Strasbourg, 28 January 2005

Dear Mr M.,

On 8 June 2004, you made a complaint to the European Ombudsman concerning applications for access to documents that you had made to the European Commission. On 12 July 2004, you sent me an additional letter concerning your case.

On 19 July 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 4 October 2004. I forwarded it to you with an invitation to make observations, which you sent on 14 October 2004.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

On 22 March 2004, the complainant applied to the Commission for access to documents containing information on security measures adopted following the terrorist attack in Madrid on 11 March 2004. He made his application under 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(1). He received no reply from the Commission, and therefore made a confirmatory application on 5 May 2004. In his complaint to the Ombudsman, he stated that he had received no reply to this application either.

On 26 May 2004, the complainant applied for access to documents in connection with the Commission's discussions on harmonisation measures on the length of prison sentences. The complainant stated that he had received no reply to this application.

On 12 July 2004, the Ombudsman received an additional letter from the complainant. In his letter, the complainant stated that he had received a reply from the Commission, dated 17 June 2004, in reply to his application for access to documents of 22 March 2004. He stated that he nevertheless wished to maintain his complaint as he considered that there had been unjustified delays in the Commission's response to his application.

As regards the application of 26 May 2004, the complainant had made a confirmatory application on 16 June 2004. In his letter of 12 July 2004 to the Ombudsman, he stated that he had not yet received a reply to this application.

The complainant made the following allegations:

1. There were unjustified delays in the Commission's reply to his application of 22 March 2004.

2. The Commission had failed to reply to his application of 26 May 2004(2).

THE INQUIRY

The Commission's opinion

The complaint was sent to the Commission, which described its handling of the complainant's applications for documents of 22 March and 26 May 2004. It noted that it had sent a reply to the first application on 3 June 2004 and a reply to the second application on 14 July 2004. The Commission accepted that the relevant deadlines had not been met, and it apologised for this. It stated that the relevant services had experienced a heavy workload and temporary difficulties in managing applications. It added that, as a general policy, it had been decided to give more systematic feedback to citizens in all cases where the reply, be it on grounds of complexity or because of a sudden inflow of questions, may be at risk of not being sent within the deadlines for information replies. With regard to access to documents that are precisely identified, they would continue to benefit from the highest priority.

The complainant's observations

In his observations, the complainant stated that he fully appreciated the Commission's considerable workload, in particular with regard to requests from citizens. He stated that he naturally accepted the Commission's apologies.

The complainant remarked, however, that Article 7(3) of Regulation 1049/2001 contained a duty to inform the applicant of expected delays:

"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."

The complainant also noted that Article 7(2) made it obligatory to send the applicant an acknowledgement of receipt:

"An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. ..."

The complainant stated that in the light of the Commission's apologies, he considered his complaint settled. However, he asked the Ombudsman to draw the Commission's attention to the provisions quoted above. The complainant thanked the Ombudsman for his intervention.

THE DECISION

1 Introductory remarks

1.1 The complaint concerned two applications for access to documents, made to the Commission under 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(3). The first application had been made on 22 March 2004, the second on 26 May 2004.

1.2 In its opinion, the Commission remarked that the complaint, which was dated 8 June 2004, was made only eight working days after the request of 26 May 2004.

1.3 In so far as the Commission's above remark relates to the admissibility of the complaint in respect of the application made on 26 May 2004, the Ombudsman considers that this part of the complaint was indeed inadmissible at the time the complaint was made, as Regulation 1049/2001 regarding public access to documents provides for a fifteen days' deadline to respond to such requests as well as the possibility of making a confirmatory application. However, in the light of the complainant's letter of 12 July 2004 - according to which he had by then taken the relevant procedural steps - the Ombudsman decided that it was consistent with Regulation 1049/2001 to open an inquiry into this part of the complaint as well.

2 Alleged delays and failure to reply in the handling of access requests

2.1 The complainant alleged that there had been unjustified delays in the Commission's reply to his first application of 22 March 2004 for documents and that the Commission had failed to reply to his application of 26 May 2004.

2.2 In its opinion, the Commission apologised for the delays, and explained that these had been due to a heavy workload. It also stated that as a general policy, it had been decided to give more systematic feedback to citizens in all cases where the reply, be it on grounds of complexity, or because of a sudden inflow of questions, may be at risk of not being sent within the deadlines for information replies.

2.3 In his observations, the complainant stated that he accepted the Commission's apologies and considered his case to be settled. He thanked the Ombudsman for his intervention.

3 Conclusion

It appears from the complainant's observations that he considers his complaint to be settled. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

FURTHER REMARKS

The complainant asked the Ombudsman to draw the Commission's attention to Article 7 of Regulation 1049/2001 regarding public access to Parliament, Council and Commission documents, according to which the Commission is obliged to send acknowledgements of receipts and to inform applicants about expected delays in the handling of their applications for access.

The Ombudsman notes that the Commission is aware that these obligations were not respected in this case. The Ombudsman is confident that the Commission will make the necessary efforts to respect these obligations in the future.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) Official Journal 2001 L 145, p. 43.

(2) It should be noted that the letter by which the Commission was asked to give its opinion on the complaint mistakenly referred to "confirmatory application" instead of "application".

(3) Official Journal 2001 L 145, p. 43.