The background to the complaint

1. The complainant applied for a position at Frontex through selection procedure FRONTEX/12/CA/FGIV/21.1 (the 'selection procedure'). His application was unsuccessful and his name was not placed on the reserve list.

2. The complaint concerns a refusal by Frontex, following the selection procedure, to provide the complainant with the names of: (i) the person selected for a position at Frontex; and (ii) the persons placed on the reserve list (the 'selected/reserve list candidates').

3. On 19 March 2013, the complainant wrote to Frontex, asking for the names of the selected/reserve list candidates.

4. Frontex replied on 19 March 2013, stating that it could not provide the complainant with the names of the selected/reserve list candidates, as this would interfere with its internal policy, as well as the protection of personal data.

5. On 19 March 2013, the complainant lodged the present complaint with the European Ombudsman.

The subject matter of the inquiry

6. The Ombudsman opened an inquiry into the following allegation and claim:

Allegation:

The complainant alleges that Frontex wrongly refused to provide him with the name of the person selected for the position and the names of the other persons on the reserve list, following selection procedure FRONTEX/12/CA/FGIV/21.1.

Claim:

The complainant claims that Frontex should provide him with these names.

The inquiry

7. On 26 April 2013, the Ombudsman asked Frontex for an opinion on the complainant's allegation and claim. In the letter to Frontex opening the inquiry, the Ombudsman asked to be informed about the selection procedure followed by Frontex in this particular case, notably, whether it drew up a reserve list at the end of the selection procedure. The Ombudsman also specifically requested that Frontex clarify its position as regards access to the names of selected/reserve list candidates. In this regard, the Ombudsman drew Frontex's attention to the recent draft recommendation in case 238/2012/JF[1].

8. On 9 August 2013, the Ombudsman received Frontex's opinion on the complaint. This opinion was sent to the complainant for observations.

The Ombudsman's analysis and conclusions

A. Allegation of refusal to provide the name of the person selected for the position and the names of candidates on the reserve list

Arguments presented to the Ombudsman

9. In support of his allegation, the complainant argued that Frontex wrongfully refused to provide him with the names of the selected/reserve list candidates following the selection procedure. The complainant highlighted that reserve lists are made public by the European Personnel Selection Office. He argued that Frontex should enhance the transparency of its decisions by adopting a similar policy.

10. In its opinion sent to the Ombudsman, Frontex first noted that the complainant did not request public access to any documents pursuant to the Public Access to Documents Regulation ('Regulation 1049/2001')[2]. Therefore, Frontex did not handle his request as an initial application in accordance with Articles 6 and 7 of Regulation 1049/2001. As such, it argued that that this complaint is not comparable to the complaint in case 238/2012/JF[3]. It argued that in that case, the complainant made an "explicit initial application" pursuant to Regulation 1049/2001. Frontex clarified that the complainant's request was processed pursuant to principles of good administrative practice as laid down in the Frontex Code of Conduct (Annex 4), in particular Article 21 (requests for information).

11. Frontex also stated that even if the complainant had specifically referred to Regulation 1049/2001, it would not have automatically provided him with the document containing the requested personal data. Frontex pointed out that this kind of request involves balancing transparency and the public interest in disclosure with the protection of personal data of the persons concerned. In this respect, it noted that the Bavarian Lager judgment of the Court of Justice of the European Union[4], the position paper of the European Data Protection Supervisor ('EDPS')[5], together with the abovementioned draft recommendation of the European Ombudsman[6] are used as guidance tools when Frontex is to disclose publicly names requested, that are included in a document, on the basis of the EU rules on public access to documents.

12. Frontex argued that disclosing the names of the selected/reserve list candidates could put candidates in an inconvenient position, especially towards their current employer. Frontex stated that the candidates' fundamental right to privacy, as regards job seeking, should not be infringed. Frontex also pointed out that the EPSO practice mentioned by the complainant refers to competitions to recruit officials and not to temporary and contract agent recruitment procedures.

13. However, Frontex stated that access to the names of the selected/reserve list candidates may be provided on a case-by-case basis, after balancing the different interests at stake. Since surnames and forenames are considered personal data, the position of Frontex is that the request for access to personal data is examined under both Regulation 1049/2001 and the Data Protection Regulation ('Regulation 45/2001')[7]. Therefore, the applicant must establish, in their initial application, the necessity for personal data to be transferred (Article 8 of Regulation 45/2001) and, most importantly, that such transfer must not prejudice the data subject's rights (see particularly Article 18 of Regulation 45/2001).

14. Frontex explained that, as a general rule and to the greatest extent possible, it seeks the data subject's consent for the disclosure of his/her personal data, and follows the procedure set out at point 26 of the European Ombudsman's draft recommendation to the European Centre for Disease Prevention and Control ('ECDC')[8]. In light of the fact that the complainant's e-mail was not considered an initial application pursuant to Regulation 1049/2001, the procedure described above was not implemented.

15. Frontex stated that, as a result of this complaint and enquiry, together with the position paper of the EDPS[9], it has decided to adopt a proactive approach towards public access of the names of the selected/reserve list candidates. Such an approach will mean that from now onwards, the application form will include a specific question to the candidate, asking for his/her explicit consent for the disclosure of his/her name upon request, in the case that he/she is appointed or is put on the reserve list.

16. Frontex also stated that an awareness session on public access to documents would also take place in the near future, with a view to familiarising Frontex staff on how to deal with such requests. A part of this session would be dedicated to the public disclosure of documents containing personal data.

The Ombudsman's assessment

17. The Ombudsman first notes that the complainant has expressed his satisfaction with the opinion submitted by Frontex.

18. The Ombudsman is also satisfied with the opinion of Frontex. She considers that it has adequately clarified its position as regards access to the names of the selected/reserve list candidates. In doing so, Frontex has properly balanced the interests of transparency with the protection of personal data of the persons concerned.

B. Conclusions

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

The complaint has been settled by Frontex.

The complainant and Frontex will be informed of this decision.

 

Emily O'Reilly

Done in Strasbourg on 7 April 2014

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[1] Draft recommendation of the European Ombudsman in the inquiry into complaint 238/2012/JF against the European Centre for Disease Prevention and Control.

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

[3] Draft recommendation of the European Ombudsman in the inquiry into complaint 238/2012/JF against the European Centre for Disease Prevention and Control.

[4] Case C-28/08 P Commission v. Bavarian Lager [2010] ECR-I-06055.

[5] EDPS's additional paper of 24 March 2011 on 'Public access to documents containing personal data after the Bavarian Lager ruling'.

[6] Draft recommendation of the European Ombudsman in the inquiry into complaint 238/2012/JF against the European Centre for Disease Prevention and Control.

[7] Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ 2001 L 8, p.1.

[8] Draft recommendation of the European Ombudsman in the inquiry into complaint 238/2012/JF against the ECDC.

[9] See footnote 5.