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Decision of the European Ombudsman closing the inquiry into complaint 685/2014/MHZ against the European Commission

This case concerned an unsuccessful application for access to documents. The Commission refused to disclose its correspondence with the Polish authorities regarding its preliminary inquiries on the very high costs of filing legal claims relating to public procurement proceedings in Poland. The Commission had been seeking to establish whether the relevant Polish legislation was consistent with EU law. Claiming the need to protect an ongoing investigation, it invoked an exception to the right of public access provided for in the relevant legislation (Regulation 1049/2001). The Commission did not accept the complainant's argument that there was an overriding public interest in disclosure which disapplied the exception being relied upon nor that it was relevant that the national legislation in question was then being challenged before the Polish Constitutional Tribunal ('the PCT').

The Ombudsman inquired into the issue and took the view that the Commission had not properly justified its decision to refuse access to the documents in question. The Ombudsman also took the view that the annulling of the relevant national legislation by the PCT has rendered the Commission's inquiries redundant. Taking into account this legal development and for the sake of procedural economy and fairness, the Ombudsman suggested that the complainant be granted access to the requested documents without having to submit a new request. The Commission refused categorically. Moreover, it did not give a fuller explanation for its refusal than the one it had provided in its reply to the confirmatory application. The complainant informed the Ombudsman that, in the meantime, he had now got access to the documents following a new request for access under Regulation 1049/2001 made in the knowledge that the Commission had closed its investigation. In these circumstances, the Ombudsman decided to close the case with a critical remark.

The background to the complaint

1. In accordance with EU law[1], bidders in tender procedures for public contracts who consider that a contract has been awarded unfairly should have access to a rapid and effective appeal procedure before a review body and ultimately before a court[2].

2. In 2009, Poland amended a law in order to allow for a substantial increase in the relevant court fees, which became approximately 50 times higher than those applicable to other civil matters. In 2011, a consortium of two companies challenged that Polish law before the Polish Constitutional Tribunal (hereinafter, the 'PCT'), alleging an infringement of the Polish Constitution[3]. Concurrently, the Commission launched an EU Pilot procedure in relation to the alleged incompatibility of the Polish law on court fees (as changed in 2009) with the relevant EU directives[4]. An 'EU Pilot' constitutes a preliminary phase in possible infringement proceedings.

3. On 27 November 2013, the complainant, acting on behalf of a Polish consultancy firm, asked the Commission (DG Internal Market and Services) for access to correspondence between the Commission and Poland relating to the EU Pilot case. The request was made under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents[5].

4. On 4 February 2014, the Commission replied. It first identified the documents falling within the scope of the complainant's request (EU Pilot File 5389/13/MARK; Additional question sent by the Commission to Poland; Reply from the Polish authorities dated 3 October 2013; Additional reply from the Polish authorities dated 30 January 2014.) It then refused access to all these documents on the basis of the third indent of Article 4(2) of Regulation 1049/2001[6] which provides for an exception to public access, relating to the protection of the purpose of investigations. The Commission stated that "disclosure might have a damaging effect on investigations the Commission may carry out in the framework of possible infringement proceedings under Article 258 TFEU."

5. The Commission said that in the event that no solution can be found after having had recourse to the EU Pilot procedure, it launches formal proceedings by sending a letter of formal notice (the first step of the formal pre-litigation phase). The Commission contended that under these circumstances, "early disclosure of the documents requested will certainly adversely affect the dialogue between the PL authorities and the Commission". It added that in order for it to be able to carry out its tasks and to settle the dispute, preferably without having to refer the case to the Court of Justice, there has to be a climate of mutual trust between the Commission and the Member State concerned, throughout the different stages of the procedure and until the investigation is definitively closed.

6. On 7 February 2014, in accordance with the procedural requirements of Regulation 1049/2001, the complainant submitted a confirmatory application to the Commission's Secretary-General. He argued that there is an overriding public interest in disclosure, adding that such disclosure would not jeopardise the mutual trust or dialogue between the Commission and the Polish authorities but would instead protect the right of entrepreneurs to be heard.

7. On 12 March 2014, the Secretary-General of the Commission confirmed the original refusal on the same grounds. She explained that, through the EU Pilot procedure, the Polish authorities are invited to confirm whether the allegations are valid and give the relevant explanations. The requested documents thus form part of a preliminary investigation of a possible breach of EU law. The EU Pilot proceedings were "fully on-going" and were intended to enable the Commission to decide whether to launch formal infringement proceedings against Poland under Article 258 TFEU. The Article 258 TFEU procedure comprises two consecutive stages: the pre-litigation administrative procedure and the judicial stage before the Court of Justice of the EU (CJEU). The purpose of the pre-litigation stage is to allow the Member State to put an end to an alleged infringement, to enable it to exercise its rights of defence and, where necessary, to define the subject matter of the dispute with a view to the Commission bringing an action before the CJEU. The Secretary-General then referred to the relevant case-law[7].

8. The Secretary-General referred to the judgment of the Court of Justice in Liga para a Proteccao da Natureza[8] and to the judgment of the General Court in ClientEarth[9]. On the basis of these judgments, which confirmed the view of the (then) Court of First Instance in the Petrie judgment[10], the Secretary-General concluded that there is a general presumption that the disclosure of the documents requested would undermine the purpose of the (preliminary) infringement proceedings protected by the third indent of Article 4(2) of Regulation 1049/2001.

9. As regards the existence of an overriding public interest in disclosure, the Secretary-General said that such interest must be public and has to outweigh the interest protected by the relevant exception in Article 4(2) of Regulation 1049/2001. In his application, the complainant argued in this respect that there exists a significant public interest in disclosure because (i) the Polish authorities are frequently criticised for setting high fees for an appeal in public procurement cases; (ii) several complaints had been lodged in this respect before the PCT; (iii) due to EU funds, the market for public procurement in Poland is significant and there is a wide public interest in strengthening the review of the proceedings conducted by the authorities which award contracts and of the rulings of the administrative body known as the 'Chamber of appeal'. The high cost of applications to the civil courts against the decisions of the Chamber of appeal prevents entrepreneurs from filing such applications and limits their access to justice. The Secretary-General replied to these arguments that "the public interest is better served in this case by ensuring that the on-going investigations will be completed as quickly as possible and without any undue external pressure from the third parties. Indeed, the investigations are expected to provide clarity about the existence or not of the situation described by the complainant."

10. As regards the possibility of granting partial access, the Secretary-General stated that the documents concerned were, at that stage, entirely covered by the exception laid down in the third indent of Article 4(2) of Regulation 1049/2001.

11. On 10 April 2014, the complainant submitted a complaint to the European Ombudsman concerning the Commission's refusal to grant access. On 15 April 2014, the PCT delivered its judgment (hereinafter the 'Judgment'). It annulled the Polish law which was at the centre of the EU Pilot in question on the grounds that it did not comply with the Polish Constitution.

The inquiry

12. The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

1) The Commission provided wrong justifications for its refusal to grant access to the requested documents.

2) The Commission should grant access to the requested documents.

13. As regard the claim, the Ombudsman invited the Commission to take into account, as a new factor, the PCT Judgment of 15 April 2014 which concerns the matter to which the requested documents relate. The Ombudsman considered that in light of the above Judgment, EU-Pilot 5389/13/MARK became redundant and should have been closed. Therefore, the Ombudsman proposed that the Commission could grant access to the requested documents in light of the new circumstances. Moreover, for reasons of procedural economy and fairness, and in light of the PCT's judgment, the Ombudsman suggested that the complainant need not submit a new request for access to the documents.

14. In the course of the inquiry, the Ombudsman received the opinion of the Commission on the complaint and, subsequently, gave the complainant the opportunity to submit observations on the Commission's opinion. The complainant did not avail himself of this opportunity. He informed however the Ombudsman's services that, after having received the Commission's opinion in which it refused the Ombudsman's proposal, he made a new request for access to documents under Regulation 1049/2001 in the knowledge that the Commission had ended its investigation against Poland. In reply, the Commission granted full access. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Allegation that the Commission provided wrong justifications for its refusal to grant access to the requested documents and related claim

Arguments presented to the Ombudsman

15. In support of his allegation, the complainant argued that there was a significant public interest in the disclosure of the documents since the Polish authorities were severely criticised for having introduced disproportionately high court fees for public procurement appeals. He explained that the relevant legislation had been challenged before the PCT and, at the time, the Judgment was still pending. The complainant insisted that the high court fees severely restrict access to justice in Poland.

16. In its opinion, the Commission reiterated the reasons for the refusal which it had given in its previous decisions. In order to address the new factor in the case, that is the PTC's Judgment, the Commission said that the complainant could submit a fresh request for access to the same documents as the legal situation had changed. It stated that according to settled case-law, the legality of the Union measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted. At the relevant time, the Commission correctly applied the exception laid down in the third indent of Article 4(2) of Regulation 1049/2001. It did not accept the argument in favour of 'procedural economy and fairness' put forward by the Ombudsman. It took the view that the complainant needs to follow the (two-stage) procedure for submitting requests for access to documents laid down in Articles 6, 7 and 8 of Regulation 1049/2001. The Commission refused to permit an exception in this case as it stated that it would open the floodgates, lead to legal uncertainty and create an unnecessary burden for the Secretary-General who, under the applicable rules, may be called upon to review the initial decision taken by the Directorate-General concerned but cannot substitute himself/herself for the latter. It explained that if it were to follow the approach suggested by the Ombudsman, it would act unfairly towards other applicants, and, in any event, the Commission cannot presume that the complainant still has an interest in having access to the requested documents, following the Judgment delivered by the PCT.

17. Finally, the Commission upheld its previous decision not to disclose the documents and deemed the complainant's claim unfounded.

The Ombudsman's assessment

18. First, the Ombudsman would like to express her disappointment at the Commission's formalistic approach in reply to her suggestion to disclose the requested documents. The Ombudsman understood that, reasonably, the Commission would have closed the EU Pilot proceedings after the Polish law, challenged by that very EU Pilot, was quashed by the PCT Judgment. Legally, this new fact could not by itself have renewed the procedure for access provided for by Regulation 1049/2001. The Ombudsman however suggested a pro-active disclosure. She is unaware of any provisions which forbid proactive disclosure even if the procedure under Regulation 1049/2001 has already been used. She is also surprised that the Commission considers proactive disclosure to be more burdensome for the administration than disclosure under Regulation 1049/2001.

19. Second, the Ombudsman points out that the principles of good administration require that applicants for access to documents receive a comprehensive explanation in reply to their arguments in favour of disclosure. While the Ombudsman considers that, as regards the duty to state reasons, the Commission has explained in great detail both the relevant case-law concerning the general presumption mentioned above (starting with the Petrie judgment and ending with EarthClient[11] and Liga da Proteccao da Natureza) and why, in light of that case-law, it considered that the documents in question were covered by the exception set out in the third indent of Article 4(2) of Regulation 1049/2001, the Ombudsman is not convinced by the Commission's interpretation of an "overriding public interest" in this case. In her reply to the confirmatory application, the Secretary-General did not deny the existence of a public interest in disclosure but simply found that the public interest would be "better served" if the ongoing investigations were concluded "as quickly as possible and without any undue external pressure from third parties".

20. Although it knew that the Polish law on court fees was then being reviewed in the proceedings before the PCT, the Commission did not explain why disclosure would necessarily slow down its political negotiations aimed at changing that very same law[12]. The Commission did not explain what undue external pressure from third parties having an impact on the negotiations could be exercised in the given circumstances. Indeed, the Secretary-General could not have been unaware (especially since the Commission was in contact with the Polish authorities) that at the time of its reply to the confirmatory application (12 March 2014), the proceedings before the PCT had reached their final stage (the Judgment was delivered on 15 April 2014). The matter was widely discussed in Poland and the stance of the Polish government was well known. The Polish government was very well aware of the constitutional application and the ongoing public debate, and it is hard to see how public access to the requested documents could have had an impact on the Polish authorities' stance in their contacts with the Commission or on the course of these negotiations.

21. Moreover, the Ombudsman is concerned by the Commission's statement that the public interest is "better served" by non-disclosure. This wording may suggest that the Commission adopts a paternalistic attitude towards EU citizens by deciding in which way their interests are better served.

22. In light of the foregoing, the Ombudsman considers that the Commission’s assessment of the possible existence of an overriding public interest in disclosure was not persuasive. The Commission failed to refer to the specific circumstances of its negotiations with the Polish authorities or to the proceedings before the PCT. The Ombudsman also notes that the Commission, in providing its opinion in the course of this inquiry, did not avail itself of the opportunity to provide a fuller explanation of its assessment. These failures to provide detailed reasons for its decisions constituted an instance of maladministration.

23. In the absence of detailed reasons for its decisions on the matter,  , it remains the case that there may have been an overriding public interest justifying disclosure. As the General Court has recently held[13], the general presumption applicable to documents relating to infringement proceedings (established in Joined Cases C-514 P and C-605/11 P Liga da Proteccao da Natureza and Finland v Commission, paragraph 45 and the judgments cited therein) does not exclude the possibility of demonstrating that there is an overriding public interest justifying disclosure of the document concerned by virtue of the public interest test provided for in Article 4(2) of Regulation 1049/2001.

24. As the complainant has in the meantime got access[14] to the documents in question, the Ombudsman considers that it is not necessary to pursue this issue further. She therefore closes the case with two critical remarks.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following critical remarks:

(1)The Commission's failure to demonstrate that it had properly assessed the possible existence of an overriding public interest constituted maladministration.

(2)  Following the PCT Judgment, the Commission's failure to adopt a proactive approach to the release of the documents, and its insistence on the need for the complainant to make a fresh access application (which the complainant ultimately resigned himself to making) constituted maladministration.

The complainant and the Commission will be informed of this decision.

 

Emily O'Reilly

Strasbourg, 13/01/2015

[1] Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and Directive 92/13/EEC, with regard to improving the effectiveness of review procedures concerning the award of public contracts, OJ 2007 L 335, p. 31.

[2] Article 2(9) of Directive 2007/66/EC: "Where bodies responsible for review procedures are not judicial in character ... provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 234 of the Treaty and independent of both the contracting authority and the review body."

[3] The consortium argued that that the fees in question limit the right to an effective remedy before a court or tribunal laid down in Article 45 of the Polish Constitution, and that they are established in breach of the principle of proportionality enshrined in Article 31 of the Polish Constitution in that they can possibly limit constitutional rights and freedoms. On 28 June 2013, the Polish Ombudsman intervened before the Constitutional Court in support of the consortium.

[4] Supra, footnote 1.

[5] 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 2001 L 145, p. 43.

[6] The third indent of Article 4(2) of Regulation 1049/2001 provides that "the institution shall refuse access to a document where disclosure would undermine the protection of ... the purpose of inspections, investigations and audits unless there is an overriding public interest in disclosure".

[7] Case C-362/01 Commission v Ireland [2002] ECR I-11433, paragraph 18.

[8] Joined Cases C-514/11 P and C-605/11 P LPN and Finland v Commission, judgment of 14 November 2013, not yet published in the ECR, paragraphs 55, 96-98.

[9] Case T-111/11 Client Earth v Commission, judgment of 13 September 2013, not yet published in the ECR, paragraph 75.

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

[11] It should be noted that on 26 November 2013, ClientEarth submitted an appeal to the Court of Justice against the judgment of the General Court in case T-111/11. The Court of Justice has not yet handed down judgment.

[12]  The Polish Ombudsman intervened in this case in support of the applicants and argued against the law in question.

[13] Case T-447/11 Lian Catinis v Commission, judgment of 21 May 2014, not yet published in the ECR, paragraph 43.

[14] Following the PCT Judgment, the Commission dropped its investigation of the case and the complainant made a fresh, and successful, access application for the documents in question.