The background to the complaint

1. The present complaint is about the principles governing the Commission's public reports under the 'Cooperation and Verification Mechanism' (CVM)[1] and public access to documents. The complaint was brought by an association which represents the interests of Bulgarian duty-free operators in Bulgaria.

2. The CVM was adopted within the framework of the Bulgarian accession to the European Union. Specifically, Articles 37 and 38 of the Act of Accession of the Republic of Bulgaria to the European Union empower the Commission to take appropriate measures in case of (i) an imminent risk to the proper functioning of the internal market, and (ii) serious shortcomings in Bulgaria's implementation and application of EU rules in the field of justice, freedom and security[2]. On this basis, the Commission adopted a decision on 13 December 2006 establishing a mechanism for cooperation and verification of progress in Bulgaria to address specific benchmarks in the areas of judicial reform and the fight against corruption and organised crime[3].

3. The CVM sets six specific benchmarks, which are annexed to the Commission's Decision. More specifically, Benchmark 5 requires Bulgaria to "[t]ake further measures to prevent and fight corruption, in particular at the borders and within local government". The Commission is entrusted with the task of monitoring the progress being made towards achieving the objectives identified in the benchmarks. Bulgaria shall report to the Commission by the end of March each year[4], and the Commission will issue reports "as and when required and at least every six months"[5].

4. On 14 February 2008, the Commission issued an Interim Report under the CVM ('the Interim Report') concerning Bulgaria's progress under Benchmark 5. In this report, it stated that: "Duty-free shops on Bulgarian territory at the external borders to Turkey and Serbia and duty-free petrol stations on Bulgarian territory continue to be tolerated and have seen a substantial increase in turnover during 2007. They are a focal point for local corruption and organised crime."

5. Soon afterwards, the Bulgarian Government proposed changes to the 2006 Duty-Free Trade Act, which included the closure of all land-based duty-free shops and petrol stations, the revocation of licenses and the expropriation of all buildings housing the duty-free shops and petrol stations.

6. By letter dated 27 February 2008, the complainant contacted the Commission, expressing its concern over the government's proposals and contesting the three statements contained in the Interim Report, namely (a) "continue to be tolerated", (b) "substantial increase in turnover in 2007" and (c) "focal point for local corruption and organised crime."

7. As regards the first statement, the complainant argued that it implied that the operation of duty-free shops was somehow illegal. It explained that duty-free shops at Bulgaria's external land borders operated in the same way as duty-free shops at the external land borders in other Member States and that the 2006 amendment of the Duty-Free Trade Act was made in order to ensure the compatibility of the Bulgarian regime with the relevant EU legislation in force prior to Bulgaria's accession to the EU.

8. As regards the second statement, the complainant argued that it was incorrect. The complainant submitted official data from the Bulgarian National Customs Agency (NCA), which showed a 34.5% decline in sales in 2007.

9. As regards the third statement, the complainant expressed its discontent that such a statement was made with no supporting evidence. The complainant stated that it was not aware of any investigation into corruption or crime involving duty-free border shops on Bulgarian territory.

10. The complainant concluded its letter by expressing reservations concerning the procedure followed by the Bulgarian Government in order to change the 2006 Duty-Free Trade Act. The proposals were drafted in haste and with no impact assessment. The only possible explanation for such a manner of proceeding on the matter was to assume that the Bulgarian Government had acted on the Commission's demands. Given that the Commission publicly welcomed the Bulgarian Government's proposals, the complainant asked the Commission to clarify its position on whether it had asked the Bulgarian Government to close the duty-free border shops.

11. On 5 March 2008, the Commission held a meeting with the complainant, its representatives and advisers, (the 'Meeting'). During the Meeting, the complainant requested the Commission to provide information on the allegations made against the duty-free sector in the Interim Report and provided the Commission with data from the Bulgarian NCA regarding duty-free sales in Bulgaria. In contrast to the Commission's statement in its Interim Report, the data obtained from the Bulgarian NCA showed a significant decline in sales from 2006 to 2007. The complainant requested the Commission to withdraw its allegations in its subsequent report, which was set to be published in July 2008.

12. By letter dated 24 March 2008, the complainant elaborated on the operation and turnover of duty-free shops and duty-free petrol stations in Bulgaria. Moreover, the complainant requested the Commission to provide access to the minutes of the Meeting.

13. In its reply of 29 April 2008, the Commission reassured the complainant that all the information and comments it provided would be taken into consideration in the preparation of the July 2008 Report. The Commission also explained that the decision to close down duty-free shops and petrol stations was an independent decision of the Bulgarian authorities, which it has no powers to instruct. However, the Commission confirmed that it welcomed the government proposal to close down the duty-free shops and petrol stations which, on the basis of numerous independent sources, raised concerns with regard to their links with organised crime and local corruption.

14. In the same letter, the Commission refused access to the minutes of the Meeting on the basis of Article 4(2), third indent of Regulation 1049/2001[6].

15. By letter dated 19 May 2008, the complainant made a confirmatory request for the minutes of the Meeting. In the same letter, the complainant disputed the data brought forward by the Commission in support of its statement that duty-free shops showed an increase in turnover in 2007 and were a focal point of corruption and organised crime. The complainant expressed its concern that such a claim was made in an official report without any supporting evidence.

16. In the meantime, on 23 May 2008, the Bulgarian Parliament approved the Government's proposal to amend the 2006 Duty-Free Trade Act and close down the duty-free shops and petrol stations at the land borders with Turkey and Serbia.

17. On 2 July 2008, the Commission acknowledged receipt of the confirmatory request and noted that the complainant's letter dated 19 May 2008 was registered on 12 June 2008. The Commission noted that the time-limit for handling the application would expire on 2 July 2008 but that that time-limit would have to be extended to 25 July 2008.

18. On 23 July 2008, the Commission published its next report under the CVM (the 'July Report'), in which it stated that "Bulgaria has made progress on local corruption, by introducing new administrative procedures, in particular for the border police, which reduce the possibilities for corruption. Bulgaria closed duty-free shops and duty free petrol stations which were allegedly focal points for local corruption and organised crime."[7]

19. On 24 July 2008, the Commission replied to the complainant's confirmatory application. In its letter, the Commission made a preliminary remark to the effect that the private interests of the applicant may not be taken into account when assessing whether or not access to a document can be granted on the basis of Regulation 1049/2001. After outlining the operation of the CVM and referring to both the Interim Report and the July Report, the Commission stated that disclosure of the minutes of the Meeting would seriously undermine the Commission's decision-making process within the framework of the CVM and is therefore covered by the exception under Article 4(3), first paragraph of Regulation 1049/2001.

20. On 17 March 2009, the complainant lodged the present complaint with the Ombudsman.

The subject matter of the inquiry

21. The Ombudsman opened an inquiry into the complainant's allegations against the Commission. The complainant alleges that the Commission:

(1) made incorrect and unsubstantiated allegations against the Bulgarian duty-free sector in its Interim Report, which it failed to withdraw in its July Report.

(2) failed to provide access to the minutes of its meeting with the complainant on 5 March 2008.

(3) delayed the handling of the complainant's confirmatory application for access.

The inquiry

22. On 22 April 2009, the Ombudsman sent a request for an opinion to the Commission.

23. On 6 August 2009, the complainant wrote to the Ombudsman and requested that the present complaint be treated as a matter of priority. On 11 August 2009, pursuant to Article 10.2 of the Ombudsman's Implementing Provisions[8], the Ombudsman granted the request.

24. On 28 August 2009, the Commission delivered its opinion. On 23 September 2009, the complainant submitted its observations.

25. On 8 October 2009, the Ombudsman informed the complainant and the Commission that he considered it necessary to inspect the documents, which the Commission took into account in drafting Section 2.2.5 of its Interim Report, as well as the minutes of the Meeting. On 10 November 2009, the Ombudsman's representatives carried out an inspection of the above documents at the Commission's premises in Brussels. On 25 November 2009, the Ombudsman sent his inspection report to the complainant. On 9 December 2009, the complainant submitted its observations on the inspection report.

26. On 14 October 2010, the Ombudsman made draft recommendations to the Commission. On 22 February 2011, the Commission submitted its detailed opinion which was forwarded to the complainant. On 29 March 2011, the complainant submitted observations on the Commission's detailed opinion.

27. In its observations on the Commission's detailed opinion, the complainant requested for a copy of the present decision in Bulgarian.

28. It should be pointed out that, in accordance with Article 15.2 of the Implementing Provisions[9], the language of the proceedings is determined by the language in which the complaint is submitted. In the present complaint, the complaint itself and virtually all supporting documents have been submitted in English. The Ombudsman would therefore be entitled to decline the request.

29. However, it is obvious that the complainant is an association representing the interests of economic operators, which may be natural or legal persons, that are either Bulgarian nationals or established in Bulgaria. At the same time, the inquiry lends credence to the view that the case at hand is of public interest in Bulgaria.

30. In light of these considerations, the Ombudsman considers that declining the complainant's request would run counter to the attainment of one of the fundamental citizens' rights in accordance with Article 20(d) of the Treaty on the Functioning of the European Union[10] and Article 41(4) of the Charter of Fundamental Rights of the European Union[11]. He therefore grants the request and will provide a translation of the present decision in Bulgarian as soon as this is available.

The Ombudsman's analysis and conclusions

A. The Commission's allegations against the Bulgarian duty-free sector

Arguments presented to the Ombudsman

31. In its complaint, the complainant contested the statements made by the Commission in its Interim Report and alleged that the Commission's allegations made against the Bulgarian duty-free sector were based on false data. The complainant argued that the Commission based its Interim Report on information given to it by the Centre for the Study of Democracy (CSD), a Bulgaria-based NGO, which receives funding from the European Commission. In failing to substantiate its statements, the Commission abused its powers under the CVM.

32. As regards the content of the Interim Report, the complainant argued that the statement that duty-free shops and petrol stations "continue to be tolerated" insinuated that the operation of duty-free outlets was somehow illegal. However, duty-free outlets operate at the external borders of other EU Member States with non-Member States. Moreover, the 2006 Duty-Free Trade Act governing the operation of duty-free outlets in Bulgaria was drafted in close consultation with the Commission's Directorate-General for Taxation and Customs Union (TAXUD) in order to harmonise Bulgarian legislation with the Union acquis.

33. As regards the statement that duty-free shops and petrol stations "have seen a substantial increase in turnover during 2007", the complainant provided official data from the Bulgarian NCA to demonstrate that the combined duty-free turnover from 2006 to 2007 registered a 34.5% decline.

34. As regards the Commission's statement that Bulgaria's duty-free border shops were "a focal point for local corruption and organised crime", the complainant argued that the Commission did not provide any evidence to substantiate this allegation. The complainant indicated that there were no records of judicial investigations of any duty-free shop or petrol station operators in Bulgaria. Furthermore, the Bulgarian NCA audited the accounts of all duty-free shops and petrol stations over five years. The complainant provided a letter from the Director of the Agency stating that the audit revealed no evidence of wrongdoing in the activities of economic operators at the land borders of Bulgaria during the above-mentioned period.

35. In its opinion, the Commission explained that it had consulted various sources, "including diplomatic representations from Member States and third countries, experts, civil society and media." The Commission argued that it never stated, nor meant to allege, that duty-free trade in general is illegal. However, it outlined that it did have reservations concerning duty-free trade in Bulgaria. The Commission's reservations concerned practices of duty-free operators "which seemed to be at variance with Community VAT legislation" and the great difficulty of controlling duty-free shops located at land borders. In this regard, the Commission referred to the Recommendation of the Customs Cooperation Council (CCC) of 16 June 1960 concerning tax-free shops[12]. The Commission argued that its "sources confirmed that the concerns of the Customs Cooperation Council on the control of the duty-free shops at land borders proved correct in the case of Bulgaria."

36. As regards its statement about the "substantial increase in turnover during 2007", the Commission argued that "data available to the Commission shows a substantial increase in sales over several years since 2001." The increase in turnover was linked to organised crime. In fact, the Bulgarian government seemed to share this analysis by deciding to close the duty-free shops.

37. As regards the statement that duty-free shops are "a focal point for local corruption and organised crime", the Commission was not convinced by the argument that no duty-free shop owner has ever been convicted of a felony.

38. The Commission concluded its opinion by stating that "[i]n preparing the interim report, the Commission took into account various, often confidential, sources of information. Many of the sources raised concerns with regard to smuggling and irregularities related to the operation of duty-free shops and petrol stations." On the basis of the information collected, the Commission criticised the operation of duty-free shops, and in its July Report welcomed "an independent decision of the Bulgarian government to close down duty-free petrol stations and shops at the land borders with non-EU countries."

39. In its observations, the complainant was critical of the Commission's opinion. In summary, it argued that "the Commission seems to have based its allegations wholly on information it did not bother to verify from sources it refuses to disclose." The complainant argued that the Commission failed to cite a single, verifiable source to substantiate the serious allegations against duty-free shops.

40. As regards the Commission's statement that duty-free shops continue to be tolerated at border areas on Bulgarian territory, which implies that duty-free shops are somehow illegal, the complainant argued that the Commission should not continue citing the 1960 CCC Notice. In this regard, the complainant pointed out that EU legislation allows Member States to exempt excisable goods sold from land border duty-free shops from excise and other taxes just as they do for duty-free shops located at airports or ports[13].

41. At the same time, if the Commission claimed that information from unnamed sources indicated that illegal activities were occurring at duty-free shops and fuel stations, it should explain what these infringements were, when they occurred and who was responsible.

42. As regards the statement about "a substantial increase in turnover during 2007", the complainant rejected the explanation in the Commission's opinion that statistical data differ with respect to specific years and that duty-free sales had shown a substantial increase since 2001. The complainant stated that it was not aware of such a variance. In its view, the statistical data published by Bulgaria's NCA constitute the sole official record of duty-free sales of excise goods in Bulgaria. These data clearly show a decline in sales between 2006 and 2007 and directly contradict the Commission's statement in the Interim Report.

43. As regards the Commission's arguments in defence of the statement that Bulgarian duty-free shops are "a focal point of local corruption and organised crime", the complainant argued that they are "feeble and [that they] demonstrate an extraordinary, unique logic." The complainant argued that the Commission ignored the fact that there were no records of any judicial investigations into duty-free shops or petrol stations, as well as the comprehensive audit by the NCA, which showed no impropriety. Instead, the Commission claimed that the absence of a criminal conviction did not mean that all business activities were lawful and legitimate. The complainant took the view that "[t]his is absurd and insinuates that duty-free shop and fuel station operators should be compelled to somehow prove their innocence to the Commission rather than the Commission being obliged to demonstrate evidence of their wrongdoing."

44. It is recalled that following receipt of the complainant's observations, the Ombudsman's representatives inspected the sources which the Commission took into account in drafting Section 2.2.5 of its Interim Report, as well as the minutes of the Meeting. The Ombudsman drafted an inspection report, which he forwarded to the complainant for observations and in which he noted that the Commission received information from the Bulgarian Government, but also from embassies of Member States and third countries, experts, NGOs, international organisations and the Commission’s own services. The inspection file contained recent e-mail confirmations concerning information given orally to the Commission by embassies of the Member States. A copy of the file was given to the Ombudsman's representatives on the condition that it would not be disclosed to the complainant[14].

45. In its observations on the Ombudsman's inspection report, the complainant expressed doubt as to whether the Commission's confidential sources would justify the broad allegations made against the complainant in the Interim Report. Moreover, the complainant stated that the Commission should not accept at face value information presented to it but must seek to verify the claims made.

The Ombudsman's assessment leading to draft recommendations

46. In his assessment leading to draft recommendations, the Ombudsman made a preliminary remark noting that he has not conducted a separate investigation into the facts of the case in order to (i) make a subsequent comparison with the factual findings underpinning the Commission's statements, and (ii) assess whether they were correct and substantiated. Rather, the Ombudsman focused his review on whether, taking into account the explanations provided, the Commission's statements in the Interim Report were adequately substantiated. For the statements here in contention to be adequately substantiated, a sufficient link between those statements and the relevant evidence ought to have been established. Moreover, that evidence should have been adequate in light of the content of the statements and the context in which they were made.

47. The issue whether the statements at issue were adequately substantiated arose on two occasions, first, at the stage when these statements were presented in the Interim Report, a report which was published; and second, within the framework of the subsequent exchanges with the complainant, an association representing interests which are directly affected by these statements. Naturally, a Report under the CVM is not expected to provide all justifications for the statements contained in it. Consequently, the question whether the Commission substantiated these statements should be assessed within the framework of its exchanges with the complainant. In this context, the Ombudsman also considered it useful to take into account that a citizen reading the Commission's Report under the CVM would infer that the Commission was in possession of concrete evidence to substantiate the statements made. Clearly, if the Commission failed to substantiate the statements made, then these statements must also be presumed to be misleading to citizens[15].

48. The Commission's task to 'substantiate' the statements made is complicated by the fact that the Commission considered the evidence available to it to be of a confidential nature. While the question of confidentiality of information does not fall within the scope of the present inquiry, the issue of substantiating findings that are made, even in part, on the basis of confidential documents, must be also incidentally examined. To this end, the Ombudsman, besides requesting an opinion from the Commission, also inspected the documents on which the Commission based its findings. The Ombudsman proceeded with his analysis on the basis of all information obtained while respecting the confidentiality of the information, where applicable.

49. Moving on to the assessment of the compliance of Commission's statements with the rules and principles of good administration, the Ombudsman noted that the European Code of Good Administrative Behaviour (ECGAB)[16] provides that:

"... the official shall respect the fair balance between the interests of private persons and the general public interest"[17], "... abstain from any arbitrary action adversely affecting members of the public..."[18] and "... take into consideration the relevant factors and give each of them its proper weight in the decision, whilst excluding any irrelevant element from consideration."[19]

Moreover, good administration requires that the Union institutions should act with care, caution[20] and diligence[21]. In view of the above, the Ombudsman opined that it was clear that the Commission is required to carry out its tasks under the CVM in a manner which is proportionate, impartial, objective and diligent[22].

50. The Ombudsman disaggregated the Commission's statement, contained in Section 2.2.5 of its Interim Report, into the following three distinct statements:

(a) The Bulgarian Government continues to tolerate duty-free shops and petrol stations;

(b) The turnover of Bulgarian border-based duty-free shops and petrol stations saw an increase in 2007 compared to 2006; and

(c) The Bulgarian border-based duty-free shops and petrol stations are a focal point of local corruption and organised crime.

51. The Ombudsman noted that the statement "continues to tolerate" is linked to the Commission's statement that the duty-free shops and petrol stations are "a focal point of corruption and organised crime" and is potentially misleading when taken in conjunction with (c). If the Commission were justified in making a public statement that the Bulgarian duty-free shops constituted a focal point for corruption and organised crime, it follows that the Commission would be justified in stating that the Bulgarian Government should not continue to tolerate them. This is due to the importance of the matter at hand with respect to the functioning of the internal market, the establishment of an area of justice, freedom and security, as well as to budgetary considerations relating to the Union's own resources. Consequently, the Ombudsman's analysis commenced with statement (c).

52. The Commission defended this statement with reference to confidential information it received from "numerous sources independent of those of the complainant", including embassies of Member States and third countries, NGOs and its own services.

53. In its observations, the complainant stated that the Commission did not cite a single, verifiable source to substantiate this statement. On the contrary, the complainant argued that there have been no investigations or prosecutions relating to any instance of corruption or crime. In addition, the audit by the NCA demonstrated that there has been no impropriety in the past five years.

54. In his assessment leading to draft recommendations, the Ombudsman emphasised that the public statement that duty-free shops and petrol stations are "a focal point of local corruption and organised crime" is of such gravity that, in order to be duly substantiated, it must be underpinned by adequately convincing supporting evidence.

55. While it was clear that the Interim Report itself provided no information in relation to the Commission's sources, the Ombudsman carefully considered the evidence to which access was obtained in the course of the present inquiry. Importantly, the Ombudsman also inspected all the documents available in the Commission's file. On the basis of this information, the Ombudsman took the view that, although the above evidence could reasonably have led the Commission to have concerns, it failed to meet the high threshold needed to justify its public statement. This was because the Commission's statement was not based on concrete evidence in its possession but on views expressed to it confidentially by secondary sources. The Ombudsman reached the conclusion that the available evidence did not suffice to substantiate the Commission's public statement (c).

56. It followed that the Commission's statement (a) that Bulgaria "continues to tolerate" the operation of duty-free shops and petrol stations is misleading.

57. As regards statement (b), the Commission did not provide any evidence to counteract the official statistical data provided by the complainant as regards the statement relating to the increased revenue of duty-free shops in 2007. Furthermore, the Ombudsman's inspection of the file revealed nothing to substantiate to the Commission’s statement.

58. In light of the above, the Ombudsman found that the three public statements contained in the Commission's Interim Report were not adequately substantiated (statements (b) and (c)), or misleading (statement (a)). This constitutes maladministration.

59. The Ombudsman then examined the July Report, in which the Commission stated that "Bulgaria closed duty-free shops and duty free petrol stations which were allegedly focal points for local corruption and organised crime". The complainant argued that, in essence, the Commission repeated its incorrect and unsubstantiated allegations against the Bulgarian duty-free shops and petrol stations.

60. The Ombudsman found that it was clear, on the basis of the above extract from the July Report, that the Commission did not repeat its statements (a) and (b) from the Interim Report, but made an important change to statement (c) by inserting the word "allegedly". However, these changes did not amount to a withdrawal of the Commission's allegations contained in the Interim Report. Consequently, the Commission has not withdrawn its unsubstantiated allegations and this statement cannot rectify the instances of maladministration identified beforehand.

61. The Ombudsman noted that, while it is undisputed that the decision to close duty-free shops and petrol stations was an independent decision of the Bulgarian Government, it was obvious, as the Commission acknowledged in its letter dated 24 July 2008, that the Commission's Interim Report "led to the decision of the Bulgarian authorities to close down the duty free shops and petrol stations."

62. The Ombudsman noted that the Act of Accession and the CVM entrust the Commission with broad powers. In particular, the Act of Accession grants the Commission competence to take appropriate measures, should Bulgaria fail to implement the commitments undertaken in the context of accession negotiations[23]. The CVM specifies that the appropriate measures may include sectoral safeguards, such as the suspension of the Member States' obligation to recognise and execute Bulgarian judgments and judicial decisions, such as European arrest warrants[24]. In view of this, it is extremely important that the Commission, in carrying out its tasks under the CVM, adhere to the principles of proportionality, impartiality, objectivity and diligence. Furthermore, given that the Commission provides the Bulgarian Government with useful technical assistance on matters falling within the scope of the CVM[25], the Commission should exercise its administrative duties under the CVM with the utmost caution and in line with the rules and principles outlined above.

63. In this regard, the Commission is obliged to provide all non-confidential information to interested parties in order to substantiate statements contained in public reports. If confidential information is involved, the Commission should act consistently with its obligations under Regulation 1049/2001 and its own rules of procedure and do its utmost to address the concerns raised by an interested party. In circumstances such as those in the present complaint, which involve statements of the gravity here concerned, the Commission must be able to verify the accuracy of the information contained in its CVM Reports. Moreover, the Commission must ensure that it will be in a position to substantiate its statements on the basis of the information and evidence available. If unavailable, the Commission's own services must, following on-the-spot inspections and meetings, gather the necessary evidence. If confidential information is involved, a fully anonymised Commission report should be made available. The Commission would thereby observe the principles of good administration outlined above.

64. Moreover, the Commission should act with a view to finding the right balance between the public interest and any private interests involved, and provide an adequate opportunity for affected parties to present their views with the purpose of reaching an objective and balanced assessment. The obligation of genuine consultation is highlighted in the present case, given that the complainant is a representative association[26]. The consultation process itself must be carried out in a manner which is consistent with the principles of good administration.

65. In light of the above considerations and in accordance with Article 3(6) of his Statute, the Ombudsman made the following draft recommendations:

"1. In its next Report under the CVM, the Commission should acknowledge that the statements in its Interim Report of 14 February 2008 that duty-free shops and petrol stations "have seen a substantial increase in turnover during 2007" and that the Bulgarian border-based duty-free shops and petrol stations are a "focal point for local corruption and organised crime" were not substantiated by concrete evidence in its possession. The Commission should further acknowledge that the statement that the Bulgarian Government “continues to tolerate duty-free shops and petrol stations” was misleading.

2. Taking account of the broad powers conferred upon it under the CVM, the Commission should take appropriate steps to improve its procedures and ensure the proportionality, impartiality, objectivity and diligence of its Reports issued under the CVM. In line with the Ombudsman's suggestions, the Commission should issue appropriate instructions or guidelines to its services to ensure that the statements in public reports contain accurate information, which the Commission will be in a position to defend. Moreover, the Commission should ensure that it offers adequate opportunity of consultation and due regard to the interests of affected parties."

The arguments presented to the Ombudsman after his draft recommendations

66. In its detailed reply, the Commission did not accept the draft recommendations in relation to the first allegation. The Commission reiterated its position and argued that its statements on duty-free shops and petrol stations in the Interim Report "were based on evidence collected from several independent sources, such as the Bulgarian authorities, representatives of EU Member States and third countries and independent experts. This evidence demonstrated a lack of effective control over duty-free shops and duty-free petrol stations by Bulgaria and repeated abuses including smuggling, fraudulent imports and links to corruption and organised crime. On this basis, the Commission raised concerns regarding the operation of duty free shops in Bulgaria. However, the closure of the duty free shops in July 2008 was a sovereign decision of the Bulgarian government. The Commission considered the underlying evidence compelling and fully supporting the statements made in the report." The Commission concluded its reply by stating that it considers that its reports under the CVM fully satisfy the requirements of proportionality, impartiality, objectivity and diligence as laid out in the European Code of Good Administrative Behaviour.

67. In its observations on the Commission's detailed opinion, the complainant argued that the Commission simply repeats its assertion that the "evidence" it based its statements on was "compelling and fully supporting". This is despite the fact that the Ombudsman was provided with the available information and found in his draft recommendations that the available information "failed to meet the high threshold needed to justify" the statements made by the Commission.

68. The complainant also disagreed with the Commission's assertion that the closure of duty-free border shops and petrol stations in Bulgaria in July 2008 was "a sovereign decision of the Bulgarian government and by extension, not directly linked to the Commission's statements in the CVM reports." The complainant pointed out that this statement "is at odds with the Commission's earlier acknowledgement that its Interim Report of 4 February 2008 had in fact led to the decision of the Bulgarian authorities to close down the duty free shops and petrol stations". In the complainant's view, the causal link between the Commission's statements in the Interim Report and the subsequent decision of the Bulgarian government is clear.

69. Finally, the complainant made observations in relation to the present allegation which were prompted by the receipt and examination of the minutes of the 5 March 2008 Meeting (see below). It argued, in this context, that the minutes further call into question the Commission's statement (b) in its Interim Report.

70. In this regard, the complainant pointed out that the minutes refer to data on the turnover of duty-free shops provided by the Centre for the Study of Democracy (CSD) and relied upon by the Commission. The relevant CSD report includes data on duty-free sales for 2006 extrapolated from 2005 figures but no data on duty-free sales for 2007. At the 5 March 2008 meeting, the complainant provided the Commission with the official NCA data for 2007, which showed a 34.5% decline in sales from 2006 to 2007 and clearly refuted the figures purportedly relied on by the Commission. Moreover, the complainant argued that the US Department of State's "International Narcotics Control Strategy Report 2007" contains absolutely no data on duty-free shop or petrol station sales.

The Ombudsman's assessment after his draft recommendation

71. The Ombudsman recalls that, concerning the first allegation, he made two draft recommendations, as follows: (1) the Commission should acknowledge that statements (b) and (c) in its Interim Report were not substantiated by concrete evidence in its possession while statement (a) was misleading; and (2) the Commission should take steps to improve its procedures, ensure the proportionality, impartiality, objectivity and diligence of its CVM Reports and ensure that it offers adequate opportunity of consultation and due regard to the interests of affected parties.

72. As regards the first draft recommendation, the Commission insists that the underlying evidence is compelling and fully supports the statements contained in the Interim Report.

73. The Commission's approach is neither defensible nor constructive. It is not defensible in light of the comparison between the gravity of the Commission's statements in the Interim Report and the evidence on file. It is not constructive because the Commission denies any wrongdoing and does not seriously engage with the Ombudsman's draft recommendation. In this regard, the Ombudsman strives to understand the reasons why, in the four months that elapsed between its Interim Report and the July Report, the Commission inserted "allegedly" in statement (c) and dropped statement (b) altogether. The Commission's approach is regrettable also because it is premised on evidence which it is not prepared to disclose.

74. For the sake of clarity, the Ombudsman wishes to note that, as pointed out in his draft recommendations and reiterated in paragraph 55 of the present decision, the available evidence "could reasonably have led the Commission to have concerns." However, the evidence failed to meet the high threshold needed to justify the public statement that the "Bulgarian border-based duty-free shops and petrol stations are a focal point of local corruption and organised crime." At the same time, the Commission could not invoke any evidence whatsoever to rebut the information provided by NCA and to support the statement that "[t]he turnover of Bulgarian border-based duty-free shops and petrol stations saw an increase in 2007 compared to 2006."

75. As regards the second draft recommendation, the Commission did not advance any arguments to respond to the Ombudsman's analysis in paragraphs 49 to 64 of the present decision. It simply concluded that its CVM reports fully satisfy the requirements of proportionality, impartiality, objectivity and diligence.

76. Naturally, the Commission is welcome to give its views on the manner in which it carries out its obligations under the CVM. However, the Commission's response renders it necessary for the Ombudsman to clarify the meaning of his draft recommendation in this regard. As a preliminary point, it must be noted that the Ombudsman did not find that the Commission's Reports under the CVM fail to comply with the aforementioned principles of good administration. Rather, the Ombudsman's inquiry focused on the Interim Report of 2008. The Ombudsman's inquiry was facilitated by an inspection of the file. On the basis of that inspection, it became obvious that the Commission's statements in the Interim Report could not be supported by concrete evidence in its possession. It is implicit in this finding that the Ombudsman criticised the Commission for its evaluation of the significance of the evidence, which was available on file, and the ultimate use of that evidence in the public statements made in its Interim Report.

77. However, the Ombudsman's criticism is not limited to the Commission's failure to substantiate its statements and to the evaluation and use of the available evidence. As can be seen in paragraphs 63 and 64 of the present decision, the Ombudsman took a step further and provided guidance on the related question of obtaining the necessary evidence to justify such statements and, in more general terms, guidance on how to constitute the file of the Report in question while respecting the interests of confidentiality. To this end, the Ombudsman asked the Commission to issue instructions and guidelines to its services when carrying out such an investigation to ensure the accuracy of the information they receive. This is facilitated by involving interested parties in information-gathering which, besides helping the Commission to reach a fair and balanced assessment, also brings the added value of affording genuine consultation opportunity to representative associations[27].

78. The Commission's mooting of the above considerations in its detailed reply is difficult to justify. Even if the Commission is convinced that there was nothing wrong with the statements in its Interim Report, which, given the changes it made in its July Report four months later, is hardly convincing, it does not automatically follow that the Commission's procedures cannot be improved. While the Ombudsman has constantly commended the improvements in the institutions' conduct and their respect for the principles of good administration, he takes the view that there is no room for complacency while there is always room for improvement. The Ombudsman would be surprised and disappointed in equal measure if the Commission's position was intended to be understood as ruling out any improvement. The Ombudsman's systematic encouragement to the institutions to raise the bar and to improve their culture of service is a manifestation of a philosophy which is citizen-driven and to which the Ombudsman is convinced the Commission also subscribes.

79. In light of the above considerations, the Ombudsman regrets that the Commission did not accept his draft recommendations. As regards the instances of maladministration here identified, the Ombudsman will issue a critical remark and a further remark in the concluding part of this decision.

80. According to Article 3(7) of his Statute, the Ombudsman, after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, shall send a report to the European Parliament and to the institution or body concerned.

81. In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament is of inestimable value for his work. He added that special reports should therefore not be presented too frequently, but only in relation to important matters where Parliament is able to take action in order to assist the Ombudsman. The Annual Report for 1998 was submitted to and approved by the European Parliament.

82. The Ombudsman considers that, although the present inquiry has highlighted important instances of maladministration, the facts at stake lie in the past. The lessons that can be derived from this case can be best addressed in the follow-up study in the aftermath of the Commission's reaction to the Ombudsman's critical remark and his further remark. He therefore takes the view that it would not be fruitful to submit a special report concerning this case to Parliament.

83. In this regard, the Ombudsman recalls that, in accordance with the standard procedures, the Commission is expected to send its response to the Ombudsman within six months following the present decision. The Ombudsman will then carefully examine the Commission's response to his critical remark and his further remark.

B. Access to the minutes of the Meeting of 5 March 2008

Arguments presented to the Ombudsman

84. The Ombudsman recalls that on 29 April 2009 the Commission rejected the complainant's initial application for access to the minutes of the 5 March 2008 meeting, on the basis of Article 4(2), third indent of Regulation 1049/2001. It did not provide any further explanations for its refusal[28].

85. By letter dated 24 July 2008, the Commission rejected the complainant's confirmatory application on the basis of Article 4(3), first sentence of Regulation 1049/2001[29]. This exception foresees that access to a document drawn up by an institution for internal use and relating to a matter where the decision has not yet been taken by the institution, shall be refused if its disclosure would seriously undermine the institution's decision-making process.

86. More specifically, the Commission stated that the topic of discussion at the Meeting was "the operation of duty free shops and petrol stations on the borders which is currently being investigated by the Commission in the framework of the Cooperation and Verification Mechanism (CVM)." The Commission then explained that:

"[m]aking public the notes on the meeting of 5 March 2008 at this point in time would seriously undermine the decision-making process since it would anticipate positions the Commission may adopt in the course of its monitoring activities in the framework of the CVM, more in particular on the issue of the operation of duty-free shops and petrol stations on the borders of Bulgaria. Depending on the outcome of future CVM reports, it is not excluded that the Commission will have to take further measures to ensure Bulgaria's compliance with Community law on VAT. Disclosure of the requested minutes at this stage would limit the Commission's margin of manoeuvre and put at risk its flexibility and its efficient decision-making under the CVM."

87. The Commission also refused partial access. Regarding the overriding public interest requirement, it held that the interest invoked by the complainant is of a private nature and could not outweigh "the need to protect the Commission's decision-making process as regards the monitoring of Bulgaria's efforts in meeting the benchmarks in the fields of judicial reform, corruption and organised crime."

88. In its opinion, the Commission summarised its above arguments as follows:

"On 24 July 2008 the Commission took a decision on the confirmatory application by the complainant, refusing access to the requested document on the basis of the exception set out in Article 4(3), first subparagraph of Regulation 1049/2001, which foresees that access to a document drawn up by an institution for internal use, relating to a matter where the decision has not been taken by the institution, shall be refused if its disclosure would seriously undermine the institution's decision-making process. This decision explained that the monitoring of Bulgarian progress in the framework of CVM is an ongoing process that would continue until all the agreed benchmarks have been met. Depending on the outcome of future CVM reports, it could not be excluded that the Commission would have to take further measures to ensure Bulgaria's compliance with Community Law on VAT. Consequently, it was reasonable to conclude that the disclosure of the requested minutes would reduce the Commission's margin of manoeuvre and put at risk its flexibility and its efficient decision-making under the CVM.

Neither the Commission erred by concluding that the interest defended by the complainant, a representative of the duty-free business in Bulgaria, is of a private nature. Therefore, the decision of 24 July 2008 correctly applied the provisions of Regulation 1049/2001."

89. In its observations, the complainant argued that the Commission undertook no inspection, investigation or audit of its own[30]. The complainant also argued that the Commission withheld the minutes of the Meeting so as "to cover up its appalling failures to check and verify second-hand information it used for its reporting under the Cooperation and Verification Mechanism." The complainant asked if the allegations against it were a specific decision under the CVM, and, if so, "why would the Commission repeatedly deny it had any role in the decision of the previous Bulgarian government to close duty-free shops and fuel stations?" On the overriding public interest issue, the complainant argued that given "the sanctions available to the Commission under the CVM on the populations of Bulgaria and Romania, the decision-making under the CVM should be transparent and robust."

90. In its observations on the inspection report, the complainant further argued that the Commission's argument that the CVM is somehow wholly exempt from the normal rules on transparency does not find premise either in the Accession Treaty or the CVM itself. The complainant insists that the Commission denied access "in an effort to cover up its reliance on the CSD analysis" in preparation of the Interim Report.

The Ombudsman's assessment leading to a draft recommendation

91. In his analysis, the Ombudsman pointed to Article 42 of the Charter of Fundamental Rights of the European Union[31] which provides as follows: "Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State, has a right of access to the European Parliament, Council and Commission documents."

92. The fundamental right of access to documents, which embodies the quest for transparency, legitimacy and accountability of the European Union institutions, is ensured in the European Union legal order by Regulation 1049/2001. The Court of Justice has stated on multiple occasions that the right of access to Commission documents exists as a matter of principle, and a decision to refuse access is valid only if it is based on one of the exceptions laid down in Article 4 of Regulation 1049 /2001[32].

93. In view of the objectives pursued by Regulation 1049/2001, in particular the aim of ensuring the widest possible access to documents held by the Council, the European Parliament and the Commission[33], any exceptions to this principle have to be interpreted strictly[34].

94. Furthermore, according to the settled case-law of the Court of Justice, the application of the exception may be justified only if the institution has previously assessed: (i) whether the access to the document would specifically and actually undermine the protected interest; and (ii) and if the reply is in the affirmative, whether, in the circumstances referred to in Article 4(2) and 4(3) of Regulation 1049/2001, there was no overriding public interest in disclosure. However, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. The above assessment must be apparent from the decision[35].

95. Moreover, the Ombudsman, in his decisions on cases concerning the same issue, has consistently pointed out that:

"Article 4(3) is intended to protect the internal decision-making process of the institutions. In certain circumstances, the institution's decision-making ability may be compromised if documents which are immediately and directly to be made use of by the institution in order to adopt a future decision were to come into the public domain before that decision is taken. Such an eventuality could materialise by virtue of the fact that such premature disclosure of documents may lead to undue external pressure being exerted on the institution and/or its services (Article 4(3), first subparagraph). An institution's decision-making ability may also be compromised if internal documents are made public after a decision has been taken (Article 4(3), second subparagraph). However, the danger that an institution's decision-making ability will be compromised is greatly reduced once a decision has been taken. In such circumstances, there is only a limited danger that undue external pressure will be effectively exerted on the institution or its services as a result of public disclosure of the document."[36]

96. In view of the above, the Ombudsman posed the question as to whether the disclosure of the documents in question would seriously undermine the Commission's decision-making process under the CVM.

97. In its opinion on the complaint, the Commission relied on Article 4(3), first subparagraph and refused access to the minutes of the Meeting on the grounds that: (i) decision-making under the CVM is an ongoing process and that, therefore, the disclosure of the requested minutes would reduce the Commission's margin of manoeuvre and put at risk its flexibility and its efficient decision-making under the CVM; and, in any event, (ii) the complainant's private interests may not override the public interest in monitoring Bulgaria's efforts in the field of judicial reform, corruption and organised crime.

98. The Ombudsman took the view that the Commission's arguments could not be accepted. As regards the risk of compromising the Commission's decision-making, it is clear from the above cited case-law that the risk for the Commission's decision-making process must be clearly foreseeable and not merely hypothetical. In the present circumstances, the Commission did not demonstrate the existence of a concrete risk which could undermine its decision-making process.

99. In contrast, the risk is rather hypothetical. In his analysis in the assessment leading to a draft recommendation the Ombudsman held that this is so for reasons of both timing and substance. As regards timing, the Commission is not likely to deal with these aspects of Benchmark 5 or Union law on VAT in its Reports under the CVM. As regards substance, the Commission failed to establish the link between the disclosure of minutes of the Meeting and the risk to its decision-making process.

100. A closer look at the issue of timing revealed that the Commission conflates its decision-making on the specific issue of duty-free shops and petrol stations under Benchmark 5 – which it dealt with in its Interim Report and July Report in 2008 – with the ongoing CVM and the methodology used thereunder. If the Commission's reasoning were to be accepted, the entire process under the CVM would always be protected from disclosure. Such an approach manifestly contradicts the aim and objectives of Regulation 1049/2001 and the principle of transparency the latter encapsulates. In fact, given that the decision on the Commission's position as regards the Bulgarian duty-free shops and petrol stations was already taken and clearly expressed in its Interim Report and July Report, the Commission's approach to invoke Article 4(3), first sentence of Regulation 1049/2001 is questionable.

101. As regards the issue of substance, the Commission's approach echoes arguments previously presented to the Ombudsman in relation to the disclosure of documents from internal meetings and briefings. The Ombudsman has held that "[t]his approach clearly cannot be squared with the principle of strict interpretation of the exception laid down in Article 4(3), second subparagraph; in fact, it would amount to little less than a broad license for non-disclosure of such documents, in obvious disregard of the intent of the Community legislator who enacted Regulation 1049/2001."[37] In order for the Ombudsman to accept that a serious risk to the Commission's decision-making process exists, the Commission must, in line with existing case-law, provide convincing and sound reasons for this view in the particular circumstances of the case under consideration.

102. The Ombudsman considered that the Commission's above justification was general, abstract and not well supported by the facts of the case. The Commission did not specify, in a sound and effective manner, how the disclosure of the minutes in question would undermine its decision-making process under the CVM.

103. As regards the Commission's second argument, namely, that the complainant's interest is of a private nature and cannot outweigh the public interest of "monitoring of Bulgaria's efforts in meeting the benchmarks in the fields of judicial reform, corruption and organised crime", which the Commission stated in its letter of 24 July 2008 and defended in its opinion, the Ombudsman took the view that this argument is more in favour than against the disclosure of the minutes of the Meeting.

104. If, as the Commission argued, the public interest in this case is the monitoring of Bulgaria's efforts to meet the CVM Benchmarks, then that interest is best served by the full transparency of the available documents. This is particularly so when the document at issue concerns the minutes of a meeting between the Commission and the representative association of the Bulgarian duty-free sector to discuss the Commission's concerns about the said sector. Moreover, the complainant was present at the meeting and was allowed to take notes. It is therefore fully aware of the content of the discussions that took place. The Commission would protect the public interest better by providing the public with an accurate record of the Meeting.

105. In light of the above, the Ombudsman found that the Commission wrongly refused access to the minutes of the Meeting, on the basis of the exception in Article 4(3), first subparagraph of Regulation No 1049/2001. This is an instance of maladministration.

106. The Ombudsman therefore made the following draft recommendation:

"The Commission should grant access to the minutes of the Meeting of 5 March 2008."

The arguments presented to the Ombudsman after his draft recommendation

107. As regards access to the minutes of the meeting of 5 March 2008, the Commission reiterated in its detailed opinion that it based its refusal on Article 4(3) of Regulation 1049/2001, which allows for withholding access to internal documents that would create prejudice to the institution's decision-making process. However, the Commission considered that, at this stage of the procedure and in accordance with Article 4(7) of the said Regulation, the protection granted to the minutes of the meeting is no longer justified on the basis of the content of the document and that public access can now be granted. The Commission stressed however that future requests for access to internal documents related to the CVM will be considered on case-by-case basis.

108. In its observations, the complainant welcomed the Commission's decision to release the minutes of the 5 March 2008 meeting and confirmed their accuracy. The complainant stated that it sought disclosure of the minutes in order to draw attention to the Commission's reliance on false and misleading data (paragraph 70 of the present decision) and help the Ombudsman substantiate a finding of maladministration on the part of the Commission.

The Ombudsman's assessment after his draft recommendation

109. The Ombudsman welcomes the Commission's decision to grant public access to the minutes of the meeting and thereby accept his third draft recommendation. No further action by the Ombudsman is therefore necessary as regards this aspect of the complaint.

110. The Ombudsman, however, has reservations as regards the Commission’s reasoning for its decision to disclose the minutes. Having regard to the factual account of the case, it is not sufficiently clear from the Commission's detailed reply why the protection granted to the minutes is no longer justified in accordance with Article 4(7) of Regulation 1049/2001[38]. The Ombudsman considers that a full and genuine acceptance of his draft recommendation would entail the admission that the rejection of the complainant's confirmatory application could not be justified under Article 4(3), first subparagraph of Regulation 1049/2001 for the reasons analysed in detail in paragraphs 91 to 105 of the present decision.

C. Delay in the handling of the complainant's confirmatory application

Arguments presented to the Ombudsman

111. The complainant argued that the Commission intentionally delayed its response to the confirmatory application until after the publication of the July Report. The complainant insisted that the timing of the Commission's reply, which arrived only one day after the July Report and failed to remove the unsubstantiated allegations against the complainant, was not coincidental. The Ombudsman therefore understands the complainant to argue, in substance, that the Commission deliberately delayed its response until the July Report had been published.

112. In its opinion, the Commission argued that the delay in the registration of the confirmatory application was due to the fact that it was unsure whether or not the complainant's letter of 19 May 2008 constituted a confirmatory application. The letter did not mention refusal of the Commission's Directorate-General for Justice, Freedom and Security's (DG JFS) to grant access to the minutes after the complainant's initial application. Instead, the letter focused on the rebuttal of the Commission's statement in section 2.2.5 of the Interim Report. The Commission argued that it dealt with the complainant's confirmatory application within the time limits foreseen in Article 8 of Regulation 1049/2001.

113. In its observations on the Commission's opinion, the complainant argued that Article 8(2) of Regulation 1049/2001 permits an institution to extend the deadline for response by a further 15 days only in "exceptional cases", such as when the request concerns "a very long document" or "a very large number of documents". In these cases, an institution may extend the deadline "provided that the applicant is notified in advance and that detailed reasons are given". In this respect, the complainant is not convinced by the Commission's arguments as to why it required 14 working days following registration to send an acknowledgement of receipt and an additional 15 working days to "make a full analysis of the requested documents", when the request only concerned access to the record of a single meeting lasting approximately 45 minutes.

114. In its observations on the inspection report, the complainant repeated its main arguments and argued that the Commission's decision on the confirmatory application for access to the minutes was delayed until after the July Report had been issued so as to avoid any additional scrutiny from the complainant.

The Ombudsman's assessment

115. Article 8 of Regulation 1049/2001 on the processing of confirmatory applications provides:

"1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal....

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given."

116. It follows that, following the registration of a confirmatory application, the Commission must reply to the applicant within 15 working days. That deadline may only be extended if the following cumulative conditions are fulfilled:

- the Commission must notify the applicant in advance;

- the Commission must give detailed reasons for the extension of the deadline; and

- there must be exceptional circumstances which justify the delay, for instance, when the request concerns a very long document or a very large number of documents.

117. As regards the present allegation, the Commission's delay in handling the complainant's confirmatory application has two aspects: first, the delay in the registration of the application and the acknowledgment of its receipt, and second, the delay in replying to the applicant.

118. The Commission argued in relation to the delay in registration that it was not clear from the complainant's letter dated 19 May 2008 that it constituted a confirmatory application. This was so because it did not mention DG JFS's refusal to grant access to the minutes following the complainant's initial application; instead, the complainant's letter focused on the rebuttal of the Commission's statement in section 2.2.5 of the Interim Report.

119. In addition, the only ground the Commission brought forward to defend the delay in replying to the complainant's letter was that of "the necessity to make a full analysis of the requested documents".

120. In view of the above, the Ombudsman takes the view that in failing to identify that the complainant's letter was a confirmatory application and, consequently, in delaying its registration, the Commission failed to act at the level of diligence expected from a Union institution, body, office or agency. At the same time, the Commission failed to provide sufficiently detailed reasons for the delay in replying. Moreover, there were no exceptional circumstances which would justify the delay in the reply to the complainant's confirmatory application. Having inspected the minutes of the Meeting, the Ombudsman can confirm that these do not constitute a very long document within the meaning of Article 8(2) of Regulation 1049/2001.

121. However, the Ombudsman has found no evidence to substantiate the complainant’s argument that the Commission deliberately delayed its response until the July report had been published. The Ombudsman, therefore, considers (a) that it would be misleading to make a finding of maladministration as regards this allegation and (b) that no further inquiries are justified as regards this aspect of the complaint.

D. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the conclusions stated here below. He also makes a further remark.

As regards the allegation concerning Commission's statements in its Interim Report of 14 February 2008, the Ombudsman makes the following critical remark:

Principles of good administration require the Commission to be in a position to defend public statements in its Reports under the CVM. The statements included in its Interim Report of 14 February 2008 that duty-free shops and petrol stations "have seen a substantial increase in turnover during 2007" and that the Bulgarian border-based duty-free shops and petrol stations "are a focal point for local corruption and organised crime" were not substantiated by concrete evidence in its possession. Moreover, the statement that the Bulgarian Government “continues to tolerate duty-free shops and petrol stations” was misleading.

It was, therefore, an instance of maladministration to make the above statements.

As regards the allegations concerning public access to the minutes of the Meeting of 5 March 2008, the Ombudsman's conclusions are as follows:

a) The Commission accepted the Ombudsman's draft recommendation to provide access to the minutes of 5 March 2008 and no further inquiries are necessary as regards this aspect of the complaint.

b) The Ombudsman considered that it would be misleading to make a finding of maladministration as regards the allegation that the Commission deliberately delayed the handling of the complainant's confirmatory application. No further inquiries are justified as regards this aspect of the complaint.

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

Further remark

The Commission should ensure that its Reports issued under the CVM comply with the principles of good administration. To this end, the Commission could issue appropriate instructions or guidelines to its services to ensure that statements included in public reports contain accurate information, which the Commission will be in a position to defend. Moreover, the Commission should ensure that it offers adequate opportunity of consultation and due regard to the interests of affected parties.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 1 August 2011

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[1] Commission Decision 2006/929 of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Bulgaria to address specific benchmarks in the areas of judicial reform and fight against corruption and organised crime, OJ 2006 L 354, p. 58.

[2] Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded, OJ 2005 L 157, p. 203.

[3] Commission Decision 2006/929 of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Bulgaria to address specific benchmarks in the areas of judicial reform and fight against corruption and organised crime, OJ 2006 L 354, p. 58.

[4] Article 1 of the CVM Decision.

[5] Article 2 of the CVM Decision.

[6] Regulation 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.

[7] The issue has not been mentioned in any of the following CVM Reports (on 12 February 2009, 22 July 2009 and 23 March 2010).

[8] Article 10.2 of the Decision of the European Ombudsman adopting Implementing Provisions states: "If he considers it appropriate to do so, the Ombudsman may take steps to ensure that a complaint is dealt with as a matter of priority." The Ombudsman's Implementing Provisions are available on the website of the European Ombudsman, http://www.ombudsman.europa.eu

[9] "The language of proceedings conducted by the Ombudsman is one of the Treaty languages; in the case of a complaint, the language in which it is written."

[10] "Citizens of the Union ... shall have, inter alia: ... the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language."

[11] "Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language".

[12] According to the Commission, the CCC, the predecessor of the World Customs Organization, "considers that the existence of such shops on land frontiers (road or rail traffic) gives rise to a grave risk of fraudulent importation. As a result, the Customs Cooperation Council recommends its members against the establishment of tax free shops at places other than seaports and customs airports and to limit sales in tax-free shops to travellers leaving for abroad by sea or air."

[13] Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, OJ 2009 L 9, p. 12.

[14] In accordance with Article 3.2 of the Ombudsman's Statute.

[15] See, Draft recommendation of the European Ombudsman in his inquiry into complaint 1475/2005/(IP)GG, paragraph 1.18, which states "The Ombudsman considers that it is good administrative practice for EU institutions and bodies to take care that the statements they make are accurate and not misleading and to correct promptly any errors that may occur. .... In this context, the term "misleading" ... is therefore to be understood objectively, i.e., as meaning that a certain statement is likely to be interpreted inaccurately by the persons to whom it is addressed."

[16] Available on the website of the European Ombudsman, http://www.ombudsman.europa.eu

[17] Article 6(2) ECGAB (Proportionality).

[18] Article 8(1) ECGAB (Impartiality and independence).

[19] Article 9 ECGAB (Objectivity).

[20] Case C-47/07 P Masdar (UK) v Commission [2008] ECR I-9761, paragraphs 92-93.

[21] See, Decision of the European Ombudsman closing his inquiry into complaint 1843/2007/JMA against the European Commission, at paragraph 48, and Decision of the European Ombudsman on complaint 524/2005/BB against the European Agency for the Evaluation of Medicinal Products, paragraph 2.12.

[22] See, also, The Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public, Annexed to the Commission's Rules of Procedure, at paragraph 3.

[23] Articles 36 - 38 of Bulgaria's Act of Accession, also confirmed in Preambular clause (8) of the CVM.

[24] Preambular clause (7) of the CVM.

[25] Article 1(2) of the CVM.

[26] See also Article 11 of the Treaty on European Union.

[27] Article 11 of the Treaty on European Union.

[28] "The institutions 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."

[29] "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

[30] It appears that the complainant failed to notice that the Commission had shifted the ground for its refusal of access to the document requested from Article 4(2), third indent in the initial application to Article 4(3), first paragraph in the confirmatory application.

[31] Pursuant to Article 6(1) of the Treaty on European Union, the Charter of Fundamental Rights of the European Union shall have the same legal value as the Treaties.

[32] Case C-64/05 Sweden v Commission [2007] ECR I-11389, paragraph 57 and Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 62.

[33] Article 1(a) of Regulation 1049/2001.

[34] Case C-64/05 Sweden v Commission [2007] ECR I-11389, paragraph 66 and Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 63.

[35] Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69.

[36] See, Draft recommendation of the European Ombudsman in his inquiry into complaint 2502/2007/RT against the European Commission, paragraph 30; Draft recommendation of the European Ombudsman in his inquiry into complaint 355/2007/TN against the European Commission, paragraph 48.

[37] Decision of the European Ombudsman on complaint 1434/2004/PB against the European Commission, paragraph 1.22.

[38] "The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document."