The background to the complaint

1. On 15 February 2012, the complainant, a German national, made a request to Commissioner Oettinger for access to documents. The documents which he requested related to a meeting of the same date concerning energy-saving measures for state-owned buildings and potential plans for EU-wide harmonisation in the matter.

2. Since the Commission did not react to the initial application, the complainant made a confirmatory application on 13 March 2012. Having received no reply, he turned to the Ombudsman.

3. The complainant underlined that Commissioner Oettinger, or his Cabinet, seemed unaware of the rights that EU citizens derived from the Treaties, the Charter of Fundamental Rights and Regulation 1049/2001. That Regulation also provides for an acknowledgment of receipt to be sent to an applicant. The complainant did not receive such an acknowledgment.

4. Referring to another complaint that he had previously submitted to the Ombudsman (complaint 849/2010/KM), the complainant also noted that the Commission was evidently not keeping its assurances that it would deal more diligently with requests for access to documents. He added that he was not making an excessive number of applications; in fact, this was his first application to DG Energy.

The subject matter of the inquiry

5. The complainant submitted the following allegation and claim.

Allegation

The Commission failed to comply with Regulation 1049/2001, when dealing with his request for access to documents.

In support of this allegation, the complainant argued that the Commission failed to send both an acknowledgment of receipt and a substantive reply in relation to his initial and confirmatory applications submitted on 15 February and 13 March 2012, respectively.

Claim

The Commission should comply with Regulation 1049/2001, and reply to the complainant's request for access to documents.

The inquiry

6. The complaint was submitted on 12 April 2012. On 11 May 2012, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint.

7. The Commission submitted its opinion on 6 September 2012, which was forwarded to the complainant for information on 16 November 2012.

8. On the same day, the Ombudsman also wrote to the Commission to ask for further information. The Commission sent its reply on 19 March 2013. It was forwarded to the complainant with an invitation to submit observations. The complainant did so on 18 April 2013.

The Ombudsman's analysis and conclusions

A. Allegation of failure to acknowledge receipt of and to reply to the complainant's request for access and related claim

Arguments presented to the Ombudsman

9. The complainant essentially complained that the Commission failed to reply to his request for access to documents.

10. In its opinion, the Commission explained that, on 21 March 2012, it sent, to what appears to be a support group for the complainant, an e-mail in which it included a link to its relevant website. However, since it "recognise[d] that the complainant may have encountered difficulties in reading the documents online", it sent him a paper version of "the documents" by post on 21 June 2012.

11. On 2 July 2012, the complainant wrote to the Ombudsman to state that he had received two documents from the Commission which he presumed related to his request for access. However, he regretted the fact that there was neither a cover letter nor an apology from the Commission. He considered that the Commission had not fully replied to his request for access, in which he had referred to a meeting that appeared to have taken place in 2012. He concluded by stating that he was not satisfied with the way in which the Commission had dealt with the matter.

12. The Ombudsman asked the Commission to explain the reasons why it considered that the two documents it had sent to the complainant on 21 June 2012 fully responded to his request for access.

13. In its reply, the Commission noted that it had, in the meantime, sent the complainant a letter apologising for the mishandling of his request. It also underlined that the Commissioner had no meetings concerning EU plans for the energetic refurbishment of public buildings on 15 February 2012 or around that period. It also sent him the final version of the Directive, which had, in the meantime, been approved, and a draft interpretative note on the provisions relating to public buildings. It concluded that the complainant had by now received all relevant documents.

14. In its letter to the complainant, the Commission acknowledged that (a) the letter did not receive an acknowledgment of receipt and (b) the documents should have been sent by post and accompanied by a signed cover letter. However, they were not. It went on to apologise to the complainant for this.

15. In his observations, the complainant took note of the Commission's apology and indicated that he considered his complaint settled as far as access to documents was concerned. However, he expressed the hope that the Commission would improve its handling of requests for access to documents in the future. Noting that he had made a number of requests to the Council and that each of them had been acknowledged and replied to on time, he stated that he did not understand why the Commission could not do likewise.

16. He also underlined that he considered it "problematic" for the Commission to have used an e-mail address that it had found through an internet search in order to send him the documents he had requested access to, even though he had chosen to communicate with the Commission by regular post. The Commission could not know whether this was his e-mail address; therefore, the fact that it used that address to reply to him could raise data protection issues. In fact, the complainant did not have access to the internet, and this was the reason he had used the postal service.

The Ombudsman's assessment

17. The Ombudsman is pleased to note that it results from the above that, as far as the substance of the complaint is concerned, the Commission has taken steps to settle the matter to the complainant's satisfaction. The Ombudsman trusts that any further requests of this kind submitted by the complainant will be handled properly and rapidly by the Commission.

18. The complainant considered "problematic" the fact that the Commission sent him an e-mail to an address which it had found through an internet search. The Ombudsman agrees that this was inappropriate and could potentially raise data protection issues. However, since the Commission apologised for not having correctly handled the complainant's request, he considers that there are no grounds for further inquiries into this aspect.

B. Conclusion

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

The Commission has taken steps to settle the matter to the complainant's satisfaction.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 31 July 2013