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Access to information concerning a late delivery penalty imposed on a company

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  • Case: 771/2011/OV
    Opened on 30 May 2011 - Decision on 09 Oct 2012
  • Institution(s) concerned: European Commission
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Requests for information [Article 22 ECGAB]
  • Subject matter(s): Dealing with requests for information and access to documents (Transparency)
Three business people
Copyright: Stocklib © Jiri Kabele

Summary of the decision on complaint 771/2011/(ELB)OV against the European Commission

Company X worked on a Commission-funded project. It employed five experts to carry out the project, one of whom was the complainant. The Commission imposed a late delivery penalty on Company X. As Company X considered that the complainant was responsible for the delay, it paid him only part of his fees. The complainant instituted court proceedings against Company X, which he lost. He then contacted the Commission asking what the final percentage of the late delivery penalty imposed on Company X was. In his request, he indicated that Company X had paid him about 42% of his fees, and that it had based this decision on the fact that the Commission had imposed a 42% late delivery penalty on it.

The Commission replied that it was not legally entitled to divulge information which was of a strict contractual nature and potentially prejudicial to the commercial interests of Company X. Later, the Commission contacted the company which explicitly refused that the Commission communicate the requested information to the complainant.

The complainant turned to the Ombudsman alleging that the Commission had failed to inform him of the amount (in percentage terms) of the late delivery penalty. In its opinion, the Commission clarified that the late delivery penalty was a lump sum compensation for non-compliance with the contract, and that releasing this information could harm the reputation of Company X.

The Ombudsman found that it was reasonably foreseeable, and not purely hypothetical, that releasing information on the precise amount of the late delivery penalty could harm the image and reputation of Company X, especially vis-à-vis its customers, and thus its legitimate commercial interests. The Ombudsman therefore found no instance of maladministration and closed the case.