Decision of the European Ombudsman on complaint 1790/2004/GG against the European Commission

Strasbourg, 25 October 2004

Dear Mr R.,

On 26 April 2004, you sent to me a complaint against the European Commission concerning an alleged refusal to grant access to a document. This letter does not appear to have reached my office. However, on 14 June 2004 you sent me a copy of this letter by fax. On 22 June 2004, you submitted the relevant correspondence to me.

On 30 June 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 13 August 2004. I forwarded it to you on 30 August 2004 with an invitation to make observations, which you sent on 30 September 2004.

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

THE COMPLAINT

Background

In 2001, the complainant lodged a complaint (complaint 1834/2001/(SM)GG) that concerned the case of Ms D., a Palestinian film-maker, who had had a contract with one of the Commission’s framework contractors for the production of a film on the tenth anniversary of EU aid to the Palestinians (1987-1997). The budget allocated for this project amounted to some EUR 38 000. According to the complainant (Ms D.’s lawyer), the project had subsequently been greatly altered on the direct orders of the EU Commission Representative Office in the West Bank and Gaza ("ECRO") and as a result of ECRO’s intervention, Ms D. had incurred substantial extra costs which the original contract did not cover. The complainant submitted that the total cost of the film amounted to $ 155 598.

In order to support his case, the complainant inter alia submitted a copy of a declaration by Mrs K. that was dated 11 August 2001. Mrs K., who had been the Cultural and Press Attaché of ECRO at the time, appeared to have been the most important contact person for Ms D. among the Commission’s staff in Jerusalem in so far as the production of the film was concerned. In her declaration, Mrs K. stated that the film had been produced in accordance with the Commission’s wishes and in close co-operation with the latter’s services. She further stated that a budgetary overrun for delays in production had been taken care of by the complainant until the Commission would, after the Head of ECRO had agreed, take into charge this overrun. Mrs K. added that the Head of ECRO had then to their great surprise denied Ms D. her rights. She concluded by saying that she supported the steps taken by Ms D. with a view to recovering her material rights and her dignity.

On the occasion of an inspection of the Commission’s file carried out by the Ombudsman’s services during the inquiry into the above-mentioned complaint, an e-mail message dated 30 May 2000 was found that had been sent by Mr E., a Commission official, to the Commission or to another Commission official. This e-mail referred to a note that had (according to the e-mail) been drawn up by a member of the Commission’s local staff and that had been forwarded to the Commission in Brussels. The note itself was not on the file.

In March 2003, and on the basis of the inquiry that he had carried out until then, the Ombudsman made a proposal for a friendly solution in which he invited the Commission to consider compensating Ms D. for the extra expenses she had incurred in making the film.

In its reply, the Commission informed the Ombudsman that it felt unable to accept this proposal. The Commission noted that it had in the meantime contacted Mrs K. and submitted an e-mail dated 24 June 2003 that Mrs K. had sent to the Commission. In this e-mail, Mrs K. contested the use that had been made of her declaration of 11 August 2001. Mrs K. also stated that she had only intended to help Ms D. recover the amount on which the contract partners had agreed and which was covered by the contract between them. She added that she had warned Ms D. that the budget overrun was a matter for her alone, that she was responsible for it and that the Commission was not in a position to pay for this overrun.

On 27 October 2003, the Ombudsman closed his inquiry into complaint 1834/2001/(SM)GG since in his view there were no grounds to pursue his inquiry. The Ombudsman noted that, judging from the quotation of the above-mentioned note in Mr E.’s e-mail, the said note could constitute evidence supporting Ms D.’s case(1). He therefore expressed his surprise at the fact that this document was not on the Commission’s file that had been inspected by his services(2). The Ombudsman noted, however, that even if this document should have been drafted by a Commission official who was familiar with the project and if it should indeed constitute evidence supporting Ms D.’s case(3), any such evidence would be contradicted by the written statements that had been made by Mrs K. in June 2003.

In these circumstances, establishing the truth of the matter would in the Ombudsman's view have required hearing at least these two persons (the author of the note and Mrs K.) as witnesses. However, the Ombudsman took the view that such an examination could only be carried out by a court of competent jurisdiction. The Ombudsman pointed out that Article 3 (2) of the Statute of the Ombudsman provides that officials and other servants of the Communities must testify at the request of the Ombudsman. The Ombudsman stressed that he had not been given the power to hear other witnesses. This consideration was based on the fact that Mrs K. was no longer working for the Commission by then.

The complainant’s letter of 16 March 2004

On 16 March 2004, the complainant informed the Ombudsman that he had asked the Commission (on 16 December 2003) for access to the said note in January 2004. On 1 March 2004, the Commission had informed the complainant that the relevant document “is not a ‘Note’ drawn up by the Delegation, but a text with no indication of the name of the author, without ‘paper-entête’, date and/or signature.” The Commission had concluded that the note was therefore not a document within the meaning of Article 2 of Regulation 1049/2001.

In a letter to the Commission of 16 March 2004, the complainant objected to this interpretation and noted that he would send a copy of the Commission’s letter to the Ombudsman “so that he may comment on the contents”. The complainant did so the same day.

In his reply of 24 March 2004, the Ombudsman acknowledged receipt of this letter and drew the complainant’s attention to the fact that he could submit a new complaint if access to the document was refused, after having made the appropriate prior approaches as foreseen in Regulation 1049/2001.

The present complaint

On 26 April 2004, the complainant wrote to the Ombudsman to complain about the Commission’s failure to grant access to the relevant document. He enclosed a copy of a letter dated 23 March 2004 in which the Commission had replied to the letter of 16 March 2004 and confirmed the position it had taken in its letter of 1 March 2004.

The complainant’s letter of 26 April 2004 did not reach the Ombudsman’s office. This was discovered when the complainant’s assistant rang on 14 June 2004 to inquire about the state of the procedure. The complainant’s assistant sent a copy of the letter of 26 April 2004 by fax the same day, which was registered as the new complaint.

On 22 June 2004, the complainant submitted copies of his correspondence with the Commission.

The complainant basically alleged that the Commission had acted wrongly when refusing to grant access to the note that was referred to in Mr E.’s e-mail message of 30 May 2000.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

On 16 December 2003, the complainant had asked for access to the relevant document.

In its reply of 16 January 2004, the Commission had pointed out that "after verification, this document (...) is not part of the file in our possession in the Headquarters (...) Consequently, we are not in a position to forward you this document at this stage. However, in order to do our best, we have asked the delegation in Jerusalem to check if this document can be found in their historical archives. In parallel, we have asked [Mr E.] to clarify the nature of this document."

After clarification, the Commission had informed the complainant on 1 March 2004 that the relevant document "is not a 'Note' drawn up by the Delegation, but a text with no indication of the name of the author, without 'paper-entête', date and/or signature. (...) Under these circumstances it is not a question of a document, which falls under the scope of Article 2 of Regulation 1049/2001 (...)."

On 23 March 2004, and in reply to the complainant's letter of 16 March 2004, the Commission had confirmed the accuracy of the information provided on 1 March 2004.

The answers given to the complainant showed the Commission's good will and the efforts made by the Commission to satisfy the complainant's request. Before refusing access, the Commission had to find the requested 'note'. On 5 February 2004, on the basis of the information provided by Mr E. and after an enquiry in the Jerusalem Delegation, the Commission services there had succeeded in retrieving a photocopy of a 'text' that seemed to meet the characteristics described by Mr E.'s e-mail of 30 May 2000.

The note in question lacked not only the date and the author's signature, but also the other elements in the Commission's normal procedure of registering documents (reference number, subject matter, name of addressee and/or responsible Directorate-General, when applicable). Given the unclear status of the document, and after making an assessment of the individual case, the Commission had refused access to the complainant, as the requested note did not seem to be a 'document of the Commission'.

As for the allegation attributing authorship of the document to a member of the Commission's staff, it should be noted that such a statement could be hardly defended given the absence of the author's signature and therefore the difficulty in establishing the identity of its author. The only signature that appeared in the text seemed to be the one of acknowledgement of receipt. It was thus by no means a note drafted by a member of the Commission's staff, but rather an anonymous paper with questionable statements received by a member of the local Delegation staff.

Given the above-mentioned circumstances, the Commission had re-examined the situation and decided to send the document referred to in Mr E.'s e-mail of 30 May 2000 to the Ombudsman.

The complainant's observations

In his observations, the complainant made the following comments:

The disclosure of the relevant document represented a complete 'volte-face' by the Commission. Given that he had been forced to make the present complaint because of the refusal to grant access to the document in question and that his position and submissions had not changed in the meantime, he sought a draft recommendation from the Ombudsman that the Commission was guilty of maladministration for failure to disclose the relevant document prior to the complaint being lodged.

The said document clearly supported his case and contradicted Mrs K.'s most recent statements. Complaint 1834/2001/(SM)/GG should therefore be re-opened.

The disclosed document did not bear any signature. This was not surprising given that the Commission had expressly admitted being unable to find the original and rather to have disclosed a photocopy of the 'text'.

The Commission sought to downplay the importance of the document by asserting that it was not an internal Commission note, but rather an anonymous paper. This with respect was an absurd suggestion. The easiest way to determine the status of the document would be to ask Mr E. himself, and the Ombudsman was formally requested to do so.

In his decision of 27 October 2003, the Ombudsman had correctly stated that the way to establish the truth would mean hearing at least two witnesses. He had gone on to state however that he only had the power to oblige Commission officials and other servants of the EU to give such evidence. The Ombudsman had concluded by saying that in the circumstances, there were no grounds for pursuing the matter. With respect, the Ombudsman's reasoning was not understandable. Mrs K. had been a Commission official at the relevant time. The matters she would be asked about arose directly from her time working as a Commission official. Accordingly, there seemed to be no reason why she should not be asked to provide evidence. Mrs K. was no doubt the recipient of a Commission pension and as such was bound to comply with the institution's rules insofar as her employment with that institution was concerned. The second witness could be either Mr E. (who still appeared to be working for the Commission) or the author of the note.

The complainant therefore asked the Ombudsman (1) to adopt a draft recommendation that the Commission was guilty of maladministration by failing to disclose the internal note in question, (2) to re-open complaint 1834/98/(SM)/GG further to that note's disclosure and (3) to seek evidence from Mrs K. and Mr E. and/or the author of the note as to the truth of the position.

THE DECISION

1 Failure to disclose document

1.1 In December 2003, the complainant had asked the European Commission for access to a note that was referred to in Mr E.’s e-mail message of 30 May 2000 that the Ombudsman's services had seen on the occasion of their inspection of the Commission's file in the context of the Ombudsman's inquiry into an earlier complaint (complaint 1834/2001/(SM)/GG) that had been submitted by the complainant. In his present complaint that was received by the Ombudsman in June 2004, the complainant basically alleged that the Commission had acted wrongly when refusing to grant access to this note.

1.2 In its opinion, the Commission pointed out that in its reply of 16 January 2004 to the complainant's request for access, it had explained that the relevant document was not part of the file in Brussels but that it would check whether it could be found in the archive of its Delegation in Jerusalem. The Commission added that it had subsequently succeeded in retrieving a photocopy of a 'text' that seemed to meet the characteristics described by Mr E.'s e-mail of 30 May 2000. It further pointed out that it had then informed the complainant on 1 March 2004 that the relevant document was not a 'note' drawn up by the Delegation, but a text with no indication of the name of the author, without 'paper-entête', date and/or signature. The complainant had further been informed that the Commission therefore considered that the relevant document was not a document that fell within the scope of Article 2 of Regulation 1049/2001. The Commission noted, however, that it had subsequently re-examined the situation and decided to send the document referred to in Mr E.'s e-mail of 30 May 2000 to the Ombudsman.

1.3 In his observations, the complainant took the view that the disclosure of the relevant document represented a complete 'volte-face' by the Commission. The complainant stressed that he had been forced to make the present complaint because of the Commission's refusal to grant access to the document in question and that his position and submissions had not changed in the meantime. He therefore asked the Ombudsman to make a draft recommendation that the Commission was guilty of maladministration for failure to disclose the relevant document prior to the complaint being lodged.

1.4 The Ombudsman understands that the complainant argues that the Commission has disclosed the document to which he sought access, but that this disclosure should have been made earlier and without the need to resort to a complaint to the European Ombudsman. Article 3 (6) of the Ombudsman's Statute(4) provides that if the Ombudsman finds that there has been maladministration, he shall inform the institution or body concerned, where appropriate making draft recommendations. Article 8 (1) of the Implementing Provisions adopted by the Ombudsman on 8 July 2002(5) provides that the Ombudsman makes a report with draft recommendations to the institution concerned if he considers (a) that it is possible for the institution concerned to eliminate the instance of maladministration or (b) that the instance of maladministration has general implications.

1.5 Given that the Commission has disclosed the document that it submitted to the Ombudsman with its opinion, the Ombudsman considers that the first of these conditions is not fulfilled in the present case. It is therefore necessary to ascertain whether there was an instance of maladministration that has general implications.

1.6 Regulation 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(6) provides for the widest possible access to documents held by these institutions. According to Article 2 (1), every citizen has a right of access to these documents, subject to the principles, conditions and limits defined in the Regulation. Article 2 (3) provides that the Regulation "shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union." The position that the Commission initially adopted with regard to the complainant's request for access could be understood as meaning that the relevant document did in the Commission's view not fall within the scope of application of the Regulation because it had not been drawn up by the Commission. If that position had been maintained by the Commission, the Ombudsman would indeed have considered it necessary to make a draft recommendation, given that this position is clearly at odds with Article 2 (3) of the Regulation. The Ombudsman notes, however, that the Commission has subsequently re-examined the situation and decided to disclose the document. It thus appears that the Commission no longer maintains its previous position. In these circumstances, the Ombudsman considers that no draft recommendation and no further inquiries are needed as regards the complainant's allegation.

2 The complainant's further claims

2.1 In his observations on the Commission's opinion, the complainant also made the following further claims: the Ombudsman should (1) re-open complaint 1834/2001/(SM)/GG further to the disclosure of the relevant note and (2) seek evidence from Mrs K. and Mr E. and/or the author of the note as to the truth of the matter.

2.2 The Ombudsman considers it useful to recall that on 27 October 2003, he closed his inquiry into complaint 1834/2001/(SM)GG since he had come to the conclusion that there were no grounds to pursue his inquiry. This decision was based on the consideration that establishing the truth of the matter would require hearing at least two persons (the author of the note and Mrs K.) as witnesses, at least one of whom (Mrs K.) no longer worked for the Commission. However, Article 3 (2) of the Statute of the Ombudsman provides that officials and other servants of the Communities must testify at the request of the Ombudsman. The Ombudsman has not been given the power to hear other persons as witnesses.

2.3 In his observations on the Commission's opinion on the present complaint, the complainant argued that the Ombudsman should be able to hear Mrs K. as a witness, given that the latter was no doubt the recipient of a Commission pension and as such was bound to comply with the institution's rules insofar as her employment with that institution was concerned.

2.4 Article 3 (2), fifth sub-paragraph of the Ombudsman's Statute provides as follows: "Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall speak on behalf of and in accordance with instructions from their administrations and shall continue to be bound by their duty of professional secrecy."

2.5 The Ombudsman takes the view that the complainant's argument according to which the said obligation should not only cover officials and other servants of the EU who are in active service but also officials and other servants of the EU who have retired and who receive a pension from the EU appears to be sensible. The interpretation proposed by the complainant would in any event be conducive to helping the Ombudsman to carry out his primary task of examining possible cases of maladministration on the part of Community institutions and bodies. The Ombudsman notes, however, that the complainant has not submitted any evidence to show that Mrs K. is indeed drawing a pension from the EU. Article 77 of the Staff Regulations(7) stipulates that the entitlement to a retirement pension generally presupposes that the official concerned has completed at least 10 years' service and that the retirement pension is only payable after the official has reached the age of 63 years. There is nothing to suggest that Mrs K. (who seems to have worked in the Commission's Delegation in Jerusalem only for a limited period of time) fulfils these conditions.

2.6 In these circumstances, the Ombudsman considers that there is no need to extend his inquiry into the present complaint to the above-mentioned new claims that the complainant has raised in his observations on the Commission's opinion. The complainant is of course free to re-submit these claims if he should be able to provide evidence to suggest that Mrs K. is indeed in receipt of a pension paid by the EU.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appear to be no grounds for further inquiries. 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) Article 4 (1) of the Ombudsman’s Statute provides that the Ombudsman and his staff ”shall be required not to divulge information or documents which they obtain in the course of their inquiries”. In view of this provision the Ombudsman considered that it would not be appropriate to quote the relevant passage of Mr E.’s e-mail in his decision.

(2) Mr E. had pointed out in his e-mail of 30 May 2000 that the relevant document would be sent to the Commission in Brussels by separate mail.

(3) Mr E.’s e-mail of 30 May 2000 indicates neither the name of the official nor the date of the document.

(4) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(5) Available on the Ombudsman's website (http://www.ombudsman.europa.eu/).

(6) OJ 2001 no. L 145, p. 43.

(7) Articles 39 and 109 of the Conditions of employment of other servants of the European Communities provide that this provision is also applicable to certain other categories of EU staff.