Dear Mr C.,
Dear Mr C.,
On 3 June 1997 you made a complaint to the European Ombudsman concerning the allegedly unjustified refusal of the European Commission to give you access to certain documents.
On 25 July 1997, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 25 September 1997, which I passed to you on 10 October 1997 with an invitation to make observations, if you so wished. On 2 December 1997, I received your observations on the Commission's opinion.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

On the basis of the Commission decision of 8 February 1994 on public access to Commission documents, Mr C. and Mr C., as attorneys acting on behalf of a group of Italian wine-growers, wrote to the Commission on 13 February 1997 asking to have access to several Commission documents. The request involved the working documents used by the Commission to estimate the compulsory distillation by producers of table wine in the 1993/94 wine year.
The complainants had requested these documents in order to prove that the calculation of the amount to be distilled by each Member State had been made in a discriminatory manner, and that, as a result, Italy had been significantly penalised. They alleged that Italian wine-growers were required to distil a greater quantity of wine than those in other Member States whose production conditions are similar and that the Commission's calculation was incomprehensible. In particular, the complainants believed that the Commission had applied a different reference percentage to the various Member States when determining the respective amounts to be distilled and that the quantity of 12,150,000 hl for Italy had been calculated on the basis of inaccurate national data.
The complainants requested the relevant documents by letters of 13 February and 24 March 1997 respectively. The letters were sent to the Directorate General VI and to the Secretary General of the Commission.
The institution rejected the initial application. In a reply dated 12 March 1997, the Commission's services informed the complainants that, as the decision of the Commission to open a compulsory distillation for the 1993/94 wine year was the subject of judicial proceedings before the Court of Justice of the European Communities, the institution could refuse to release the relevant documents based on the exception provided for in Decision 94/90 (1), regarding the protection of the public interest.
In relation to the confirmatory application by the complainants, the Secretary General of the Commission first informed them on 24 April 1997 that in view of the large number of documents requested, its decision would probably not be taken within one month. On 16 May 1997, the Secretary General sent a further letter to the complainants, which confirmed the refusal of their confirmatory application. The institution also indicated that the complainants should have addressed their request directly to the Court of Justice, since this is the only authority empowered to disclose procedural documents as established by Article 21 of its statute and Article 45 (2) of the Rules of Procedure.
In view of the refusal of the Commission, the complainants asked the Ombudsman on 3 June 1997 to start an inquiry into the matter and to investigate whether an instance of maladministration had taken place.

THE INQUIRY

The Commission's opinion
The European Commission's comments on the complaint are in summary the following:
The complainants requested to have access to Commission documents concerning the calculations for compulsory distillation of table wine in respect of the 1993/94 wine year. These materials had served as the factual support and reference for the Commission to enact Regulation n 343/94 of 15 February 1994 opening compulsory distillation by producers of table wine in respect of the 1993/94 wine year(2).
The Commission pointed out that the legality of this Regulation and its conformity with Community law was the subject of an action pending before the Court of Justice of the European Communities for a preliminary ruling (C- 375/96). Given that situation, the institution could not agree to the release of the requested documents, because such action would have imperilled the defence of public interest in judicial proceedings. Therefore the Commission considered it was empowered to deny access, on the basis of the exception provided for in the decision on public access. This allows the refusal of access to documents where disclosure could undermine the protection of the public interest.
Furthermore, the Commission stated that the complainants should have addressed their request for the disclosure of the documents directly to the Court of Justice. Should this institution order the release of the documents, the Commission could not have denied access to them except in the case of particularly serious "higher reasons".
It referred to the fact that a case bearing on very similar matters was pending in the Court of First Instance (Case T-124/96 Interporc Im-und-Export Gmbh v. Commission)(3).
The complainants' observations
The Ombudsman forwarded the Commission's opinion to the complainants with an invitation to make observations.
In their reply, the complainants contested the reasons given by the Commission in its refusal to disclose the requested documents. They disagreed with the consideration of the documents as a part of court proceedings and the ensuing application of the exception relating to the protection of the public interest. The complainants argued that even if the documents related to ongoing proceedings before the Court of Justice, they could not be taken as part of court proceedings because they had not been prepared for this particular Court case, but existed independently of the proceedings. They ought therefore to be considered as mere administrative documents.
Moreover, the complainants argued that, on the basis of existing Community case-law, when the Commission denies access to documents using an exception of Decision 94/90, it has to specify the reasons for each one of the requested documents, and thus motivate the refusal(4).
The complainants alleged that in this case, by contrast, the Commission had simply denied access on the basis of the protection of public interest, without giving accurate reasons and without striking a balance between its right of defence and the rights of citizens to have access to documents.

THE DECISION

1 Refusal of access to documents connected to court proceedings
1.1 Access to the Commission's working documents assessing the compulsory distillation of wine for the year 1993/94 was refused on the basis of the need to protect public interest, as provided for in the first indent of exceptions of Commission Decision 94/90 on public access to Commission documents.
1.2 In reply to the confirmatory application, the Commission pointed out that the requested documents were instrumental for the enactment of Commission Regulation 343/94 opening compulsory distillation for the 1993/94 wine year, whose legality was being contested before the Court of Justice(5). It argued that the complainants should have addressed their request for documents directly to the Court of Justice.
The Commission concluded therefore that:

"The protection of public interest in the case of court proceedings gives it the power, in the framework of the Code of Conduct, to refuse access to documents which relate to a pending legal case".

1.3 The exception to the general principle of access to Commission documents based on the protection of public interest when the documents at issue are connected to court proceedings has been included in Decision 94/90. The Court of First Instance of the European Communities has already been called to define the scope of this exception to the general principle(6). The Court has stated that,

"[...] a distinction must be drawn between documents drafted by the Commission for the purpose of a particular court case [...], and other documents which exist independently of such proceedings. Application of the exception based on the protection of the public interest can be justified only in respect of the first category of documents"(7).

1.4 The Ombudsman notes that the documents requested by the complainants had been prepared to evaluate the legislative options of the Commission, and were not created to serve a particular purpose in the context of a court proceeding. These documents are therefore independent of the court case regarding the legality of Commission Regulation n 343/94, for which, however, they laid the ground.
1.5 Therefore, in line with the case law of the Community courts, the Ombudsman considers that the Commission has wrongly refused access to Commission documents on the grounds that the documents in question were connected to court proceedings. Such action constitutes an instance of maladministration, and the Ombudsman shall address a critical remark to the Commission as regards this aspect of the case.
2 Failure to provide accurate information
2.1 In their letter to the Ombudsman, the complainants also argued that the Commission's refusal of their request did not comply with established Community case-law since it did not refer to each specific document.
2.2 Since the Ombudsman has concluded that the Commission should reconsider its decision in this case, there is no need to assess the merits of this additional claim.
2.3 In view of the above circumstances, it appears reasonable to infer that after the extension date of the list, namely 31 December 1996, the validity of the list had expired. The Ombudsman therefore finds that there is no evidence of maladministration in relation to this aspect of the case.
3 Conclusion
3.1 The Ombudsman's inquiries into this case have revealed a case of maladministration on the part of the European Commission. It appears necessary therefore to make the following critical remark:

The Ombudsman notes that the documents requested by the complainants had been prepared to evaluate the legislative options of the Commission, and were not created to serve a particular purpose in the context of a court proceeding. These documents are therefore independent of the court case regarding the legality of Commission Regulation n 343/94, for which, however, they laid the ground.

Therefore, in line with the case law of the Community courts, the Ombudsman considers that the Commission has wrongly refused access to Commission documents on the grounds that the documents in question were connected to court proceedings. Such action constitutes an instance of maladministration.

3.2. Commission Decision 94/90 expressly provides for an applicant whose confirmatory application for access to documents is rejected to be informed of the possibility of complaint to the Ombudsman. The Ombudsman's critical remark implies that the Commission should reconsider the complainants' confirmatory application dated 24 March 1997 and give access to the documents requested, unless one of the exceptions contained in Decision 94/90 applies. Since it is for the Commission to carry out this reconsideration and communicate the result to the complainants, the Ombudsman closes the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

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(1) 94/90/ECSC, EC, Euratom: Commission Decision of 8 February 1994 on public access to Commission documents, OJ L 046, 18.02.94 p. 0058-0061

(2) Commission Regulation (EC) No 343/94 of 15 February 1994 opening compulsory distillation as provided for in Article 39 of Council Regulation (EEC) No 822/87 and derogating for the 1993/94 wine year from certain detailed rules for the application thereof. OJ L 044 , 17.02.1994 p.9

(3) Case T-124/96. Judgment of 6 February 1998 Interporc Im- und Export GmbH v Commission, [1998] ECR II-0231.

(4) Case T-105/95, WWF UK (World Wide Fund for Nature) v. Commission of the European Communities [1997] ECR II-0313

(5) The case has already been decided by judgment of the Court (Fifth Chamber) of 29 October 1998; Case C-375/96, Galileo Zaninotto v Ispettorato Centrale Repressione Frodi (reference for a preliminary ruling: Pretura circondariale di Treviso); not yet reported

(6)Case T-83/96, Gerard van der Wal v Commission of the European Communities [1998] ECR II-545

(7) Supra case T-83/96, par. 50.