Strasbourg, 16 December 2003

Dear Dr. G.,

On 17 April 2003, you lodged a complaint against the European Commission concerning the Commission’s refusal to grant you access to a document (the “Audimetrie-Studie”).

On 7 May 2003, I forwarded the complaint to the President of the European Commission for its opinion.

The Commission sent its opinion on 2 October 2003, and I forwarded it to you on 8 October 2003 with an invitation to make observations by 15 November 2003 at the latest.

No observations appear to have been received from you.

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

THE COMPLAINT

In February 2003, the complainant, a German journalist, applied to the Commission for access to a study (“Audimetrie-Studie”) that had been prepared towards the end of 2000. According to the complainant, the study accused German television companies of having failed to comply with provisions of the EU television directive. The request for access was 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(1).

The request was rejected by the Commission. Further to the complainant’s confirmatory application of 16 February 2003, the Commission granted access to part of the study by letter dated 17 March 2003. According to the complainant, the passages concerning the alleged infringements of the German television companies had however either been left out or been blanked out in the document he was shown.

In his complaint to the Ombudsman lodged in April 2003, the complainant alleged that the Commission had failed to give access to the full text of the study. He claimed that such access should be granted. The complainant noted that many of the accusations had already been made public years ago.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The complainant had asked for access to a study concerning compliance with the provisions of the “Television without frontiers” directive(2) (“the Directive”) on television advertising and teleshopping(3) by Germany. This study had been commissioned by the Commission’s Directorate-General Education and Culture and prepared by a consultant. For this purpose, the consultant had examined the advertising spots and the teleshopping broadcast in the programmes of various German broadcasters (ARD, ZDF, RTL, PRO 7, SAT 1) between September and November 2000.

The study, which had been finalised in February 2001, had come to the conclusion that there was a number of presumable infringements of the Directive. On 23 October 2001, and on the basis of this study, the Commission had asked the German authorities to submit their observations (reference SG(2001)260405). The study had been annexed to this letter. The matter was still at the pre-trial stage. The Commission had not yet decided as to whether it should submit the case to the Court of Justice.

On 13 March 2003, the Commission had granted the complainant partial access to the study. It had however indicated that no access could be given to those parts of the study which concerned possible infringements of the Directive. This refusal was based on Article 4 (2) third indent of Regulation 1049/2001. According to this provision, access to a document shall be refused where disclosure would undermine the protection of “the purpose of inspections, investigations and audits”, unless there is an overriding public interest in disclosure.

In the case of inspections and investigations concerning a possible infringement of obligations under EU law, sincere co-operation and a climate of mutual confidence between the Commission and the Member State concerned were necessary in order to allow the parties to engage in a negotiating process with a view to finding a settlement to the dispute at the pre-trial stage. The disclosure of documents relating to an investigation could therefore prove detrimental for the handling of such infringements and jeopardise the dialogue between the Member State and the Commission which often allowed to find a solution before submitting the case to the Court.

The Court of First Instance itself had recognised, in its judgement of 5 March 1997 in the WWF case, that “the confidentiality which the Member States are entitled to expect of the Commission in such circumstances warrant, under the heading of protection of the public interest, a refusal of access to documents relating to investigations which may lead to an infringement procedure even where a period of time has elapsed since the closure of the investigation”.(4)

Furthermore, in its judgement of 14 October 1999 in the Bavarian Lager case, the Court of First Instance had held: “The disclosure of documents relating to the investigation stage, during the negotiations between the Commission and the Member State concerned, could undermine the proper conduct of the infringement procedure inasmuch as its purpose, which is to enable the Member State to comply of its own accord with the requirements of the Treaty or, if appropriate, to justify its position (see Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 44), could be jeopardised.”(5)

Finally, in its judgement of 11 December 2002 in the Petrie case, the Court of First Instance had held: “This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State in question regarding the latter's voluntary compliance with the Treaty requirements may continue during the court proceedings and up to the delivery of the judgement of the Court of Justice. The preservation of that objective, namely an amicable resolution of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgement, justifies refusal of access to the letters of formal notice and reasoned opinions drawn up in connection with the Article 226 EC proceedings on the ground of protection of the public interest relating to inspections, investigations and court proceedings, which comes within the first category of exceptions in Decision 94/90.”(6)

This case-law continued to be relevant for Regulation 1049/2001 which has been applicable since 3 December 2001. The Regulation foresees that the exception is not applicable if there is an overriding public interest in disclosure. In the present case, however, there was no factual element allowing to conclude that there was such an overriding public interest in disclosure. On the contrary, it was rather in the public interest to maintain the Commission’s capacity properly to carry out its investigations in order to ensure that Member States correctly applied Community law.

The fact that certain accusations had already been made public did not in itself justify granting access to the document as such, the disclosure of which would complicate the negotiations with the Member State concerned with a view to finding a friendly solution.

Every person submitting a request for information under Regulation 1049/2001 had the same rights, regardless of his status (even if he was a journalist) and of the reasons for his request. Article 6 of the Regulation expressly provides that the applicant is not obliged to state reasons for his application.

On the basis of these considerations, the Commission submitted that it had correctly applied the provisions of Regulation 1049/2001 by granting only partial access to the relevant study to the complainant.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Allegedly wrongful failure to grant full access to document

1.1 The complainant, a German journalist, requested access to a study that had been prepared by a consultant for the Commission. The study concerned compliance with the provisions of the “Television without frontiers” directive(7) on television advertising and teleshopping(8) by Germany. The study, which had been finalised in February 2001, had come to the conclusion that there was a number of presumable infringements of the Directive. The Commission granted the complainant only partial access to the study. No access was given to those parts of the study which concerned possible infringements of the Directive. The complainant alleges that the Commission was wrong to refuse to give full access to the study. He notes that many of the accusations made in the study had already been made public years ago.

1.2 The Commission takes the view that its decision was justified by Article 4 (2) third indent of Regulation 1049/2001. According to this provision, access to a document shall be refused where disclosure would undermine the protection of “the purpose of inspections, investigations and audits”, unless there is an overriding public interest in disclosure. The Commission argues, referring to the case-law of the Community courts, that in the case of inspections and investigations concerning a possible infringement of obligations under EU law, sincere co-operation and a climate of mutual confidence between the Commission and the Member State concerned are necessary in order to allow the parties to engage in a negotiating process with a view to finding a settlement to the dispute at the pre-trial stage. In the Commission’s view, the disclosure of documents relating to an investigation could therefore prove detrimental for the handling of such infringements and jeopardise the dialogue between the Member State and the Commission which often allowed to find a solution before submitting the case to the Court. The Commission further submits that the fact that certain accusations have already been made public does not in itself justify granting access to the document as such, the disclosure of which would complicate the negotiations with the Member State concerned with a view to finding a friendly solution. According to the Commission, it has not been shown that there is an overriding public interest in disclosure of the full study in the present case.

1.3 According to the established case-law of the Community courts, the exceptions to the right of access to documents held by Community institutions laid down by Community law (now in Regulation 1049/2001) must be construed and applied strictly, so as not to frustrate the application of the general principle of giving the public the widest possible access to these documents.(9)

1.4 The Ombudsman has therefore taken the position that the exception based on inspections and investigations (which is now laid down in Article 4 (2) third indent of Regulation 1049/2001) should only be applied when the requested documents have been drawn up in the course of an investigation connected to an infringement proceeding.(10) In the present case, the study was finalised in February 2001, and in October 2001 the Commission forwarded this study to the German authorities, asking the latter to submit their observations (reference SG(2001)260405). At the time when the complainant made his request for access in February 2003, the matter was still at the pre-trial stage and the Commission had not yet decided as to whether it should submit the case to the Court of Justice. The Ombudsman considers, however, that the above-mentioned chronology of events confirms that the study was drawn up in the course of an investigation connected to an infringement proceeding.(11) In these circumstances, the Commission is, in accordance with the case-law of the Community courts, entitled to refuse access on the basis of Article 4 (2) third indent of Regulation 1049/2001 unless there is an overriding public interest in disclosure. The Ombudsman considers that the arguments submitted by the complainant are not sufficient to prove that there would be an overriding public interest in disclosure. It should furthermore be pointed out that the Commission has granted partial access to those parts of the study which did not appear to be covered by the purpose of the exception laid down in Article 4 (2) third indent of Regulation 1049/2001.

1.5 The Ombudsman therefore considers that the Commission’s approach appears to be reasonable and in conformity with Regulation 1049/2001. It should however be noted that the highest authority on the interpretation of Community law is the Court of Justice.

1.6 In these circumstances, the Ombudsman considers that there was no maladministration on the part of the Commission.

2 Conclusion

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

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2001 no. L 145, page 43.

(2) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60).

(3) Articles 10 sequ. of the directive.

(4) Case T-105/95 WWF UK v Commission [1997] ECR II-313, paragraph 63.

(5) Case T-309/97 Bavarian Lager v Commission [1999] ECR II-3217, pargaraph 46.

(6) Case T-191/99 Petrie and Others v Commission [2001] ECR II-3677, paragraph 68.

(7) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60).

(8) Articles 10 sequ. of the directive.

(9) Cf. Case C-41/00 P Interporc v Commission [2003] I-2125, paragraph 48.

(10) See point 2.7 of the Ombudsman’s decision of 31 May 2001 on complaints 271/2000/(IJH)JMA and 277/2000/(IJH)JMA, Annual Report of the Ombudsman for 2001, p. 208.

(11) It should be noted that in the case decided by the Ombudsman in 2001 (see footnote 10), the relevant reports had been commissioned prior to any investigation, and with a view solely to considering the options available to the Commission. Moreover, at the time when the request for access was made, the Commission apparently had not even taken any of the steps foreseen in Article 226 of the EC Treaty which lead up to infringement proceedings before the Court of Justice.