Strasbourg, 20 September 2005

Dear Mr H.,

On 23 November 2004, you made, on behalf of CEE Bankwatch, a complaint to the European Ombudsman against the European Investment Bank concerning the Bank's handling of a document request.

On 20 December 2004, I forwarded the complaint to the President of the European Investment Bank ('EIB'). The EIB sent its opinion on 3 March 2005. I forwarded it to you with an invitation to make observations, which you sent on 5 April 2005.

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

THE COMPLAINT

According to the complainant, on 4 June 2004, the Vice-President of the European Investment Bank ('EIB'), claimed in a statement made at the Bonn 2004 Renewables conference that the EIB had made money available through intermediary banks for small and medium-sized renewable energy projects. On 14 June 2004, the complainant asked the EIB for information and documents relating to these loans. In his letter, the complainant noted that the Vice-President of the EIB had referred to money that the EIB had made available, through intermediary banks, for small and medium-sized renewable energy projects. The complainant stated in his letter that he presumed that the Vice-President had referred to global loans, and asked for "a list of those renewable projects (including the name and type of projects, the names of the final beneficiaries, the amount of funding per project, and the year of project signing) that were financed under this scheme, as well as the intermediaries that were involved in these projects [...]".

By letter dated 30 June 2004, the EIB gave the complainant general information, but indicated that it would not meet his request just quoted. The EIB referred to the information contained on its website, and in particular the note "EIB's transparent information policy" (dated 12 June 2003). This note contained, among others, the following information: "EIB’s public disclosure policy with regard to global loan allocations differs from its information policy on individual loans. Disclosure of detailed information on global loan allocations is the competence of the intermediary bank, as business partner for the end beneficiary, carrying the project’s commercial risks and signing the finance contract. Under all global loan arrangements, the EIB ensures that the partner bank is committed to and capable of implementing EIB criteria. The EIB provides, on request, aggregate data on global loan financing, including country and sector breakdowns."

The complainant appealed this decision to the Secretary General of the EIB on 9 July 2004.

The handling of the complaint took place as follows: On 12 July 2004, the complainant received a confirmation of receipt from the EIB’s Secretary General; on 30 July 2004, the complainant received a letter from the EIB’s Press Office and Communications Department with the information that the Secretary General would get back to him after the summer break; on 8 October 2004, the Secretary General rejected the complainant's complaint on the basis of Article 4(vii) of the EIB's "Rules on Public Access to Documents", which contains the following exception: "the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector".

According to the complainant, the release of the requested information would not be contrary "to professional ethics, rules and practices applicable in the banking and financial sector".

Additionally , in response to the EIB's letter of 30 June 2004, the complainant requested, also on 9 July 2004, data collected from financial intermediaries and a list of intermediaries that had provided loans for renewable energy projects in the period 1999-2003, including the number of projects and the total amount that each of these intermediaries had disbursed for renewable projects in each of the years. The EIB confirmed receipt of the request but did not provide the complainant with either the requested data or with an explanation as to the reasons for the delay.

The complainant considered that there had been a clear violation of Article 13 of the Code of Good Administrative Behaviour for the staff of the European Investment Bank in its relations with the public, which provides that "a reply to all requests and complaints addressed to the [EIB] is provided within an acceptable period, without delay, and in any event no later than two months following receipt."

In addition to the alleged delay, the complainant stated that he considered it highly inappropriate that EIB staff who had been involved in adopting the disputed decision had been involved in the handling of his complaint of 9 July 2004. He referred to an email of 30 July 2004 from Ms B., one of the officials who had been involved in adopting the disputed decision. The email contained a holding reply, informing the complainant that his complaint of 9 July 2004 would be dealt with.

The complainant furthermore put forward that the EIB’s information policy and procedures were not clearly defined, referring in particular to what he considered to be a lack of clarity as regards the status of so-called "background notes" published by the EIB.

The complainant's allegations and claims were the following:

1. That the EIB had wrongly rejected his application for access to documents in its letter of 8 October 2004.
2. That the EIB had failed to respond to his request for data collected from financial intermediaries and for a list of intermediaries that provided loans for renewable energy projects in the period 1999-2003, including the number of projects and the total amount that each of these intermediaries had disbursed for renewable projects in each of the years.
3. That there had been delays in the EIB's response to his complaint of 9 July 2004.
4. That EIB staff against whom his complaint of 9 July 2004 had been made had been wrongly involved in the EIB's response made to that complaint.
5. That the EIB's information policy and procedures were not clearly defined.

The complainant made the following claims:

1. That he should be given a list of the renewable projects financed through global loans as requested in his letter dated 14 June 2004 to the Vice-President of the EIB, as well as a list of the intermediaries that were involved in these projects. The list should include the names and types of projects, the names of the final beneficiaries, the amount of funding per project, and the year of project signing.
2. That the EIB should set up transparent procedures that would provide that complaints such as his should be dealt with within one month of receipt of the complaint, unless there were specific reasons why this would not be possible.
3. That the EIB should ensure that its staff members who are the subject of complaints should not be involved in the handling of such complaints.
4. That the EIB should clearly define its information policy and procedures and all of the documents to which they apply.

THE INQUIRY

The EIB's opinion

In its opinion, the EIB made the following comments:

The first allegation

The EIB's Secretary-General informed the complainant by letter dated 8 October 2004 that in the framework of global loans, all information on individual loan allocations remains within the competence of the intermediary bank and is covered by the exception to disclosure in Article 4(vii) of the EIB's Rules on Public Access to Documents. This article provides as follows:

"1. Access to all or part of a document shall be refused where its disclosure would undermine the protection of: [...]

the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector"

The final beneficiaries' contractual relationship is with the intermediary bank, not with the EIB. The EIB could therefore not disclose information that is part of the confidential relationship between the intermediary bank and the final beneficiary.

The second allegation

The EIB apologised for its staff's failure to respond to the complainant's email of 9 July 2004. However, the EIB pointed out that this failure to reply had never been the subject of a formal complaint or a reminder from the complainant. The email had been received at a time when the EIB was handling several other communications from the complainant. The EIB stated that if the complainant was still interested in receiving a reply to the information request contained in the email, it would be pleased to provide him with an answer.

The third allegation

After having acknowledged receipt of the complainant's complaint on 12 July 2004, the EIB had sent the complainant a letter on 30 July 2004, informing him that it would address the matter after the summer break. In so doing, the EIB had acted in accordance with Article 13(2) of its Code of Good Administrative Behaviour, which provides that "[w]here, on account of the complexity of the issues raised, a reply cannot be provided within the abovementioned period [of two months], the member of staff responsible shall inform the correspondent thereof without delay. In this event, the correspondent shall be furnished with a definitive reply as soon as possible." Given the complexity of the complainant's complaint, it had been necessary to wait until all the relevant expert staff could be fully consulted.

Fourth allegation

The EIB stated that the staff member referred to by the complainant had merely been asked to acknowledge receipt of the complaint in the absence of other relevant staff during the summer break. The staff member concerned had not been involved in processing and examining the complaint. However, to avoid similar misunderstandings in the future, the EIB had already taken measures to ensure a clear separation of tasks in the handling of complaints to the EIB.

The fifth allegation

The EIB referred to its letter to the complainant of 8 October 2004, in which clarifications had been given regarding the nature and status of documents published on the EIB's information policy.

First claim

The EIB referred to its comments on the first allegation.

Second claim

The EIB stated that it welcomed feedback from the public and that the complainant's suggestion had already been brought to the attention of the EIB's governing bodies.

Third claim

The EIB referred to its comments on the fourth allegation.

Fourth claim

The EIB noted that it was about to launch a public consultation procedure as part of a review of its public information policy, a review which would include the issues raised by the complainant.

The complainant's observations

In his observations, the complainant maintained his complaint. He also made the following additional comments:

Regarding the first allegation

The EIB's application of Article 4(vii) of its Rules on Public Access to Documents effectively prevented the public from obtaining access to information about global loans. The complainant's organisation had asked all intermediary banks for information on renewable projects that were funded through the global loans. None of these intermediary banks had granted access to the information. The complainant therefore made the suggestion that the EIB could in the future handle the matter as follows: (1) In cases where the EIB has received information about individual global loans from the intermediary banks and where such cases do not have as part of the loan covenant a clause concerning the release of information, then the EIB should, as a minimum, apply Article 3 of its Rules on Public Access to Documents(1) and consult the bank concerned. (2) In cases where the EIB did not receive information about individual global loans, it should request information from the intermediary and subsequently publish some information. (3) For future global loans, the EIB should ensure that covenants are made according to which the EIB is able to release information on individual global loans.

Regarding the second allegation

The complainant stated that he had now formally requested the data referred to and additionally requested the data for 2004.

Regarding the third allegation

The complainant did not accept the EIB's explanation for the delay in replying to his organisation's complaint of 9 July 2004.

Regarding the fourth allegation

The complainant welcomed the EIB's response to this allegation.

Regarding the fifth allegation

The complainant appeared to maintain that his allegation was justified. At the same time he welcomed the EIB's decision to launch a review of its public information policy. The complainant indicated that his organisation would work actively to contribute to that review.

THE DECISION

1 Allegedly wrong rejection of application for access to documents

1.1 On 14 June 2004, the complainant, acting on behalf of the organisation CEE Bankwatch, made a document request relating to money that the European Investment Bank ('EIB') had made available, through intermediary banks, for small and medium-sized renewable energy projects. The complainant asked for "a list of those renewable projects (including the name and type of projects, the names of the final beneficiaries, the amount of funding per project, and the year of project signing) that were financed under this scheme, as well as the intermediaries that were involved in these projects [...]" By letter dated 30 June 2004, the EIB rejected the complainant's request. The EIB referred to the information contained on its website, and in particular the note "EIB's transparent information policy". The complainant appealed this decision to the Secretary General of the EIB on 9 July 2004, who informed the complainant by letter dated 8 October 2004 that the refusal had been justified on the basis of Article 4(vii) of the EIB's "Rules on Public Access to Documents", which contains the following exception: "the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector".

1.2 The complainant alleged that the EIB had wrongly rejected his application for access to documents in its letter of 8 October 2004. He claimed that he should be given a list of the renewable projects financed through global loans as requested in his letter dated 14 June 2004 to the Vice-President of the EIB, as well as a list of the intermediaries that were involved in these projects. The list should include the names and types of projects, the names of the final beneficiaries, the amount of funding per project, and the year of project signing.

1.3 In its opinion, the EIB stated that, in the framework of global loans, all information on individual loan allocations remains within the competence of the intermediary bank and is covered by the exception to disclosure in Article 4(vii) of the EIB's Rules on Public Access to Documents. This provides as follows:

"1. Access to all or part of a document shall be refused where its disclosure would undermine the protection of : [...] the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices applicable in the banking and financial sector"

It stated that the final beneficiaries' contractual relationship is with the intermediary bank, not with the EIB. The EIB could therefore not disclose information that was part of the confidential relationship between the intermediary bank and the final beneficiary.

1.4 In his observations, the complainant argued that the EIB's application of Article 4(vii) of its Rules on Public Access to Documents effectively prevents the public from obtaining access to information about global loans. The complainant pointed out that his organisation had asked all intermediary banks for information on renewable projects that were funded through the global loans, and that none of these intermediary banks had granted access to the information concerned. The complainant made suggestions as to how he thought that the EIB could handle such applications better in the future.

1.5 The Ombudsman notes that the EIB's initial refusal of 30 June 2004 and its confirmatory refusal of 8 October 2004 referred to the EIB's online information on its transparency policy. One document referred to was a note entitled "EIB's transparent information policy" (dated 12 June 2003). This note contained, among others, the following information: "EIB’s public disclosure policy with regard to global loan allocations differs from its information policy on individual loans. Disclosure of detailed information on global loan allocations is the competence of the intermediary bank, as business partner for the end beneficiary, carrying the project’s commercial risks and signing the finance contract. Under all global loan arrangements, the EIB ensures that the partner bank is committed to and capable of implementing EIB criteria. The EIB provides, on request, aggregate data on global loan financing, including country and sector breakdowns." Another document referred to was "Public Access to Information - How EIB communicates - an overview". The document was published in October 2002. Page 2 of the documents deals with "Project-related information", and provides information on the EIB's information policy regarding specific categories of documents. A separate section is "Information on Global Loans", in which the statement quoted above is essentially repeated.

1.6 It appears from the above that the EIB has adopted a practice of not giving detailed information on global loan allocations, but to provide only aggregate data on global loan financing, including country and sector breakdowns. According to the EIB, this practice was based on the consideration that t he final beneficiaries' contractual relationship was with the intermediary bank, not with the EIB, and that the EIB should therefore not disclose information that was part of the confidential relationship between the intermediary bank and the final beneficiary. In the Ombudsman's view, this consideration appears to be legitimate. On that basis, the Ombudsman considers that the EIB's refusal on the basis of Article 4(vii) of the EIB's Rules on Public Access to Documents was justified. There has therefore been no maladministration regarding this aspect of the case.

1.7 In the light of the above finding, the Ombudsman does not consider it necessary to further examine the complainant's first claim.

2 Alleged failure to respond to request

2.1 The complainant alleged that the EIB had failed to respond to his request of 9 July 2004 for data collected from financial intermediaries and a list of intermediaries that provided loans for renewable energy projects in the period 1999-2003, including the number of projects and the total amount that each of these intermediaries disbursed for renewable projects in each of the years. Furthermore, t he complainant claimed that the EIB should set up transparent procedures that would provide that complaints such as his should be dealt with within one month of receipt of the complaint, unless there were specific reasons why this would not be possible.

2.2 In its opinion, the EIB apologised for its failure to respond to the complainant's email of 9 July 2004. However, the EIB pointed out that this failure to reply had never been the subject of a formal complaint or a reminder from the complainant. The email was received at a time when the EIB was handling several other communications from the complainant. The EIB stated that if the complainant was still interested in receiving a reply to the information request contained in the email, it would be pleased to provide him with an answer.

2.3 In his observations, the complainant stated that he had now formally requested the data referred to and additionally requested the data for the year 2004.

2.4 The EIB has acknowledged that it failed to reply to the information request here concerned, and has apologised for this in its opinion. It furthermore appears that the complainant has accepted the EIB's invitation to renew his request for the information here concerned. In these circumstances, the Ombudsman considers that it is not necessary to make further inquiries into the second allegation.

3 Alleged delay in responding to complaint

3.1 The complainant alleged that there had been delays in the EIB's response to his complaint of 9 July 2004.

3.2 In its opinion, the EIB stated that after having acknowledged receipt of the complainant's complaint on 12 July 2004, the EIB sent the complainant a letter on 30 July 2004, informing him that it would address the matter after the summer break. The EIB considered that in doing so, it had acted in accordance with Article 13(2) of its Code of Good Administrative Behaviour, which provides that "[w]here, on account of the complexity of the issues raised, a reply cannot be provided within the abovementioned period [of two months], the member of staff responsible shall inform the correspondent thereof without delay. In this event, the correspondent shall be furnished with a definitive reply as soon as possible." It stated that in the light of the complexity of the complainant's complaint, it had been necessary to wait until all the relevant expert staff could be fully consulted.

3.3 In his observations, the complainant stated that he did not accept the EIB's explanation.

3.4 It is good administration to respond to complaints within a reasonable period of time, and in any case within the deadline, if any, laid down by the institution concerned. In the present case, the deadline laid down by the EIB was two months. The complainant's letter here concerned, dated 9 July 2004, in the first place contained a complaint against a refusal to provide access to documents. It appears from the EIB's opinion in the present inquiry that the EIB has a clearly formulated policy regarding the kind of information contained in the documents requested by the complainant. As noted above in relation to the first allegation, the EIB basically considers that the information concerned is confidential, and that access cannot be granted. The complainant was informed about this in the EIB's reply of 8 October 2004. The complainant's letter of 9 July 2004 also contained remarks as to the quality of the reasoning initially given by the EIB for its refusal to grant access. In the EIB's reply of 8 October 2004, that issue was clarified by adding a reference to the EIB's Code of Good Administrative Behaviour, and a short clarification.

3.5 In the light of the above, the Ombudsman fails to see why the EIB considered the issues raised in the complainant's letter of 9 July 2004 to have been "complex" within the meaning of Article 13(2) of its Code of Good Administrative Behaviour. An application for documents in respect of which the EIB already has a clearly formulated policy, and which sets out only minor procedural grievances relating to the EIB's decision on the first application, cannot, in the Ombudsman's view, be considered to be complex. The Ombudsman therefore considers that the EIB's failure to reply to the complainant's complaint of 9 July 2004 within the two-month deadline set out in its Code of Good Administrative Behaviour was an instance of maladministration. A critical remark is made below.

3.6 With regard to the complainant's claim that the EIB should apply a one-month deadline for replying to complaints, the Ombudsman has already pointed out above that it is good administration to respond to complaints within a reasonable period of time. However, the Ombudsman also points out that principles of good administration do not prescribe concrete deadlines. Setting such deadlines would be the task of the Community legislator or the institution concerned. The Ombudsman understands from the EIB's opinion that the EIB could take the issues raised by the complainant into account in its current review of its disclosure and information policy, and that the complainant's suggestion has already been brought to the attention of the EIB's governing bodies. The Ombudsman therefore does not consider it necessary to examine the complainant's second claim at this stage.

4 Involvement of staff in handling of complaint

4.1 The complainant alleged that EIB staff against whom his complaint of 9 July 2004 had been wrongly involved in the EIB's response made to that complaint. He claimed that the EIB should ensure that its staff members who are the subject of complaints should not be involved in the handling of such complaints.

4.2 In its opinion, t he EIB stated that the staff member referred to by the complainant had only been asked to acknowledge receipt of the complaint in the absence of other relevant staff during the summer break. The staff member concerned had not been involved in processing and examining the complaint. However, to avoid similar misunderstandings in the future, the EIB had already taken measures to ensure a clear separation of tasks in the handling of complaints to the EIB in the future.

4.3 In his observations, the complainant welcomed the EIB's response to the fourth allegation.

4.4 It appears from the EIB's opinion that the staff concerned was merely carrying out administrative tasks in order to confirm receipt of the complainant's complaint to the EIB. The complainant does not appear to have disputed this information.

4.5 In the light of the above, it appears that the staff concerned was merely carrying out a simple administrative task, and that this was in the interest of the complainant. The Ombudsman does not, therefore, consider that the involvement of the staff concerned was inappropriate, and it appears, therefore, that there has been no maladministration with regard to this aspect of the case. It therefore also does not appear necessary to examine the complainant's third claim.

5 Information policy and procedures allegedly not clearly defined

5.1 The complainant alleged that the EIB's information policy and procedures were not clearly defined. He claimed that the EIB should clearly define its information policy and procedures and all of the documents to which they apply.

5.2 In its opinion, the EIB referred to its letter to the complainant of 8 October 2004, in which clarifications were made regarding the nature and status of documents published on the EIB's information policy. The EIB furthermore pointed out that it was about to launch a public consultation procedure as part of a review of its public information policy, a review which would include the issues raised by the complainant.

5.3 In his observations, the complainant welcomed the EIB's decision to launch a review of its public information policy. The complainant indicated that his organisation would work actively to contribute to that review.

5.4 In the light of the ongoing consultation process for a review of the EIB's disclosure and information policy, the Ombudsman considers that it would not be appropriate to review the complainant's fifth allegation at this stage. For the same reason, the Ombudsman does not examine the complainant's fourth claim.

6 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark in respect of the complainant's third allegation:

It is good administration to respond to complaints within a reasonable period of time, and in any case within the deadline, if any, laid down by the institution concerned. In the present case, the deadline laid down by the EIB was two months. The complainant's letter here concerned, dated 9 July 2004, in the first place contained a complaint against a refusal to provide access to documents. It appears from the EIB's opinion in the present inquiry that the EIB has a clearly formulated policy regarding the kind of information contained in the documents requested by the complainant. The complainant was informed about this in the EIB's reply of 8 October 2004. The complainant's letter of 9 July 2004 also contained remarks as to the quality of the reasoning initially given by the EIB for its refusal to grant access. In the EIB's reply of 8 October 2004, that issue was clarified by adding a reference to the EIB's Code of Good Administrative Behaviour, and a short clarification.

In the light of the above, the Ombudsman fails to see why the EIB considered the issues raised in the complainant's letter of 9 July 2004 to have been "complex" within the meaning of Article 13(2) of its Code of Good Administrative Behaviour. An application for documents in respect of which the EIB already has a clearly formulated policy, and which sets out only minor procedural grievances relating to the EIB's decision on the first application, cannot, in the Ombudsman's view, be considered to be complex. The Ombudsman therefore considers that the EIB's failure to reply to the complainant's complaint of 9 July 2004 within the two-month deadline set out in its Code of Good Administrative Behaviour was an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes his inquiry into the complainant's third allegation.

With regard to the complainant's first and fourth allegations, the Ombudsman has found no maladministration. With regard to the complainant's second allegation, the Ombudsman considers that further inquiries are not necessary. With regard to the complainant's fifth allegation, the Ombudsman considers that it would not be appropriate to review that allegation at this stage, given the EIB's current process of reviewing its disclosure and information policy. For the reasons stated above, the Ombudsman does also not consider that further inquiries into the complainant's claims are necessary.

The Ombudsman therefore closes his inquiry.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) "Where the Bank is approached with an application in respect of a document in its possession received from a third party, it shall consult the third party concerned for agreement, save where it results clearly from examination of the document in the light of this decision that it must or must not be disclosed."