amount of useful information to the Commission. They concluded that, after 29 July 2003, the Commission had all the necessary elements at its disposal. Moreover, they provided DG AGRI with an analysis of what happened in Spain, which is the basis of the legal proceedings launched in Spain. The complainants did not understand why the Commission justified its delay by referring to the replies it provided to other institutions and to media coverage. They wondered how it could provide information to third parties while the preliminary phase of its investigation ended on 12 April 2006.

3.4 The Ombudsman, first, notes that principles of good administrative behaviour require that the Commission's services pursue their inquiries diligently and without undue delay. In the present case, the complainants' Article 226 complaint was registered on 29 July 2003 and the Commission (DG AGRI) informed the complainants of its assessment of the case and of its intention to close it by letter dated 12 April 2006. During this period (and in chronological order), it appears that the following events took place:

(1) the formal investigation of the complaint started after its registration in July 2003 and the receipt from the complainants, at the beginning of September 2003, of their authorisation not to treat the file confidentially;

(2) the first request for information was sent to the Spanish authorities on 15 December 2003 and the complainants were informed accordingly;

(3) on 23 February 2004, the complainants were informed that the Commission granted the Spanish authorities a supplementary one-month deadline;

(4) on 26 April 2004, the Commission informed the complainants that the reply from the Spanish authorities had been received and was being translated;

(5) on 19 October 2004, the Commission informed the complainants that the examination of the file was ongoing and that the one-year deadline would be exceeded;

(6) on 2 December 2004, the Commission informed the complainants that a supplementary request for information had been sent to the Spanish authorities; and

(7) on 11 March 2005, the Commission informed the complainants that the reply from the Spanish authorities had been received.

Moreover, in its opinion, the Commission provided the following explanations for the length of the investigation:

(1) the file was extensive and complex (as shown by the number of pages in the file and the number of related annexes);

(2) the arguments raised by the complainants were particularly varied and concerned not only Community law but also contractual relationships with third parties and violations of criminal law;

(3) the complex reasoning of the complaint required an in-depth analysis to be carried out from different perspectives;

(4) two detailed requests for information with annexes were sent to the Spanish authorities;

(5) the replies from the Spanish authorities and their annexes were also very detailed and required an in-depth and thorough examination of the file and internal consultations (of services within DG AGRI and relevant services in other Directorates-General);

(6) there were delays due to the need for translation and to the need to extend deadlines for the Spanish authorities' replies; and

(7) the sensitivity of the file, the requests for information received by the Commission from other institutions and the coverage of the issue by the media implied that the Commission had to deal with the file with particular care.

In their observations, the complainants maintained their allegation, but did not challenge, in a specific manner, the propriety of the Commission's explanations that the file for the case was voluminous, complex and sensitive. Furthermore, they did not challenge, in a specific way, the propriety of the institution's explanations that the case required particular care and an extensive analysis, a thorough, in-depth examination of the issues involved, and internal consultations of services within DG AGRI and relevant services in other Directorates-General.

3.5 Under these circumstances, the Ombudsman takes the view that the Commission has provided valid and satisfactory explanations for the time it took it to deal with the complainants' Article 226 complaint. He thus finds no instance of maladministration as regards this aspect of the complaint.

4 Alleged failure by the Commission to provide information

4.1 The complainants allege that the Commission failed to provide information on the replies from the Spanish authorities. Relatedly they argue that they should have been notified of the content of the Commission's questions to the Spanish authorities.

4.2 In its opinion, as regards the content of the questions asked by the Commission to the Spanish authorities, the Commission recalled Article 7, paragraph 1, of the Commission Communication which states that the Commission will contact the complainants and inform them in writing, after each Commission decision (formal notice, reasoned opinion, referral to the Court or closure of the case), of the steps taken in response to their complaint. In this context, the Commission indicated that various letters were sent to the complainants in order to inform them of the progress made with their file. This information even went above and beyond the requirements of the Commission Communication.

Furthermore, the Commission noted that the complainants never requested access to the correspondence with the Spanish authorities. It further noted that these letters were part of the preliminary investigation phase of a complaint according to Article 226 of the Treaty. The procedure was still ongoing and the Commission had taken no decision on this file. Consequently, the exception provided for in Article 4, paragraph 2, of Regulation 1049/2001 was likely to apply, as the communication of the letters, at that stage, might endanger the continuation and the outcome of the investigation. The Commission recalled the established case-law of the Community Courts, concerning the confidentiality which the Member States are entitled to expect of the Commission in relation to investigations that may lead to an infringement procedure. It considered that all the letters and information provided by the Spanish authorities are covered by the above-mentioned exception, which does not allow partial access. Moreover, the Commission believed that, in this case, the overriding public interest is the trust between the Commission and the Member State concerned to find a solution in this file.

4.3 In their observations, the complainants stated that they did not understand why the Commission informed other parties of the proceedings but did not inform them, on the grounds that doing so could endanger the continuation of the investigation. They also did not understand why the Commission did not ask them to help it in order to identify mistakes and wondered why there was no adversarial discussion between the Spanish authorities and themselves.

4.4 The Ombudsman first notes that the complainants' allegation concerns failure to provide information, not failure to provide the requested documents. In this regard, he recalls that Regulation 1049/2001 does not assimilate documents to information and provides for the right of access to documents, which is distinguishable from a right of access to information(6) and does not correspond to a general obligation on the part of the Commission to reply to requests for information submitted by citizens(7). Hence, the issue raised in this allegation does not come within the ratione materiae of Regulation 1049/2001 and the reference made to this Regulation in the Commission's opinion concerns provisions which are not applicable here.

In addition, the Ombudsman recalls that, in its opinion, the Commission stated that the sensitivity of the file, the requests for information received by it from other institutions, and the coverage of the issue received by the media implied that the Commission had to deal with the file with particular care. In their observations, the complainants said that they did not understand why the Commission informed other parties but not them about the proceedings. In this regard, the Ombudsman notes that the Commission's opinion does not state that the Commission "informed other parties" but simply referred to "requests for information received by the Commission from other [Community] institutions". He also recalls the rules prohibiting the unauthorised disclosure by Community officials of information received in the line of their duty(8).

4.5 Further, the Ombudsman notes that, as pointed out by the Commission, the complainants did not request from the Commission the information here at issue. Moreover, the Commission Communication does not provide for an obligation of the Commission to inform the complainant (sua sponte or upon the complainant's request) of the content of its questions to the authorities of the Member State concerned or of the content of the replies of these authorities. Relatedly, the Ombudsman recalls the case-law of the Community Courts which has indicated that (i) persons who have lodged an Article 226 complaint have no procedural rights corresponding to a general obligation of the Commission to inform them(9); and (ii) the Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure(10). In light of the above, the Ombudsman finds therefore no maladministration as regards this aspect of the complaint.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2002 C 244.

(2) The Ombudsman notes that, in its letter dated 11 March 2005, the Commission indicated that the second reply from the Spanish authorities was received on 23 February 2005.

(3) "The institutions shall refuse access to a document where disclosure would undermine the protection of:

- commercial interests of a natural or legal person, including intellectual property,

- court proceedings and legal advice,

- the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure." (OJ 2001 L 145).

(4) Cf. Case T-105/95 WWF UK v Commission [1997] ECR II-313; and Case T-191/99 Petrie and others v Commission [2001] ECR II-3677.

(5) OJ 2002 C 244.

(6) Cf. order of the Court of First Instance of 27 October 1999 in Case T-106/99 Meyer v Commission [1999] ECR II-3273, paragraphs 34-36 (relating to the then applicable decision 94/90, on public access to Commission documents). Cf. also the Ombudsman's decision on complaint 395/99/(PD)/(IJH)/PB, points 1.1 - 1.2 (concerning decision 94/90).

(7) Cf. T-307/05 Fermont v Commission, Order of the Court of First Instance of 12 October 2006, not yet published, paragraph 26.

(8) See Article 17 of the Staff Regulations.

(9) Cf. Case C-422/97 P Sateba v Commission [1998] ECR I-4913, paragraph 42; Case T-202/02 Makedoniko Metro and Mechaniki v Commission [2004] ECR II-181, paragraph 46; Case T-242/05 AEPI AE v Commission [2006], order of 5 September 2006, not yet published, paragraph 33.

(10) See Case T-105/95 WWF UK v Commission [1997] ECR II-313 and Case T-191/99 Petrie and others v Commission [2001] ECR II-3677.