Strasbourg, 20 December 2006

Dear Prof. N.,

On 1 April 2003, you submitted a complaint to the European Ombudsman in your capacity as legal representative of the Italian company M.P.M. Costruzioni edili s.r.l. ("M.P.M.") concerning the European Commission's handling of a request for access to documents.

On 28 April 2003, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 24 June 2003. I forwarded it to you with an invitation to make observations, which you sent on 29 July 2003. You sent further correspondence on 30 October 2003 and on 11 May 2004.

On 27 February and on 23 July 2004, I sent you holding letters in which I informed you of the deadlines by which I would communicate to you the actions I would take concerning your case. However, on 28 October 2004, I had to inform you that some extra time would be necessary in order to deal with your complaint, and that I would communicate to you the actions I would take by the end of December 2004. On 4 November 2004, you acknowledged receipt of my letter of 28 October 2004.

After having examined the Commission's opinion and your observations, I considered that it was necessary to conduct further inquiries. On 8 December 2004, I therefore wrote to the Commission, asking for further information and I informed you accordingly. By letter of 5 January 2005, you acknowledged receipt of my letter of 8 December 2004 . The Commission sent to me the Italian translation of its reply on 15 February 2005 and, on 2 March 2005, I forwarded it to you with an invitation to make observations, which you sent me on 24 March 2005.

On 16 November 2005, I addressed a draft recommendation to the Commission and asked the institution to provide me with its detailed opinion on the draft recommendation by the end of February 2006. On the same date, I informed you accordingly and I forwarded to you a copy of the draft recommendation, for your information. On 5 December 2005, I forwarded to you a translation of my draft recommendation into Italian.

On 7 March 2006, the Commission wrote me a letter in which it stated that, following my draft recommendation, the Commission had established contacts with the Italian authorities in order to obtain information on the case. The Commission would therefore need until 30 April 2006 to complete its reply.

By letter of 15 March 2006, I informed the Commission that I had decided to agree with its request and that the new deadline for its reply was 30 April 2006, as requested. On 4 April 2006, I informed you accordingly.

On 12 May 2006, the Commission sent a further letter informing my secretariat of delays in the transmission of its opinion in 22 cases in which the deadline for reply was 30 April 2006. Your case was among those.

On 22 May 2006, I replied to the Commission. In my letter, I regretted the fact that, for 19 cases (among them the present one) out of the 22 for which the Commission's replies were delayed, the institution had failed either to meet the deadline, or to make a timely and reasoned request for an extension.

On 20 June 2006, I received the Italian translation of the Commission's detailed opinion to my draft recommendation which I forwarded to you on 6 July 2006 with an invitation to make observations, which you sent to me on 30 August 2006.

I am writing now to inform you about the results of the inquiries that have been made. I apologise for the length of time that it has taken to conclude the present inquiry.

THE COMPLAINT

Background information

On 31 January 2002(1), the European Commission's Joint Research Centre ("JRC") launched a call for tenders for small and medium-sized construction, restructuring and maintenance works for various buildings and drainage systems at the JRC's Ispra site.

One of the complainant's clients(2), the Italian company M.P.M. Costruzioni Edili s.r.l. ("M.P.M."), which had set up a consortium with three other companies ("the consortium"), participated in the call for tenders. However, this consortium was not selected.

In a complaint lodged with the Ombudsman on 25 July 2002 (1368/2002/IP), the complainant alleged a lack of transparency in the tender procedure and a consistent failure by the JRC to reply to his correspondence from 17 June 2002 onwards. Furthermore, the complainant claimed that, in accordance with the rules governing the tender, M.P.M. should have been awarded the contract.

On 30 August 2002, the Ombudsman informed the Commission of the complaint and asked the institution to submit an opinion by the end of November 2002. The Commission sent its opinion on 12 November 2002. This opinion was forwarded to the complainant, who sent his observations on 31 December 2002.

From the complainant's observations, it appeared that, on 12 November 2002, M.P.M. had submitted its dispute with the Commission to the Italian Administrative Court of Lombardia.

On the basis of this information, the Ombudsman decided to close the case, in accordance with Article 2(7) of the Statute of the Ombudsman(3). In his observations of 31 December 2002, the complainant had however raised a new allegation concerning the Commission's handling of a request for access to documents that he had made on 31 July 2002. Since this allegation was not part of the original complaint, the Ombudsman informed the complainant that he would not deal with it in his decision concerning case 1368/2002/IP. He furthermore informed the complainant that he was free to lodge a new complaint on this issue, if he so wished.

Complaint 617/2003/IP

On 1 April 2003, the complainant made a new complaint to the Ombudsman, which was registered under complaint reference 617/2003/IP.

According to the complainant, the relevant facts underlying this new complaint were as follows:

On 31 July 2002, the complainant asked the Commission to give him access to the documents concerning the procedure related to the call for tenders for small and medium-sized construction, restructuring offers and maintenance works for various buildings and drainage systems at the JRC's Ispra site, launched by the Commission on 31 January 2002. On 28 August 2002, the Commission gave him access to some of the documents that he had requested. However, it refused to allow the complainant access to the documents concerning the offers made by companies other than M.P.M., which had participated in the tender. The Commission based its refusal on the argument that these documents were covered by the exception laid down in Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(4), which foresees that "the institutions shall refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person (…)".

On 6 September 2002, the complainant made a confirmatory application to the Secretary-General of the Commission to have full access to the requested documents. In his confirmatory application, the complainant pointed out the following:

(i) The request for access to documents had been made after the conclusion of the procedure. Directive 93/37/EEC of 14 June 1993(5), as amended by Directive 97/52/EEC(6) concerning the coordination of procedures for the award of public works contracts, establishes that the confidentiality of tenders is maintained pending their evaluation. However, according to the complainant, there was no legal provision that this confidentiality should be maintained after the conclusion of the relevant procedure. Furthermore, in accordance with Article 4(7) of Regulation 1049/2001, the exceptions to the general principle of access to documents shall only apply for the period during which protection is justified on the basis of the content of the document.

(ii) As foreseen by Article 4(4) of Regulation 1049/2001, in the case of third-party documents, the institution shall consult the third party with a view to assessing whether an exception is applicable, unless it is clear that the document shall or shall not be disclosed.

(iii) M.P.M. had a special interest in having access to the relevant documents because it was one of the participants in the tender procedure and because it was relevant to its rights of defence.

By letter of 13 November 2002, the Commission rejected the complainant's confirmatory application.

In his complaint to the Ombudsman, the complainant alleged that: (i) when dealing with his confirmatory application, the Commission did not comply with the deadline foreseen by Regulation 1049/2001 and (ii) the Commission's decision not to allow him full access to the requested documents was unfair and inadequately reasoned.

The complainant claimed that the Commission should reconsider its position and give him full access to the requested documents.

THE INQUIRY

The Commission's opinion

In its opinion on the complaint, the Commission made the following points:

On 31 July 2002, the complainant, in his capacity as legal representative of M.P.M which had participated in the call for tenders launched by the JRC, made a request for access to documents.

On 5 August 2002, the JRC asked the complainant to specify his request which, according to the JRC, had been formulated in broad terms. The complainant replied on 6 August 2002. He specified the documents to which he had asked to have access and emphasised that his request was also based on the Italian Law regarding citizens' rights to information in order to safeguard their rights vis-à-vis the administration.

On 28 August 2002, the JRC replied to the complainant. The JRC provided the complainant with the full report from the JRC's technical services to the Advisory Committee on Procurement and Contracts and its annexes. This documentation included:

• the minutes of a technical meeting which had been held with representatives of the bidding firms;
• a list of the bidding firms;
• the report of the selection panel;
• the report of the evaluation committee;
• the opinion of the Advisory Committee on Procurement and Contracts; and
• the draft contract.

Access to the proposals made by the bidding firms was however denied to the complainant since, according to the JRC, disclosure of the information contained in these proposals would have undermined the protection of the commercial interests of the bidders.

On 6 September 2002, the complainant made a confirmatory application to the Secretary-General of the Commission and asked to have access to the documents to which the JRC had denied him access on 28 August 2002. The complainant stated that his request was also based on Italian legislation and that M.P.M had a privileged right to have access to these documents since they would be relevant for its defence in the framework of legal proceedings before the administrative court of Lombardia. The complainant also took the view that the JRC should have consulted the other firms involved before deciding that, disclosure of the documents requested by the complainant, would undermine their commercial interests.

The Commission thereupon consulted the firms involved and, n the basis of this consultation, it reached the conclusion that disclosure of their submissions would affect their commercial interests.

As regards the complainant's allegation that the Commission did not reply to his confirmatory allegation within the deadline foreseen by Article 8 of Regulation 1049/2001, the institution admitted that its reply had indeed been delayed. The confirmatory application for access to documents had been received by fax on 6 September 2002. However, in view of the time required to consult the firms involved by the request, the Commission decided to extend by 15 working days the deadline required to provide a reply to the complainant. The complainant had been informed accordingly by letter of 26 September 2002. The final deadline for reply was therefore 18 October 2002. However, the reply was sent to the complainant on 13 November 2002, i.e. 17 working days later. The Commission regretted the delay which had occurred in this case and explained that it was due to the length of time necessary for the consultation process. However, this delay had not prejudiced the complainant's rights in view of the fact that, as established by Article 8 of Regulation 1049/2001, the failure to reply within the prescribed time-limit shall be considered as a negative reply and entitle the applicant to bring proceedings before the Court of First Instance or to complain to the Ombudsman.

As regards the complainant's allegation that the decision not to allow him full access to all the documents requested was unfair and inadequately reasoned, the Italian legislation referred to by the complainant in his complaint did not apply to documents held by the Commission. The applicable legislation in this case was Regulation 1049/2001, which does not grant specific rights of access to interested parties. In accordance with Article 6(1) of the Regulation, the applicant is not obliged to state reasons for his request. A decision to grant or deny access to the documents requested cannot therefore be based on the specific interests of the applicant. When a document is disclosed pursuant to Regulation 1049/2001, it becomes public and it can be accessed by any other applicant.

The exception laid down in Article 4(2), first indent, of Regulation 1049/2001 protects the commercial interests of a natural or legal person. The documentation provided by the firms which participated in the relevant call for tenders contained confidential business information and the disclosure of such information would have adversely affected their commercial interests. The interest of the complainant's client in obtaining access to these documents was a private interest and could not be invoked as an overriding public interest. When deciding on the complainant's request, the Commission had to strike a fair balance between, on the one hand, the legitimate interest of the complainant's client in understanding the reasons for awarding the contract to another firm and, on the other hand, the legitimate expectations of the bidding firms that the information provided for the purpose of the tender would be handled properly. The Commission considered that the JRC had provided the complainant with all the relevant documentation explaining the procedure that had been followed, the criteria for assessing the tenders, the evaluation of the proposal and the final conclusion of the advisory committee.

Furthermore, in accordance with Article 4(4) of Regulation 1049/2001, in the case of a third-party document, the author of the document had to be consulted on the disclosure of its document, "unless it is clear that the document shall or shall not be disclosed". When handling the initial application made by the complainant, the JRC had not consulted the firms which were the authors of the requested documents, since it had taken the view that the exception laid down in Article 4(2), first indent, of the Regulation was applicable. However, when the complainant made a confirmatory application, such a consultation was carried out in order to make a new assessment to ascertain whether the disclosure of the requested documents would have caused prejudice to the commercial interests of the firms concerned.

The Commission finally recalled that the complainant's client, M.P.M., had not been selected because it had not met one of the selection criteria announced in the call for tenders. The content of the documentation submitted by the other firms would therefore have no relevance in this respect.

The complainant's observations

In his observations, the complainant stated that the Commission had given its opinion in English and not in Italian, which was the language chosen by him, in accordance with Article 21 of the EC Treaty. He had therefore had to translate the Commission's opinion into Italian for his client M.P.M., on whose behalf he complained to the Ombudsman.

The complainant further took note of the fact that the Commission acknowledged that its reply to his confirmatory application had been delayed. However, he stated that the Commission had informed him of its inability to reply within the deadline only when that deadline had already expired and failed to give reasons for this delay. This was contrary to Article 8(2) of Regulation 1049/2001 which foresees that "(…)[t]he 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". The complainant further stated that he had received the Commission's reply only on 27 November 2002. Contrary to what had been emphasised by the Commission in its opinion, his client, M.P.M., had suffered damages because of the Commission's failure to reply within the deadline, since it had not been aware of relevant elements which could have been taken into account when starting legal proceedings before the administrative court in Italy, for which the deadline had been 12 November 2002. The complainant also considered that the Commission was wrong in affirming that this delay in replying did not prejudice the rights of his client.

As regards the allegation concerning the Commission's decision on his request for access to documents, the complainant stated that the Commission maintained the same position that it had taken in its letter of 13 November 2002. According to the complainant, the Commission failed to give reasons for why the disclosure of the requested documents could have caused prejudice to the commercial interests of the bidding firms, given that the tender procedure had already been carried out. The complainant argued that such a prejudice could have been possible during the relevant procedure but not after its conclusion. The complainant also pointed out that the balance sheet of a company, which was among the documents to which the Commission denied access, is a public document in Italy. The complainant therefore took the view that it was a contradiction on the part of the Commission to deny access to a public document. He further considered that, in view of the nature of the requested documents, consultation by the Commission with the third parties who had authored them was unnecessary.

The complainant finally asked the Ombudsman to make use of all the instruments foreseen by his Statute and by the implementing provisions for cases of maladministration.

Further inquiries
Request for further information

The Ombudsman considered that, in order to pursue his inquiries into the present complaint, it was necessary to ask the Commission for further information. On 8 December 2004, he therefore wrote to the Commission, asking the institution to comment on the complainant's observations and, more specifically, on the complainant's argument that some of the documents (or parts thereof) to which he asked to be given access were public documents in Italy and that, as a result, it was contradictory for the Commission to deny public access to a public document.

The Commission's reply

In its reply, the Commission stated that, in accordance with Italian law, most companies must deposit their balance sheets at the Companies' Register (Registro delle Imprese) and that any person may request access to these balance sheets from any Chamber of Commerce in Italy, regardless of the place of registration of the company. Any interested person can therefore easily obtain all information regarding the balance sheets of a company from his local Chamber of Commerce.

According to the Commission, such balance sheets were possibly included in the documentation submitted by the tendering companies. However, the Commission was not in a position to determine which documents had been or should have been deposited at the Companies' Register. It was not possible for the institution to distinguish between documents to which the public might have access through the Chambers of Commerce and those which cannot be disclosed because of the need to protect the commercial interests of the tendering companies.

The Commission considered that it correctly applied Regulation 1049/2001 by considering the relevant documents to be covered by the relevant exception(7).

The complainant's observations

In his observations on the Commission's reply, the complainant took the view that the Commission had essentially confirmed his position. He further considered that the position adopted by the Commission regarding his request to have access to the relevant documents could not be accepted. According to the complainant, the Commission's argument that it was not in a position to distinguish between documents to which the public might have access through the Chambers of Commerce and those which cannot be disclosed was unacceptable, unless it is accepted that the Commission is not expected to be cognisant of the national law applicable in the Member States. According to the complainant, the Commission had all the possibilities, in terms of human resources and structures, to obtain the relevant information with regard to requests for access to documents.

As regards the alleged failure by the Commission to comply with the deadline foreseen in Regulation 1049/2001 when dealing with his confirmatory application, the complainant noted that the institution had not made any further comments.

The complainant maintained his complaint and insisted that the Ombudsman should make use of all the instruments foreseen by his Statute and by the implementing provisions concerning cases of maladministration.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 16 November 2005, the Ombudsman addressed the following draft recommendation to the Commission, in accordance with Article 3(6) of his Statute:

The Commission should reconsider its decision of 13 November 2002 on the complainant's confirmatory application for access and grant access to those documents or parts thereof that are not covered by the exception set out in Article 4(2), first indent, of Regulation 1049/2001, or provide sufficiently detailed explanations to show that some or all of these documents or parts thereof are covered by the said exception.

This draft recommendation was based on the following considerations.

1. As regards the complainant's allegation that the Commission's decision to refuse full access to the requested documents was unfair, the Ombudsman notes that the unfairness alleged by the complainant appears to consist in his wrong interpretation of Regulation 1049/2001, which regulates public access to European Parliament, Council and Commission documents.

The Ombudsman further notes that, in its opinion, the Commission stated that the applicable legislation in the present case was Regulation 1049/2001 and that the Italian legislation to which the complainant had referred in his request for access to documents and in his complaint to the Ombudsman was not relevant and could therefore not be taken into account. In his observations, the complainant has not made comments on the Commission's statement as regards this point. The Commission's position appears to be correct.

In these circumstances, the Ombudsman's examination is therefore limited to ascertaining whether Regulation 1049/2001 has been respected.

2. The purpose of Regulation 1049/2001 is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty. However, Regulation 1049/2001 contains certain exceptions which, as consistently held by the Community courts, have to be interpreted and applied restrictively so as not to frustrate the application of the general principle of giving the public the widest possible access to documents held by the Commission(8).

One of these exceptions is foreseen by Article 4(2), first indent, which provides that "the institutions shall refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person (…)".

3. As regards the procedural aspects of the Commission's handling of his confirmatory request, the Ombudsman considers that the Commission's decision to consult the third parties who had authored these documents in order to dispel any doubts on the nature of the relevant documents and to examine the possibility of granting wider access than that accorded at the initial stage was not in contradiction with Regulation 1049/2001. The Ombudsman therefore considers that there has been no maladministration by the Commission as regards this aspect of the case. Furthermore, he notes that the complainant himself, in his confirmatory application, appeared to suggest that the Commission should consult the relevant third parties with a view to assessing whether an exception was applicable in the present case.

4. Concerning the complainant's allegation that, when dealing with his confirmatory application, the Commission did not comply with the deadline provided for by Regulation (EC) No 1049/2001, the Ombudsman considered that a substantial delay had occurred and that the Commission had thus failed to act in accordance with Article 8(2) of Regulation 1049/2001. This constituted an instance of maladministration.

5. As regards the substance of the case, the documents to which the Commission refused to grant access essentially consisted of the offers made by the companies other than M.P.M., which had participated in the relevant call for tenders. In view of their nature, it can reasonably be assumed that these documents contained information (such as the prices quoted), the disclosure of which could affect the commercial interests of the relevant firms. The Ombudsman therefore considers that the Commission's view that the exception foreseen by Article 4(2), first indent, of Regulation 1049/2001 applied in the present case was, in principle, correct.

6. As regards the complainant's point that the commercial interests of the other firms could only have been affected by a disclosure during the relevant procedure but not after its conclusion, the Ombudsman takes the view that, in the light of the information which these documents contained, it does not appear unreasonable to assume that the risk of prejudice for the commercial interests of the firms which had taken part in a call for tenders could persist even after the conclusion of the tender procedure.

It appears appropriate to point out that the present allegation is directed at the Commission's decision of 13 November 2002 to reject the complainant's confirmatory application for access to documents concerning the relevant tender. The Ombudsman's inquiry thus has to focus on examining whether this decision was correct. However, it appears that the tender procedure was only concluded on 17 July 2002, that is to say, less than four months before the Commission adopted its decision. The time that has elapsed since the decision of July 2002 is thus irrelevant for determining whether there was maladministration as regards the Commission's decision of 13 November 2002.

7. Concerning the exception laid down by Article 4(2), first indent, of Regulation 1049/2001, it has to be noted that, in accordance with the same article, access to documents has to granted to the applicant even where the relevant exception applies if there is an overriding public interest in disclosure.

As the Ombudsman has already held in previous decisions, it follows from the structure and the wording of the provision concerned that the presence of an overriding public interest in disclosure normally has to be established by the person seeking access(9). In the present case, the Ombudsman takes the view that the complainant has not established that there was an overriding public interest in the disclosure of the requested documents.

The Ombudsman notes that, in his confirmatory application for access, the complainant argued that his company had a special interest in being given access to the documents concerned on account of the fact that it had taken part in the tender and that access to these documents was relevant to its rights of defence. However, any such interest would (if established) in any event not constitute a public interest that could override the exception laid down in Article 4(2) of Regulation 1049/2001.

8. Furthermore, the Ombudsman would like to stress that, as correctly pointed out by the Commission, Regulation 1049/2001 does not grant specific rights of access to interested parties. The reasons for which access is requested are therefore irrelevant under Regulation 1049/2001 and a request for access then does not depend on the existence of any specific or legitimate interest on the part of the applicant.

For this reason, the Ombudsman considers that the Commission's argument that the content of the documentation submitted by the other firms that had taken part in the same call for tenders as M.P.M was not relevant for the complainant's client is thus not pertinent to the present case.

9. The Ombudsman recalls, however, that Article 4(6) of Regulation 1049/2001 provides that "if only parts of the requested document are covered by any of the exceptions laid down in paragraph 1 or 2, the remaining part of the document shall be released".

In its reply to the complainant's confirmatory application, the Commission stated that partial access was not possible because the relevant documents were entirely covered by the exception foreseen by Article 4(2), first indent, of Regulation 1049/2001.

10. However, in its reply to the Ombudsman's letter of 8 December 2004, the Commission admitted that balance sheets accessible to the public under Italian law were possibly included in the documentation submitted by the tendering companies. The Ombudsman therefore takes the view that, as regards these documents, there were no reasons to deny access to the complainant.

11. The Ombudsman takes note of the Commission's submission that it was not in a position to distinguish between those documents to which the public might have been given access through the Chambers of Commerce and those which cannot be disclosed because of the need to protect the commercial interests of the tendering companies.

However, Article 4(2), first indent, of Regulation 1049/2001 only allows the Commission to refuse access to those documents the disclosure of which would undermine the protection of commercial interests of the natural or legal person concerned. The burden of proof is thus clearly on the Commission. Access therefore has to be granted where the Commission cannot show that the said exception applies. It should further be noted that the Commission had the possibility of addressing itself to the companies that had submitted the relevant documents or to the Italian authorities if it considered that it needed further clarification in this regard in order to deal with the complainant's request for access.

12. As regards the possibility of granting access to parts of the relevant documents other than access to balance sheets that may be available to the public under Italian law, the Commission limited itself to stating that partial access was not possible since the documents requested by the complainant contained information affecting commercial interests and should therefore be covered by the exception provided for in Article 4(2). Principles of good administration require, however, that a decision adversely affecting an individual shall state the grounds on which it is based in sufficient detail in order to enable the persons concerned to ascertain the reasons on which the relevant decision is based and to make it possible for the competent authorities to exercise their power of review.

In the present case, the Ombudsman notes that the Commission limited itself to stating that no partial access could be granted, without providing information as to whether the relevant exception invoked covered each and every part of the requested documents.

13. On the basis of the above, the Ombudsman takes the view that the Commission has failed to handle properly the application for access to documents made by the complainant. This conclusion is based on the considerations that, first, the Commission itself has accepted that some of the documents in its possession could be documents which under Italian law are public and that therefore a refusal to grant access to such documents does thus not appear to be justified; and that, secondly, the Commission has failed to provide adequate reasons for its refusal to grant partial access to other parts of the relevant documents.

The Ombudsman understands that an examination of all the documents requested on an individual basis with a view to establishing which of them could be disclosed might constitute a serious administrative burden for the Commission. However, the Commission has not shown that this examination would constitute a disproportionate administrative burden in the present case. It should also be noted that Article 6(3) of Regulation 1049/2001 foresees that, in the event of an application relating to very long documents or to a very large number of documents, the institution may confer with the applicant informally, with a view to finding a fair solution.

The Commission's detailed opinion

In its detailed opinion, the Commission stated that it had reconsidered the complainant's application for access to documents with regard to (i) access to the balance sheets of the tendering companies, since these documents are public under Italian law and (ii) partial access to the other documents contained in the submissions of the tendering companies.

Concerning the access to the balance sheets, the Commission emphasised that its file regarding the relevant call for tenders, in which the complainant's client had participated, contained balance sheets of the tendering companies for the years 1999, 2000 and 2001. Furthermore, it contained copies of certificates of registration at the Companies's Register (Camera di Commercio, Industria, Artigianato e Agricoltura - CCIAA-) and of the Quality System Certificates.

Since any citizen has the possibility to obtain the balance sheets from any Chamber of Commerce in Italy, the Commission agreed that these documents are, in accordance with Italian law, public documents. However, they are not available to the public free of charge and the Chambers of Commerce charge fees when they deliver these documents. The documents in question can also be purchased through certain websites such as "www.infoaffari.com" or "www.infocomas.it". Regarding the Quality System Certificates, they can be found for free on the website of SINCERT, that is, the database of the Italian body dealing with certification and accreditation of companies in Italy.

According to its recital 15, Regulation 1049/2001 has neither the object nor the effect to amend national legislation on access to documents. In the Commission's view, it would have therefore been inappropriate and contrary to the principle of loyal co-operation between the institution and the Member State concerned for it to provide free copies of the balance sheets to the public in contravention of national rules establishing conditions for obtaining the same documents.

The Commission therefore proposed, as a fair solution, to allow the complainant to consult the relevant balance sheets and certificates of the bidding companies at the premises of the JRC in Ispra. In case he wished to obtain copies of these documents, he could easily do so by contacting the competent Chamber of Commerce or by consulting the appropriate websites.

Concerning the possibility of granting partial access to the other documents contained in the offers of the tendering companies, the Commission stated that these documents consisted almost entirely of information concerning the companies. The examination, page by page, of this documentation and the extraction of limited fragments thereof would have created a totally disproportionate administrative burden. The Commission considered that the public interest in obtaining access to fragmentary parts of the document did not justify the excessive administrative work that such an exercise would have necessitated. The Commission further recalled that the Court of First Instance had established that the institutions might, in particular cases, balance the public's interest in having partial access to the requested documents against the burden of consequent work and that they are entitled to refuse such partial access when the examination of the documents in question shows that the partial access would have been meaningless while the burden of work required would be disproportionate(10).

The complainant's observations on the Commission's detailed opinion

In his observations on the Commission's detailed opinion, the complainant noted that the Commission did not make any comments on the conclusion that the Ombudsman had reached in his draft recommendation concerning his allegation that the Commission had failed to deal with the complainant's confirmatory application within the foreseen deadline.

Concerning the Commission's comments on the substantive aspect of his request for access to documents, the complainant emphasised that only in its detailed opinion to the Ombudsman's draft recommendation had the Commission recognised for the first time, and after almost four years after the relevant request, that certain of the documents requested were indeed public documents. It clearly emerged that the Commission's refusal to disclose documents such as the balance sheets of those companies that had participated in the same call for tenders in which his client had participated was unjustified. The complainant further noted that, in its detailed opinion, the Commission now proposed to allow him to consult the relevant documents at the premises of the JRC in Ispra and that it invoked recital 15 of Regulation 1049/2001 in order to justify not delivering the documents directly to him. Since in Italy the national authorities charge fees for giving copies of documents like those requested by the complainant, in the Commission's view it would have been inappropriate and contrary to the principle of loyal co-operation between the institution and the Member State concerned for it to provide free copies of the relevant documents. According to the complainant, the principle of loyal co-operation had been erroneously invoked by the Commission. In accordance with Article 10 of Regulation 1049/2001 describing how access to documents following an application can be granted, "(...) [T]he cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge (...)". The complainant therefore could not understand how the principle invoked by the Commission was relevant in the context of the present case. He further emphasised that the Commission had never considered the possibility of charging him a fee for access to the documents requested. Concerning the Commission's proposal to allow him to consult the relevant documents at the premises of the JRC in Ispra, the complainant took the view that the reply given was neither adequate nor worthy of an institution like the Commission. He further took the view that it was not acceptable that almost four years after his original request for access to documents the Commission proposed something that he himself had already proposed in his letter of 6 August 2002, when he stated that he would be ready to carry out a consultation of the relevant documents on the Commission's premises.

Concerning the Commission's position on the possibility to grant partial access, the complainant considered that it was unfounded and that the Commission had still failed to show that the examination of each of the documents concerned by his request of access would have constituted a disproportionate administrative burden. The Ombudsman also noted that, on the basis of Article 6(3) of Regulation 1049/2001, in the event of an application relating to very long documents or to a very large number of documents, the institution may confer with the applicant informally, with a view to finding a fair solution. However, it emerged from its detailed opinion that the Commission failed to take this possibility into consideration. The Commission had neither given information about the allegedly disproportionate administrative burden for examining all the relevant documents (that is, the Commission should have at least indicated how many documents should have been analysed and or how voluminous they were) nor had it conferred with him as foreseen by Regulation 1049/2001 and suggested by the Ombudsman in his draft recommendation.

The complainant expressed the hope that the Ombudsman would accept his grievances and adopt any appropriate action to correct the Commission's maladministration.

THE DECISION

1 Preliminary remarks

1.1 The European Ombudsman notes that, in his observations on the Commission's opinion, the complainant stated that the European Commission had given its opinion in English and not in Italian, which was the language chosen by him. He had therefore had to translate the Commission's opinion into Italian for his client, the Italian company M.P.M. Costruzioni edili s.r.l. ("M.P.M."), on whose behalf he had complained to the Ombudsman.

1.2 In this regard, the Ombudsman would like to clarify that, as a general procedure, the Commission sends him its opinions in English or French, followed by a translation of the opinion into the language of the complaint.

1.3 It is certain that Commission's opinion should have been sent to the complainant in its Italian version. It appears, therefore, that the English version of the opinion was sent to him by mistake. In view of the fact that the complainant, in his observations, had emphasised that he had already provided M.P.M with a translation of the Commission's opinion, the Ombudsman assumed that he was no longer interested in receiving the Italian translation of the Commission's opinion. The Ombudsman apologises to the complainant for the mistake which occurred in the transmission of the Commission's opinion.

2 The Commission's decision concerning the complainant's request for access to documents and the complainant's claim

2.1 M.P.M. had set up a consortium with three other companies and participated in a call for tenders launched, on 31 January 2002, by the Commission's Joint Research Centre ("JRC") for small and medium-sized construction, restructuring and maintenance works for various buildings and drainage systems at the JRC's Ispra site. The consortium's offer was not selected.

On 31 July 2002, the complainant, who complained on behalf of M.P.M., made a request for access to documents. Both his initial request and his confirmatory application (submitted on 6 September 2002) were rejected by the Commission on the basis of the exception laid down by Article 4(2), first indent, of Regulation 1049/2001 public access to European Parliament, Council and Commission documents(11).

In his complaint to the Ombudsman, the complainant alleged that the Commission's decision not to allow him full access to the requested documents was unfair and inadequately reasoned. He claimed that the Commission should reconsider its position and give him full access to the requested documents.

2.2 In its opinion, the Commission stated that the applicable legislation in the present case was Regulation 1049/2001 and that the Italian legislation to which the complainant had referred in his request for access to documents and in his complaint to the Ombudsman was not relevant and could therefore not be taken into account.

Furthermore, it took the view that that the documentation provided by the firms which participated in the relevant call for tenders contained confidential business information and that the disclosure of such information would have adversely affected their commercial interests. The interest of the complainant's client in obtaining access to these documents was a private interest and could not be invoked as an overriding public interest. When deciding on the complainant's request, the Commission had to strike a fair balance between, on the one hand, the legitimate interest of the complainant's client in understanding the reasons for awarding the contract to another firm and, on the other hand, the legitimate expectations of the bidding firms that the information provided for the purpose of the tender would be handled properly. The Commission considered that the JRC had provided the complainant with all the relevant documentation explaining the procedure that had been followed, the criteria for assessing the tenders, the evaluation of the proposal and the final conclusion of the advisory committee.

Moreover, in accordance with Article 4(4) of Regulation 1049/2001, in the case of a third-party document, the author of the document had to be consulted on the disclosure of its document "unless it is clear that the document shall or shall not be disclosed". When handling the initial application made by the complainant, the JRC had not consulted the firms which were the authors of the requested documents, since it had taken the view that the exception laid down in Article 4(2), first indent, of the Regulation was applicable. However, when the complainant made a confirmatory application, such a consultation was carried out in order to make a new assessment to ascertain whether the disclosure of the requested documents would have caused prejudice to the commercial interests of the firms concerned.

2.3 On 16 November 2005, having considered the information provided to him by both the Commission in its opinion of 24 June 2003 and in its reply to his request for further information, the Ombudsman addressed a draft recommendation to the Commission, in accordance with Article 3(6) of the Statute of the European Ombudsman.

In his draft recommendation, the Ombudsman emphasised that the Commission should either reconsider its decision of 13 November 2002 on the complainant's confirmatory application for access and grant access to those documents or parts thereof that are not covered by the exception set out in Article 4(2), first indent, of Regulation 1049/2001, or provide sufficiently detailed explanations to show that some or all of these documents or parts thereof are covered by the said exception.

2.4 In its detailed opinion, the Commission stated that it had reconsidered the complainant's application for access to documents as requested by the Ombudsman.

The Commission emphasised that its file regarding the relevant call for tenders in which the complainant's client had participated contained balance sheets of the tendering companies for the years 1999, 2000 and 2001. Furthermore, it contained copies of certificates of registration at the Companies's Register (Camera di Commercio, Industria, Artigianato e Agricoltura - CCIAA-) and of the Quality System Certificates.

Since any citizen has the possibility to obtain the balance sheets from any Chamber of Commerce in Italy, the Commission agreed that these documents are, in accordance with Italian law, public documents. However, since they are not available to the public for free in Italy, the Commission took the view that it would have been inappropriate and contrary to the principle of loyal co-operation between the institution and the Member State concerned for it to provide the complainant with free copies of the relevant documents. The Commission based its considerations on recital 15 of Regulation 1049/2001 according to which the Regulation has neither the object nor the effect of amending national legislation on access to documents.

The Commission therefore proposed, as a fair solution, to allow the complainant to consult the relevant balance sheets and certificates of the bidding companies at the premises of the JRC in Ispra. In case he wished to obtain copies of these documents, the Commission stated that he could easily do so by contacting the competent Chamber of Commerce or by consulting the appropriate websites.

Concerning the possibility of granting partial access to the other documents contained in the offers of the tendering companies, the Commission stated that these documents consisted almost entirely of company information. The examination, page by page, of this documentation and the extraction of limited fragments thereof would have created a totally disproportionate administrative burden. The Commission considered that the public interest in obtaining access to fragmentary parts of the document did not justify the excessive administrative work that such an exercise would have necessitated.

2.5 In his observations on the Commission's detailed opinion, the complainant emphasised that it was only in its detailed opinion on the Ombudsman's draft recommendation that the Commission had recognised for the first time, and almost four years after the relevant request, that certain of the documents requested were indeed public documents. The Commission's refusal to disclose documents such as the balance sheets of those companies that had participated in the same call for tenders in which his client had participated therefore appeared to be unjustified. The complainant further noted that, in its detailed opinion, the Commission now proposed to allow him to consult the relevant documents at the premises of the JRC in Ispra and that it invoked recital 15 of Regulation 1049/2001 for not delivering the documents directly to him. According to the complainant, the Commission had erroneously invoked the principle of loyal co-operation.

In accordance with Article 10 of Regulation 1049/2001, "(...) [T]he cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge (...)". However, the Commission had never considered the possibility of charging a fee for granting access to the documents requested.

Concerning the Commission's proposal to allow him to consult the relevant documents at the premises of the JRC in Ispra, the complainant took the view that the reply given was neither adequate nor worthy of an institution like the Commission. He further took the view that it was not acceptable that almost four years after his original request for access to documents the Commission proposed something that he himself had already proposed in his letter of 6 August 2002, when he stated that he would be ready to carry out a consultation of the relevant documents on the Commission's premises.

Concerning the possibility of granting partial access, the complainant considered that the Commission had still failed to show that the examination of each of the documents concerned by his request of access would have constituted a disproportionate administrative burden. The Ombudsman also noted that, on the basis of Article 6(3) of Regulation 1049/2001, in the event of an application relating to very long documents or to a very large number of documents, the institution may confer with the applicant informally, with a view to finding a fair solution. However, it emerged from its detailed opinion that the Commission failed to take this possibility into consideration. The Commission had neither given information about the allegedly disproportionate administrative burden for examining all the relevant documents (that is, the Commission should have at least indicated how many documents should have been analysed and or how voluminous they were) nor had conferred with him as foreseen by Regulation 1049/2001 and suggested by the Ombudsman in his draft recommendation.

2.6 The Ombudsman recalls that the operational part of his draft recommendation was that the Commission should either reconsider its decision of 13 November 2002 on the complainant's confirmatory application for access and grant access to those documents or parts thereof that are not covered by the exception set out in Article 4(2), first indent, of Regulation 1049/2001, or provide sufficiently detailed explanations to show that some or all of these documents or parts thereof are covered by the said exception.

2.7 From the Commission's detailed opinion, it emerges that the Commission has reconsidered the complainant's request for access to documents and has recognised that a certain number of the documents requested are publicly available in Italy and that therefore there were no substantive reasons to deny access to them. The Ombudsman notes, however, that the institution has nevertheless not granted the complainant access to these documents, but has offered to allow him to consult the relevant documents at the JRC's premises in Ispra. Furthermore, it emerges that the Commission has also refused to grant partial access to the other documents contained in the offers of the tendering companies.

In light of the above, the Ombudsman therefore considers that the Commission has not complied with his draft recommendation.

2.8 Principles of good administration require that an institution should provide valid reasons for refusing access to documents on the basis of Regulation 1049/2001.

In view of the fact that the Commission has not granted access to some of the documents requested by the complainant, even though it has accepted that they are public documents, it is therefore necessary to examine the reasons given by the Commission to justify its position.

2.9 The Ombudsman notes that the Commission submitted that, since access to these documents is not free of charge in Italy, delivering these documents to the complainant free of charge would have been inappropriate and contrary to the principle of loyal co-operation between the institution and the Member State concerned. In this regard, the Commission invoked recital 15 of Regulation 1049/2001, according to which Regulation 1049/2001 has neither the object nor the effect of amending national legislation on access to documents.

In accordance with established case-law of Community courts in relation to the provisions of the previous legislation, exceptions to public access to documents have to be interpreted and applied restrictively, so as not to frustrate the application of the general principle of giving the public the widest possible access to documents(12).

In the present case, the Ombudsman notes that, in order to justify its refusal to grant access to those documents whose public nature it had recognised, the Commission did not rely on any of the exceptions foreseen by Regulation 1049/2001 but invoked a recital of the said Regulation.

2.10 The principle of loyal cooperation invoked by the Commission is indeed a principle of Community law as foreseen by Article 5 of the EC Treaty and repeatedly referred to by Community courts(13). However, the Ombudsman does not share the Commission's point the view that, since the provision of the relevant documents is not free of charge in Italy, the principle of loyal co-operation between the institution and the Member State concerned would be infringed if these documents were provided to the complainant. This principle, referred to by Regulation 1049/2001 in its recital 15, underlies Article 4(5) and Article 5 of the said Regulation, according to which "[a] Member State may request the institution not to disclose a document originating from that Member State without its prior agreement" and "[w]hen a Member State receives a request for a document in its possession originating from an institution, unless it is clear that the document shall or shall not be disclosed, the Member State shall consult with the institution concerned in order to take a decision that does not jeopardise the attainment of the objectives of this Regulation". The Ombudsman notes that the aim of these provisions is to avoid a circumvention of the substantive rules on access to documents at the level of the European Union and at that of the Member States respectively. The intent of these provisions, in other words, is to avoid the eventuality that a document originating from a Member State, access to which is not possible under national law, can be obtained via a request for access made at the level of the European Union. However, there is no provision that would oblige the European Union to refuse granting access to documents purely because the disclosure of these documents in a Member State is not free of charge. It is clear that any such exception would moreover have to be set out in Regulation 1049/2001 itself. However, no such exception is to be found in Regulation 1049/2001. In light of the above, the Ombudsman therefore considers that the Commission has failed to provide valid reasons for its refusal to grant access to the documents requested by the complainant.

Besides, access granted in accordance with Regulation 1049/2001 does not necessarily have to be for free. As foreseen by Article 10 of the said Regulation, when granting access to documents "(...) [t]he cost of producing and sending copies may be charged to the applicant". If the Commission considered it to be appropriate, it could have therefore charged the complainant the price of producing and sending the relevant documents.

2.11 Concerning the possibility of granting partial access to the documents covered, the Commission argued that, in citing the exception of Article 4(2), first indent, of Regulation 1049/2001 in his draft recommendation, the Ombudsman accepted that the Commission was allowed to refuse access to those documents the disclosure of which would undermine the protection of commercial interests of the natural or legal person concerned. Since the burden of proof is thus clearly on the Commission, it follows that access has to be granted where the Commission cannot show that the said exception applies.

2.12 The Ombudsman notes that, in its detailed opinion, the Commission stated that the page by page examination of the documentation and the extraction of limited fragments thereof would have created a totally disproportionate administrative burden. The Commission considered that the public interest in obtaining access to fragmentary parts of the document did not justify the excessive administrative work that such an exercise would generate. In order to support its position, the Commission recalled that the Court of First Instance had established that the institutions might, in particular cases, balance the public's interest in having partial access to the requested documents against the burden of work so caused and that they are entitled to refuse such partial access when the examination of the documents in question showed that the partial access would have been meaningless while the burden of work required would be disproportionate(14).

2.13 The Ombudsman is aware of the fact that, as correctly stated by the Commission, the Court of First Instance has held that if the granting of partial access were to require a disproportionate work for he institution concerned, the latter is entitled to refuse such partial access.

The Ombudsman notes however, that in Case T-2/03(15), the Court has also stated that, when the failure to carry out a concrete, individual examination of the documents in question is based on the application of the principle of proportionality, it must be examined whether it is permissible, on the basis of this principle, to refrain from applying the principle to a concrete and individual examination of the document in question. According to the Court "the principle of proportionality requires that the measures adopted by the institutions do not have to exceed the limit of what is appropriate and necessary in order to attain the objectives pursued; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aim pursued. (...). Consequently, the refusal by an institution to examine concretely and individually the documents that are the object of a request for access constitutes, in principle, a manifest breach of the principle of proportionality. (...). Where a request relates to a very large number of documents, the institution's right to seek a fair solution together with the applicant, pursuant to Article 6(3) of Regulation 1049/2001, reflects the possibility to account being taken, albeit in a particularly limited way, of the need, where appropriate, to reconcile the interests of the applicant with those of good administration" (paragraphs 99-101).

The Court further emphasised that "concrete, individual examination of the documents referred to in a request for access under Regulation 1049/2001 is one of the elementary duties of an institution in response of such a request" (paragraph 104) and that "it is not, in principle, appropriate that account should be taken of the amount of work entailed by the exercise of the applicant's right of access" (paragraph 108). In the Court's view, "the amount of work entailed in considering a request for access depends not only on the number of documents referred to in the request and their volume, but also on their nature. Consequently, the need to undertake a concrete, individual examination of very numerous documents does not, on its own, provide any indication of the amount of work entailed in processing a request for access (...)" (paragraph 111). "Finally, where the institution has adduced proof of the unreasonableness of the administrative burden entailed by a concrete, individual examination of the documents referred to in the request, it is obliged to try to consult with the applicant in order (...) to consider specifically whether and how it may adopt a measure less onerous that a concrete, individual examination of the documents" (paragraph 114).

2.14 The Ombudsman notes that in the present case the Commission has not shown that it carried out an individual examination of all the relevant documents, by indicating, for example, the number of documents that had been analysed or their length. Furthermore, it appears that the Commission has failed to make use of the possibility provided for in Article 6(3) of Regulation 1049/2001, notwithstanding the relevant suggestion made by the Ombudsman in his draft recommendation. According to this provision, "[i]n the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution". However, it appears that the Commission refused to grant partial access without providing any relevant explanation in its detailed opinion.

The Ombudsman therefore considers that, by limiting itself to affirming that the page by page examination, of the documents requested by the complainant and the extraction of limited fragments thereof would have created a totally disproportionate administrative burden, the Commission has failed to provide sufficient and convincing reasons for refusing partial access to the documents requested by the complainant.

2.15 On the basis of the above it appears that there has been maladministration by the Commission concerning this aspect of the case.

3 Alleged failure by the Commission to deal with the complainant's confirmatory application within the foreseen deadline

3.1 On 31 July 2002, the complainant asked the Commission to give him access to the documents concerning the call for tenders in which the Italian company M.P.M., on whose behalf the complainant had submitted a complaint, had participated.

The Commission gave him access to some of the documents that he had requested. However, it refused to allow the complainant access to the documents concerning the offers made by the companies other than M.P.M. which had participated in the tender, including the company which had been awarded the contract. The complainant then made a confirmatory application. In its reply of 13 November 2002, the Commission maintained its position.

In his complaint, the complainant alleged that, when dealing with his confirmatory application, the Commission did not comply with the deadline provided for by Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(16) ("Regulation 1049/2001").

3.2 In its opinion, the Commission agreed that its reply had been delayed. The confirmatory application for access to documents had been received by fax on 6 September 2002. However, in view of the time required to consult the firms involved by the request, the Commission had decided to extend by 15 working days the deadline required to provide a reply to the complainant. The complainant had been informed accordingly by letter of 26 September 2002. According to the Commission, the final deadline for reply was therefore 18 October 2002. However, the reply had been sent to the complainant on 13 November 2002, that is, 17 working days later. The Commission regretted the delay which had occurred in this case and explained that it had been due to the length of time necessary for the consultation process.

The Commission took the view that this delay had not prejudiced the rights complainant's client in view of the fact that, as established by Article 8 of Regulation 1049/2001, failure to reply within the prescribed time-limit has to be considered as a negative reply and entitles the applicant to bring proceedings before the Court of First Instance or to complain to the Ombudsman.

3.3 In his observations, the complainant stated that the Commission informed him that it could not reply within the deadline only after that deadline had already expired and that it had failed to give reasons for this delay. This was contrary to Article 8(2) of Regulation 1049/2001 which foresees that "[t]he 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".

3.4 Principles of good administration require that the institutions deal with citizen's requests rapidly and in accordance with the relevant rules.

3.5 As already stated in previous decisions(17), the Ombudsman considers that the rule that the lack of a reply to a confirmatory application constitutes a negative decision has the purpose of protecting the person concerned from further delay in case the authority fails to act within the time-limit foreseen by Regulation 1049/2001. The Ombudsman takes the view, however, that principles of good administration require that the institutions reply to requests made by citizens and give reasons for their decisions. The above-mentioned rule does not entitle the authority to depart from its obligation to follow principles of good administrative behaviour(18).

3.6 The Ombudsman furthermore considers that, although a failure to reply to a confirmatory application does not prevent an applicant from instituting court proceedings or from pursuing his application before the Ombudsman, the complainant would in such a case be unable to know on what substantive reasons the refusal to grant or to deny access was based. Failure to reply to a confirmatory application would therefore be likely to impair the applicant's capacity to pursue his case.

3.7 The Ombudsman therefore considers that, as a general rule, failure by an institution to provide a reasoned reply to a confirmatory application within the time-limit of 15 working days constitutes an instance of maladministration.

3.8 In the present case, the complainant made a confirmatory application for access to documents on 6 September 2002. In view of the time required to consult the firms involved by the request, the Commission decided to extend the deadline to provide a reply to the complainant and informed the complainant by letter of 26 September 2002. According to the Commission, the final deadline for reply was therefore 18 October 2002.

3.9 However, as the Commission acknowledged in its opinion, the reply to the complainant's confirmatory application was sent to him on 13 November 2002, that is, 17 working days after the deadline of 18 October 2002 had expired.

3.10 In view of the above, it appears that a substantial delay occurred when the Commission handled the complainant's confirmatory request and that the Commission thus failed to act in accordance with Article 8(2) of Regulation 1049/2001. This constitutes an instance of maladministration.

3.11 As regards the complainant's point that, when the Commission informed him that it could not reply within the deadline, that deadline had already expired, the Ombudsman notes that the Commission has not dealt with this aspect of the case either in its opinion or in its reply to the Ombudsman's request for further information. In view of the wording of the letters sent to the Commission by the Ombudsman when opening the present inquiry and when asking for further information, it appears possible that the Commission did not understand that it should reply to this point as well.

However, in view of the fact that there was, in any event, a substantial delay as regards the Commission's handling of the complainant's confirmatory application, the Ombudsman does not consider that there are grounds to pursue his inquiry as far as this aspect of the case is concerned.

3.12 In his draft recommendation to the Commission, the Ombudsman has informed the institution of the conclusion that he has reached concerning this aspect of the case. He notes, however, that, in its detailed opinion, the Commission did not comment on this issue. It is therefore appropriate to make a critical remark in this regard.

4 Conclusion

4.1 On the basis of the Commission's detailed opinion, the Ombudsman considers that the Commission has not complied with his draft recommendation.

He further considers that it is necessary to make the following critical remarks:

(1) Principles of good administration require that an institution should provide valid reasons for refusing access to documents on the basis of Regulation 1049/2001.

The Commission accepted that certain of the documents requested by the complainant were public documents under Italian law. However, the Commission considered that, since the access to these documents is not free of charge in Italy, providing these documents free of charge to the complainant would have been inappropriate and contrary to the principle of loyal co-operation between the institution and the Member State concerned. The principle of loyal co-operation is recalled by Regulation 1049/2001 in its recital 15 and underlies Article 4(5) and Article 5 of the said Regulation.

The aim of these provisions is to avoid a circumvention of substantive rules on access to documents at the level of the European Union and at that of the Member States respectively. The intent of these provisions, in other words, is to try to avoid the eventuality that a document originating from a Member State, access to which is not possible under national law, can be obtained via a request for access made at the level of the European Union. However, there is no provision that would oblige the European Union to refuse granting access to documents purely because the disclosure of these documents in a Member State is not free of charge. It is clear that any such exception would moreover have to be set out in Regulation 1049/2001 itself. However, no such exception is to be found in Regulation 1049/2001. In light of above, the Ombudsman therefore considers that the Commission has failed to provide valid reasons for its refusal to grant access to the documents requested by the complainant.

As regards the possibility of granting partial access, the Commission recalled that the Court of First Instance had established that the institutions might, in particular cases, balance the public's interest in having partial access to the requested documents against the burden of work so caused and that they are entitled to refuse such partial access when the examination of the documents in question shows that partial access would have been meaningless while the burden of work required would be disproportionate. The Ombudsman acknowledges this principle. He notes, however, that the Court made this principle dependant on a concrete and individual examination of the documents in question. However, no such concrete and individual examination appears to have been carried out in the present case.

In these circumstances, the Ombudsman considers that, by limiting itself to affirming that the page by page examination of the documents requested by the complainant and that the extraction of limited fragments thereof would have created a totally disproportionate administrative burden, the Commission has failed to provide sufficient and convincing reasons for refusing partial access to the documents requested by the complainant.

The Commission's way of handling the substance of the complainant's request for access to documents therefore constitutes an instance of maladministration.

(2) Principles of good administration require that the institutions deal with citizen's requests rapidly and in accordance with the relevant rules. In the present case, it appears that a substantial delay occurred when the Commission handled the complainant's confirmatory request and that the Commission thus failed to act in accordance with Article 8(2) of Regulation 1049/2001. This constitutes an instance of maladministration.

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

4.3 In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to Parliament was 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 was able to take action in order to assist the Ombudsman(19). The Annual Report for 1998 was submitted to and approved by Parliament.

4.4 The Ombudsman notes that the present case concerns the Commission's handling of a request for access to documents related to a specific call for tenders published by the JRC in January 2002. Furthermore, he considers that it is not apparent what kind of action Parliament could take in order to assist the Ombudsman and the complainant in the present case. In light of the above, the Ombudsman concludes that it is not appropriate to submit a special report to Parliament in the present case.

4.5 However, in addition to sending it to the Commission, the Ombudsman will also include a summary of the present decision in his Annual Report for 2006, which will be submitted to Parliament. The Ombudsman thus closes the case.

4.6 The President of the Commission and the Commissioner for Science and Research will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ S 22 of 31.1.2002.

(2) The complainant is an Italian lawyer.

(3) Article 2(7) of the Ombudsman's Statute is worded as follows: "When the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed definitively".

(4) OJ 2001 L 145, p. 43.

(5) OJ 1993 L 199, p. 54.

(6) OJ 1997 L 328, p. 1.

(7) Article 4(4) of Regulation 1049/2001.

(8) Case T-309/97 Bavarian Lager Company Ltd v Commission [1999] ECR II-3217, paragraph 39.

(9) See decisions of the European Ombudsman 412/2003/GG and 2403/2003/MF, available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(10) See Case T-14/18 Hautala v Council [1999] ECR II-2489 and Case T-204/99 Mattila v Council and Commission [2001] ECR II-2265.

(11) OJ 2001 L 145, p. 43.

(12) Case T-309/97 Bavarian Lager Company v Commission [1999] ECR II-3217 paragraph 39.

(13) See Case C-374/89 Commission v Kingdom of Belgium [1991] ECR I-367, paragraph 12-15, and Case C-512/99 Federal Republic of Germany v Commission [2003] ECR I-845, paragraph 63.

(14) Case T-14/98 Hautala v Council [1999] ECR II-2489, paragraph 67.

(15) Case T-2/03 Verein für Konsumenteninformation v Commission, judgment of 13 April 2005, not yet reported.

(16) OJ 2001 L 145, p. 43.

(17) The Ombudsman has taken a similar position in case 322/2003/IP. The text of this decision can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).

(18) The Ombudsman has taken a similar position in cases 1479/99/(OV)MM and 729/2000/OV concerning the failure to reply to a complaint made under Article 90(2) of the Staff Regulations. The texts of these decisions can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).

(19) Annual Report for 1998, pp. 27-28.