Strasbourg, 20 February 2007

Dear Mr S.,

On 22 July 2004, you submitted a complaint to the European Ombudsman concerning the European Commission's rejection of a confirmatory application for access to documents that you had made on 28 May 2004.

On 23 July 2004, you sent an e-mail asking whether I had received your two(1) complaints sent the day before. On 26 July 2004, my services sent an acknowledgment of receipt to you. In your further letter of 30 July 2004, you stated that, although on 22 July 2004 you had made two different complaints, it appeared that they had been registered under the same complaint reference. On 2 August 2004, my services informed you that, as you had correctly pointed out, your complaints had initially been registered under the same complaint reference. However, they had subsequently been registered as two separate complaints. On 2 August 2004, you thanked my services for the information.

On 23 September 2004, I forwarded the present complaint to the President of the Commission. The Commission sent the Italian translation of its opinion on 14 December 2004. I forwarded it to you on 16 December 2004, with an invitation to make observations, which you sent on 22 December 2004.

After having examined the Commission's opinion and your observations, I considered that it was necessary to conduct further inquiries. On 30 August 2005, I therefore wrote to the President of the Commission asking him to comment on your observations. The Commission sent the Italian translation of its reply on 3 January 2006. I forwarded it to you on 11 January 2006 with an invitation to make observations, which you sent to me on 25 January 2006.

On 11 April 2006, you sent a fax to the attention of the legal officer responsible for your case asking for a reply to your fax of 11 March 2006, by which you had requested information concerning the situation of the present case and also of your cases 1586/2005/IP, 3718/2005/IP and 454/2006. On 12 April 2006, you sent the same request to the "euro-ombudsman" mail box. On 27 April 2006, you sent a further message in which you asked for a reply to your fax of 11 March 2006.

Having checked in the Ombudsman's data-base, it appeared that the fax that, according to you, you had sent on 11 March 2006, had not been received by my office. In the morning of 4 May 2006, the legal officer responsible for your case tried to contact you in order to clarify this issue with you but she could not reach you. On the same date, you sent a further fax asking for a reply to your fax of 27 April 2006.

On 5 May 2006, the above-mentioned legal officer reached you by telephone. She explained that no fax dated 11 March 2006 appeared to have been received and that she had become aware of your message of 12 April only on 26 April 2006 due to the fact that she had been on leave. She also provided you with the information you had requested.

I am writing now to let you know 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

According to the complainant, the relevant facts of the complaint are as follows:

On 18 April 2004, the complainant asked the Commission to give him access to (i) all the correspondence (including annexes) which had been exchanged between the Commission and the Italian authorities with regard to infringement case 2003/4372; (ii) the minutes of the meeting which had been held between the representatives of the Commission and of the Italian authorities; and (iii) the internal documents concerning the relevant case, in particular the minutes of the meeting of the Commission of 30 March 2004.

Following the refusal of 11 May 2004 of the Directorate-General for the Internal Market ("DG MARKT") to give him access to some of the requested documents, the complainant submitted a confirmatory application to the Secretary-General of the Commission on 28 May 2004. On 12 July 2004, the Commission rejected the confirmatory application and informed the complainant accordingly. The main argument put forward by the institution to justify its refusal was the fact that the documents requested by the complainant were covered by the exception laid down in Article 4(2), third indent, 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(2) ("Regulation 1049/2001") according to which the institutions "[s]hall refuse access to a document where disclosure would undermine the protection of (…) the purpose of inspections, investigations and audits".

In his letter opening the present inquiry, the Ombudsman summarised the allegations and claim made by the complainant as follows:

The complainant alleged (i) that the Commission's decision to refuse access to the requested documents was vitiated by abuse of power and by misapplication of the exception under Article 4(2), third indent, of Regulation 1049/2001; (ii) that the Commission had failed to give sufficient reasons to justify its refusal; and (iii) that the exception invoked by the Commission conflicted with the general principle of giving the public the widest possible access to documents.

The complainant claimed that the Commission should reconsider its decision and grant him access to the requested documents.

THE INQUIRY

The Ombudsman's approach

The Ombudsman decided to open an inquiry into the first two allegations made by the complainant. With regard to the complainant's third allegation, the Ombudsman considered that it concerned the merits of Community legislation and not a case of possible maladministration. This aspect of the case was therefore closed on the basis of Article 2(2) of the Ombudsman's Statute and the complainant was advised that he could make a petition to the Committee on Petitions of the European Parliament.

The European Commission's opinion

In its opinion, the Commission made, in summary, the following points:

Background

The complainant had submitted a complaint to the institution against Italy, which had been registered under complaint reference 2003/4372. Infringement proceedings had then been launched by the Commission on this case. On 1 April 2004, the Commission had sent a letter of formal notice to the Italian authorities. The letter of formal notice had been followed by a reasoned opinion sent on 18 October 2004.

On 18 April 2004, the complainant made a request for access to (i) all the correspondence (including annexes) which had been exchanged between the Commission and the Italian authorities with regard to infringement case 2003/4372; (ii) the minutes of the meeting which had been held between the representatives of the Commission and of the Italian authorities; and (iii) the internal documents concerning the relevant case, in particular, the minutes of the meeting of the Commission of 30 March 2004.

On 11 May 2004, DG MARKT sent a copy of the relevant extracts from the Commission's minutes to the complainant who was also informed of the Internet address where he could retrieve the full text. As regards access to the other documents requested by the complainant, it was denied. In order to justify its refusal, the Commission emphasised that the exception laid down in Article 4(2), third indent, of Regulation 1049/2001 applied. DG MARKT argued that disclosure of the relevant documents at that stage of the procedure could jeopardise the dialogue between the Commission and the Italian authorities. DG MARKT further referred to the judgment of the Court of First Instance in Case T-191/99 Petrie(3), concerning a request for access to letters of formal notice and reasoned opinions which had been drawn up in connection with investigations and inspections carried out by the Commission. In this case, the Court stated that, as already established in Case T-105/95 WWF UK v. Commission, "Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure. This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State in question regarding the latter's voluntary compliance with the Treaty requirements may continue during the court proceedings and up to the delivery of the judgment of the Court of Justice. The preservation of that objective, namely an amicable resolution of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgment, justifies refusal of access to the letters of formal notice and reasoned opinions drawn up in connection with the Article 226 proceedings on the ground of protection of the public interest relating to inspections, investigations and court proceedings"(4).

On 28 May 2004, the complainant submitted a confirmatory application to the Secretary-General of the Commission, in which he argued that, since the minutes of the meetings of the Commission were public, the annexes to them should also be public. The complainant further submitted that the case-law referred to by DG MARKT was out of date and contradicted Article 1 of the Treaty on European Union and Regulation 1049/2001.

The Secretary-General replied to the complainant's confirmatory application on 5 July 2004. In his reply, he explained that the minutes of the Commission's meeting contained references to documents which had been taken into consideration by the members of the Commission during this meeting. The Secretary-General stated that these documents did not form an integral part of the minutes.

The Secretary-General further pointed out that the fact that the Commission's minutes were public and available on the Internet did not mean that all the documents referred to in the relevant minutes should be public. He explained that the complainant's request to have access to the three documents mentioned in the relevant minutes was dealt with as a new request. As regards the other documents, the Secretary-General confirmed the Commission's initial refusal on the same grounds.

Position of the Commission

The minutes of the Commission's meetings contained references to all documents which had been taken into consideration by its members during the meeting. Nevertheless, this did not mean that the relevant documents were part of the minutes. The minutes, which were public, had been published on the Internet, but access to the documents mentioned in the minutes had to be decided on a case-by-case basis. The decision to handle the request for the three documents mentioned in the minutes as an initial request for access to documents was justified by the need to respect the two-stage administrative procedure for handling requests for access to documents.

As regards the complainant's view that the exception laid down in Article 4(2), third indent, of Regulation 1049/2001 did not apply because infringement proceedings did not involve any inspections or investigations, the Commission pointed out that the relevant exception also covered infringement procedures, as explicitly confirmed by the Court of First Instance in Case T-191/99 Petrie: "[t]he Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure." Furthermore, at the time of the adoption of Regulation 1049/2001, the Commission had made its own declaration to that effect and that, in any case, when monitoring the application of Community law by Member States, the Commission investigates the alleged infringements. For any document related to ongoing infringement proceedings, a case-by-case study had to be carried out in order to establish whether it could be disclosed or not. On the basis of the Commission's internal guidelines on how to handle requests for access to documents related to infringement proceedings (SEC(2003)260/3), access was normally granted after the relevant case had been closed, and sometimes even before, depending on the result of the harm test. In this specific case, the Commission considered that the disclosure of the requested documents at that stage of the infringement proceedings would undermine the protection of the purpose of the investigations.

At that stage of the proceedings, disclosure of the requested documents could adversely affect the current discussions with the Italian authorities. With regard to the existence of an overriding public interest in disclosing the requested documents, the Commission considered that there was no such overriding interest in the present case.

With regard to the possibility to grant partial access, it appeared not to be possible in the present case in view of the nature of the documents requested, namely, because it was not possible to determine in advance which parts of the documents could be disclosed without prejudice to the ongoing investigation activity.

The Commission further dealt with the content of the letter sent by the complainant to the institution on 8 June 2004, in which he alleged that the Commission had wrongly omitted to post on its website the references to its decision to send a letter of formal notice to the Italian authorities in the framework of infringement case 2003/4372. In this regard, the Commission argued that, according to the relevant rules governing publicity on infringement decisions, references to decisions to send letters of formal notice to national authorities are not published on the Commission's website. Moreover, since it appeared that the complainant, in his capacity as complainant in case 2003/4372, had been informed on 1 April 2004 that the Commission had decided to send a letter of formal notice to the Italian authorities, no further action had been taken concerning the letter of 8 June 2004.

The complainant's observations

In his observations on the Commission's opinion, the complainant pointed out that the Commission's declarations were not among the sources of law and that a Regulation could not be interpreted or amended erga omnes on the basis of such declarations.

As regards the point made by the Commission, in its opinion, that when monitoring the application of Community law by Member States, it investigated the alleged infringements, the complainant stated that, as regards the inquiry carried out in case 2003/4372, it appeared that the Commission had acted properly vis-à-vis the Italian authorities and in accordance with the EC Treaty. However, he could not establish whether in other cases the institution had made proper use of its investigating powers since he had no information on this issue. The complainant considered that the Ombudsman should investigate the accuracy of the Commission's statement.

As regards the reference made by the Commission to Case T-191/99 Petrie, the complainant argued that this case-law was obsolete and that it should, in any case, be read in the light of the principle of transparency as laid down in Article 1 of the Treaty on European Union and of the meaning of Regulation 1049/2001 to which, according to the complainant, the Commission had wrongly referred when it had decided not to grant access to the documents requested by the complainant.

Furthermore, the complainant argued that proceedings for infringement of Community law carried out by the Commission against a Member State were based on the co-operation between the institution and the Member State. It was therefore not possible to assimilate this kind of procedure to those where an inspection or inquiry was carried out.

As regards the reasons given to him for its refusal, the complainant maintained his view that the Commission had failed to give concrete reasons for such a refusal. The complainant therefore maintained his complaint.

Further inquiries
Request for further information

After having examined the Commission's opinion and the complainant's observations, the Ombudsman considered that it was necessary to conduct further inquiries. On 30 August 2005, he therefore wrote to the Commission. In his letter, the Ombudsman referred to the Commission's opinion, in which the institution had stated that, in accordance with its own internal guidelines on how to handle requests for access to documents related to infringement proceedings (SEC(2003)260/3), access was normally granted after the relevant case had been closed, and sometimes even before, depending on the result of the harm test. The Commission had also stated that, for those documents related to ongoing infringement proceedings, a case-by-case study therefore had to be carried out in order to establish whether the relevant document could be disclosed or not. Since it was not clear for the Ombudsman whether such an individual examination had been carried out in the present case, he asked the Commission to comment on this point.

Furthermore, the Ombudsman stated that, in its opinion, the Commission had referred to the fact that the complainant's request for access to the documents mentioned in the minutes of the Commission's meeting of 30 March 2004 had been dealt with as a new request for access to documents. Regarding this aspect of the case, the Ombudsman asked the Commission to provide information about the outcome of the relevant procedure.

The Ombudsman finally referred to the statement made by the Commission in its opinion that partial access to the documents requested by the complainant could not be granted in view of their nature. The Ombudsman took the view that the Commission had given a rather general explanation of why it could not give partial access. He therefore asked it to provide more detailed information about the reasons for denying partial access.

In his complaint 2290/2004/IP, the complainant alleged, among other things, that the Commission had failed to reply to his letter of 8 June 2004 by which he had drawn the institution's attention to the fact that the decision of 30 March 2004 to send a letter of formal notice to the Italian authorities had not been published on the "infringements" site on the Internet. Although, in the opening letter, the Commission had not been asked to comment on this aspect of the case, the Ombudsman noted that, in its opinion, the Commission did so. The institution stated that, since the complainant had been informed on 1 April 2004 of the relevant actions taken by the institution, it considered that no further action was necessary with regard to the letter of 8 June 2004. Since he conducted further inquiries in the present case, the Ombudsman considered that this aspect of the case should be included in the present inquiry. He therefore asked the Commission to forward to him a copy of the letter sent to the complainant on 1 April 2004.

Request for a further opinion

On 17 April 2005, the complainant submitted a complaint (1586/2005/IP) to the Ombudsman concerning the Commission's rejection of the confirmatory application for access to documents that he had made on 1 February 2005 under Regulation 1049/2001. The complainant had asked the Commission to give him access a copy of the letter of formal notice and of the reasoned opinion sent by the Commission to the Italian authorities in the framework of the procedure related to the infringement procedure in case 2003/4372.

By letter dated 15 March 2005, the Secretary-General confirmed the decision not to grant the complainant access to the requested documents. The main argument put forward to justify its refusal was that the documents requested by the complainant were covered by the exception laid down in Article 4(2), third indent, of Regulation 1049/2001, according to which "the institutions shall refuse access to a document where disclosure would undermine the protection of (…) the purpose of inspections, investigations and audits". The Secretary-General also referred to the fact that the letter of formal notice sent by the Commission to the Italian authorities had already been the object of a previous request for access to documents made by the complainant on 18 April 2004 and of a confirmatory application submitted on 18 May 2004.

The complainant expressed the view that complaint 2290/2004/IP could be considered as part of complaint 1586/2005/IP. Since it appeared that it was necessary to conduct further inquiries in complaint 2290/2004/IP, to which the subject of complaint 1586/2005/IP appeared to be closely linked, the Ombudsman considered that it would therefore be appropriate to deal with the issues raised in both complaints in one and the same inquiry as suggested by the complainant himself. In his letter to the Commission of 30 August 2005, asking for further information on complaint 2290/2004/IP, the Ombudsman therefore asked the institution for an additional opinion on the issues raised in the complainant's letter of 17 April 2005.

The Commission's reply

In its reply, the Commission made the following points:

Concerning the Ombudsman's request to clarify whether an individual examination of the documents requested by the complainant had been carried out in the present case and to provide more detailed information about the reasons for denying partial access, the Commission confirmed that it had carried out a case-by-case assessment of the documents to which the complainant had requested access and that the possibility of granting partial access had also been taken into consideration.

Infringement case 2003/4372, concerning the alleged breach by the Italian authorities of the relevant rules on public procurement when awarding the project for a water treatment plant in Stintino (Italy), was discussed in a so-called "package meeting" between the Commission and the Italian authorities on 12 September 2003. Further information had been provided by the Italian authorities in a letter of 24 November 2003. On 1 April 2004, the Commission sent to them a letter of formal notice and, on the same day, informed the complainant accordingly. When the complainant made his initial request for access to documents on 18 April 2004, the letter of formal notice had therefore just been sent and a reply from the Italian authorities was expected within two months. Disclosing the letter of formal notice and the previous exchange of correspondence with the Italian authorities at that moment would have been prejudicial to the search for a possible settlement of the case. The complainant then submitted a confirmatory application on 28 May 2004. The Commission replied on 12 July 2004. At that time, the Commission had still not decided whether or not to bring the case before the Court of Justice and it was still awaiting the response of the Italian authorities to its letter of formal notice. Having re-examined the documents in the light of the procedural situation, the Commission confirmed that the documents requested by the complainant could not be disclosed at that stage. The possibility of granting partial access had been also taken into consideration. However, all the documents to which the complainant requested access entirely concerned the interpretation of legal concepts related to the specific case and did not contain any parts to which the exception of Article 4(2), third indent, did not apply at the time of handling the complainant's confirmatory application.

On 20 January 2005, the complainant made a new request for access to the letter of formal notice and to the reasoned opinion sent by the Commission to the Italian authorities on 1 April 2004 and on 18 October 2004 respectively. The case was ongoing at that time and had reached a critical stage, namely, the question of whether or not it could still be solved without referring it to the Court of Justice. The Commission therefore decided, on 28 January 2005, and, after a confirmatory application, on 15 March 2005, that the reasons for not granting access to the letter of formal notice already given to the complainant, i.e., that the disclosure of this document could have been prejudicial to the search for a possible settlement of the case, were still valid and that the same reasons also apply to the reasoned opinion.

Concerning the possibility to grant partial access, the Commission considered that this was not possible, since there were no parts of these documents that were not covered by the exception of Article 4(2), third indent, of Regulation 1049/2001.

On 16 March 2005, the Commission decided to start legal proceedings before the Court of Justice concerning case 2003/4372 and, on the following day, the complainant was informed accordingly. Even during the Court proceedings, the possibility of reaching an agreement with the Italian authorities could not be excluded and the disclosure of the documents requested by the complainant could have jeopardised any such attempt to settle the matter.

Regarding the handling of the complainant's request for access to the three documents(5) which were referred to in the Commission's minutes of its meeting of 30 April 2004 under the heading "Monitoring the application of Community law: infringements", the institution stated that, in his letter of 12 July 2004 containing the Commission's decision on the complainant's confirmatory application, the Secretary-General emphasised that these documents were not simply annexes to the minutes and that they were not automatically accessible to the public. The request for access to them should have therefore been assessed as a new request. Unfortunately, the complainant never received a reply to his request for access concerning these documents and he did not submit a confirmatory application either. Even if the failure to reply to a request for access to documents was to be considered as a negative reply, pursuant to Regulation 1049/2001, and therefore entitled the applicant to appeal, the Commission regretted and apologised for its failure, since good administrative practice requires that requests be given an explicit reply.

The Commission had therefore handled this part of the present complaint as if it were a confirmatory application and had reached the following conclusions:

As regards the note submitted by the Legal Service, this concerned an infringement case other than the one in which the complainant was interested. The document examined the legal basis for launching infringement proceedings against a Member State and the relevant case was still pending. The Commission explained that communication of the Legal Service's opinion would have disclosed its position concerning the decision whether or not to send a letter of formal notice. Furthermore, such disclosure would have affected the Legal Service's freedom to express opinions and provide legal advice to the Commission and would have also affected the institution's room for manoeuvre in taking the final decision. On this basis, the Commission took the view that the exception laid down in Article 4(2), second indent, of Regulation 1049/2001, regarding legal advice, applied to that document in its entirety and that there was no overriding public interest justifying its disclosure.

As regards the minutes of the meeting of heads of cabinets, this document reflected the comments and the opinions of the participants about the cases that had been discussed during the meeting. Disclosure of the minutes would have revealed internal deliberations in the preparation of the Commission's decision on infringement cases and this would have seriously affected the Commission's decision-making process, since it would have undermined the collegial way in which the Commission took the relevant decisions. On this basis, the Commission took the view that the exception laid down in Article 4(3), second indent(6), of Regulation 1049/2001 applied to that document in its entirety and that there was no overriding public interest justifying its disclosure. Furthermore, the Commission stated that infringement case 2003/4372 had not been the object of discussion at that meeting and it had therefore not been mentioned in the minutes.

As regards the list of infringement cases and the relevant decisions proposed by the heads of cabinets, this contained over 1400 cases. The minutes of the Commission's meeting, which were publicly accessible on the Internet, mentioned the adoption of the proposed decisions. Concerning case 2003/4372, the complainant had been duly informed of the Commission's decision to send a letter of formal notice to the Italian authorities, in accordance with the Commission's Communication on relations with the complainant in the respect of infringement of Community law(7). The Commission considered that the complainant had received the information he was looking for since it appeared that he was interested in one specific case and not in the complete list of proposed decisions about infringement cases other than case 2003/4372. The Commission added that, in any case, the disclosure of the full list of proposed decisions regarding pending infringement cases would have affected the purpose of ongoing investigations, since it would have interfered with current discussions with the Member States and would have reduced the chances of reaching an agreement on the relevant cases without bringing them before the Court of Justice. Furthermore, the institution considered that, in accordance with the above-mentioned Communication, the complainants are informed of decisions taken with respect to infringement cases in which they have an interest.

The Commission finally emphasised that, as regards the request for access to the three above-mentioned documents, communication of the decisions taken with respect to the infringement cases constituted its final decision on the request. The complainant has the possibility to complain about this decision either by submitting a new complaint to the Ombudsman or by bringing proceedings before the Court of First Instance under the conditions laid down in Article 230 of the EC Treaty. In that respect, the date of notification of the Commission's decision to the complainant was the date of the communication, by the Ombudsman, of the Commission's reply to the complainant.

Concerning the complainant's letter of 8 June 2004, the Commission stated that, as it had said in its opinion, decisions to send a letter of formal notice are generally not posted on the Commission's website. Once the Member State concerned has replied to the letter of formal notice, either the case is closed, or the Commission might decide to issue a reasoned opinion to the Member State. The decisions to send a reasoned opinion are generally posted on the Commission's website, as in the case of complaint 2003/4372. There had therefore been no omission on the part of the Commission and, as a result, no further action had been taken with respect to the complainant's letter of 8 June 2004. Nevertheless, the Commission recognised that it would have been appropriate to have informed the complainant accordingly in a reply to his letter of 8 June 2004.

The complainant's observations

In his observations, the complainant pointed out that, contrary to what had been stated by the Commission, references to letters of formal notice sent by the institution to national authorities in the framework of infringement cases are often posted on the Commission's website. The complainant further emphasised that the whole procedure related to his complaint 2003/4372 had often been characterised by tense relations with the institution. The letter of 8 June 2004 should therefore have been understood in that context and the formal aspect of the failure to reply represented a minor aspect in comparison with the substance of his grievances.

As regards the other aspect of his case, related to the Commission's refusal to grant him access to the documents requested, the complainant maintained his complaint. Concerning the Commission's refusal to grant him access to the three documents which were referred to in the Commission's minutes of its meeting of 30 April 2004, the complainant considered the reasons given by the Commission to justify its position to be irrelevant, even inexistent.

THE DECISION

1 Preliminary remarks

1.1 In its opinion on the complaint, the Commission stated that, when monitoring the application of Community law by Member States, it investigates alleged infringements.

1.2 The Ombudsman notes that in his observations on the Commission's opinion, the complainant stated, that, as regards the inquiry carried out in case 2003/4372, it appeared that the Commission had acted properly vis-à-vis the Italian authorities and in accordance with the EC Treaty. However, he could not establish that, in other cases, the institution had made use of its investigating powers, since he had no information on this issue. The complainant therefore suggested that the Ombudsman should investigate the accuracy of the Commission's statement made in its opinion that, when monitoring the application of Community law by Member States, it investigates alleged infringements.

1.3 It appears that this point has first been raised in the complainant's observations.

Article 195(1) of the EC Treaty provides that the Ombudsman, in accordance with his duties, shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him.

The Ombudsman considers that, on the basis of the rather general nature of the allegation and given the lack of any supporting evidence, there are insufficient grounds to open an inquiry into this aspect of the case.

1.4 In appears that the complainant had submitted to the Commission a first request for access to documents on 18 April 2004. On 11 May 2004, the institution granted access to some of the documents requested, namely the extracts from the Commission's minutes of its meeting of 30 March 2004. The aspect of the case related to this request for access to documents will be dealt in point 2 below.

1.5 However, it emerged from the complaint that on 28 May 2004, the complainant submitted a confirmatory application to the Secretary-General of the Commission in which he argued that, since the minutes of the meetings of the Commission were public, the annexes to them should also be public. The complainant therefore asked for access to the three documents referred to in the relevant minutes.

In his reply of 5 July 2004, the Secretary-General explained that the complainant's request to have access to the three documents(8) mentioned in the relevant minutes was considered to be a new request.

1.6 In his request for further information submitted to the Commission on 30 August 2005, the Ombudsman asked the Commission to provide information about the outcome of the relevant procedure.

1.7 In its reply, the Commission explained the reasons why the three documents concerned could not, in its view, be disclosed to the complainant:

As regards the first document, i.e., a note submitted by the Legal Service, this examined the legal basis for launching infringement proceedings against a Member State and concerned a case other than one in which the complainant was interested. The Commission explained that communication of the Legal Service's opinion, while the case in question was still pending, would have disclosed the position of the Legal Service concerning the decision whether or not to send a letter of formal notice. Furthermore, such disclosure would have affected the Legal Service's freedom to express opinions and provide legal advice to the Commission and would also have adversely affected the institution's room for manoeuvre in taking the final decision. On this basis, the Commission took the view that the exception laid down in Article 4(2), second indent, of Regulation 1049/2001, regarding legal advice, applied to that document in its entirety and that there was no overriding public interest justifying its disclosure.

As regards the second document, which concerned the minutes of a special meeting of heads of cabinet about the periodic review of infringement cases, this reflected the comments and the opinions of the participants about the cases that had been discussed during the meeting. Disclosure of the minutes would have revealed internal deliberations in the preparation of the Commission's decision on infringement cases and would have seriously affected the Commission's decision-making process, since it would have undermined the collegial way in which the Commission took the relevant decisions. On this basis, the Commission took the view that the exception laid down in Article 4(3), second indent(9), of Regulation 1049/2001 applied to that document in its entirety and that there was no overriding public interest justifying its disclosure. Furthermore, the Commission stated that infringement case 2003/4372 had not been the object of discussion at that meeting and had therefore not been mentioned in the minutes.

As regards the third document, which consisted of the list of infringement cases and the relevant decisions proposed by the heads of cabinets, this contained over 1400 cases. The minutes of the Commission's meeting, which were publicly accessible on the Internet, mentioned the adoption of the proposed decisions. Concerning case 2003/4372, the complainant had been duly informed of the Commission's decision to send a letter of formal notice to the Italian authorities. The Commission considered that the complainant had received the information he was looking for since it appeared that he was interested in one specific case and not in the complete list of proposed decisions about infringement cases other than case 2003/4372. The Commission added that, in any case, disclosure of the full list of proposed decisions regarding pending infringement cases would have affected the purpose of ongoing investigations, since it would have interfered with current discussions with the Member States and would have reduced the chances of reaching an agreement on the relevant cases without bringing them before the Court of Justice.

1.8 The Commission stressed that the complainant had unfortunately never received a reply to his request for access concerning the relevant documents and that he did not submit a confirmatory application either. Even if, pursuant to Regulation 1049/2001, the failure to reply to a request for access to documents was to be considered as a negative reply and therefore entitled the applicant to appeal, the Commission regretted and apologised for its failure, since good administrative practice requires that requests be given an explicit reply.

The Commission had therefore handled this part of the present complaint as if it were a confirmatory application and emphasised that the communication of the decisions taken with respect to the infringement cases constituted its final decision as regards the request for access to the three above-mentioned documents. The institution further added that the complainant has the possibility to complain about this decision either by submitting a new complaint to the Ombudsman or by bringing proceedings before the Court of First Instance under the conditions laid down in Article 230 of the EC Treaty. In that respect, the date of notification of the Commission's decision to the complainant was the date of the communication, by the Ombudsman, of the Commission's reply to the complainant.

1.9 The Ombudsman notes that it was only in its reply to his request for further information that the Commission set out its position as regards the complainant's request for access to the three documents mentioned in the minutes of the Commission's meeting of 30 March 2004. In these circumstances, the Ombudsman considers the Commission's proposal that this reply should be regarded as its final decision on the request for access to these documents to be both appropriate and constructive. It would indeed not make sense to require the complainant to make a further (confirmatory) application for access in the present case. In its reply to the Ombudsman's request for further inquiries, the Commission also suggested that the complainant was free to submit a complaint to the Ombudsman against this decision. The Commission's reply was forwarded to the complainant on 11 January 2006. The Ombudsman notes, however, that no new complaint was received from the complainant against the decision to deny access to the three documents mentioned in the minutes of the Commission's meeting of 30 March 2004. In light of the above, the Ombudsman considers that there are no grounds for further inquiries as regards this aspect of the case. The complainant remains however free to submit a new complaint to the Ombudsman concerning the relevant decision, if he so wishes.

1.10 On 20 January 2005, the complainant made a third request for access to the letter of formal notice and to the reasoned opinion sent by the Commission to the Italian authorities in relation to case 2003/4372. This aspect of the case is dealt in point 3 below.

2 Alleged unlawful decision by the Commission on the complainant's request for access to documents submitted in April 2004

2.1 On 18 April 2004, the complainant made a request to the Commission for access to (i) all the correspondence (including annexes) which had been exchanged between the Commission and the Italian authorities with regard to infringement case 2003/4372; (ii) the minutes of the meeting which had been held between the representatives of the Commission and of the Italian authorities; and (iii) the internal documents concerning the relevant case, in particular, the minutes of the meeting of the Commission of 30 March 2004.

Following the Commission's decision not to grant him access to some of the documents requested, the complainant submitted a confirmatory application on 28 May 2004. On 12 July 2004, the Commission rejected the confirmatory application on the grounds that the relevant documents were covered by the exception laid down in Article 4(2), third indent, 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(10) ("Regulation 1049/2001"), according to which the institution "[s]hall refuse access to a document where disclosure would undermine the protection of (…) the purpose of inspections, investigations and audits".

In his complaint to the Ombudsman, the complainant alleged that the Commission's decision to refuse access to the requested documents was vitiated by an abuse of power and by misapplication of the exception under Article 4(2), third indent, of Regulation 1049/2001.

2.2 In its opinion, the Commission basically explained that, since the documents requested by the complainant concerned the infringement proceedings in case 2003/4372, which were ongoing, their disclosure could have adversely affected the discussions with the Italian authorities on this issue.

As regards the complainant's view that the exception laid down in Article 4(2), third indent, of Regulation 1049/2001 did not apply because infringement proceedings did not involve any inspections or investigations, the Commission pointed out that, as explicitly confirmed by the Court of First Instance in Case T-191/99 Petrie, the relevant exception also covered infringement procedures.

The Commission finally took the view that, at that stage of the proceedings, disclosure of the requested documents would have adversely affected the ongoing discussions with the Italian authorities. As regards the possibility of granting partial access to the requested documents, the institution considered that it could not be granted. The Commission also submitted that there was no evidence of an overriding public interest in disclosing the requested documents.

2.3 In his observations, the complainant argued that the case-law mentioned by the Commission was obsolete and that it should, in any case, have been read in the light of the principle of transparency as laid down in Article 1 of the Treaty on European Union. He further considered that the Commission had been wrong to refer to Article 4(2), third indent, of Regulation 1049/2001 when it had decided not to grant access to the documents requested by him.

2.4 In his request for further information, the Ombudsman considered that, (a) in accordance with the Commission's internal guidelines on how to handle requests for access to documents related to infringement proceedings (SEC(2003)260/3), access was normally granted after the relevant case had been closed, and sometimes even before, depending on the result of the harm test, and (b) for those documents related to ongoing infringement proceedings, a case-by-case study had to be carried out in order to establish whether the relevant document could be disclosed or not. Since it was not clear whether such an individual examination had been carried out in the present case by the Commission, the Ombudsman asked the institution to comment on this point.

Regarding the Commission's position that partial access to the documents requested by the complainant could not be granted in view of their nature, the Ombudsman asked the institution to provide more detailed information concerning the reasons for denying partial access.

2.5 In its reply, the Commission confirmed that it had carried out a case-by-case assessment of the documents to which the complainant had requested access and that the possibility of granting partial access had also been taken into consideration.

The Commission submitted that infringement case 2003/4372 was discussed in a so-called "package meeting" between the Commission and the Italian authorities on 12 September 2003. Further information had been provided by the Italian authorities in a letter of 24 November 2003. On 1 April 2004, the Commission sent them a letter of formal notice and, on the same day, informed the complainant accordingly.

It therefore appeared that when, on 18 April 2004, the complainant made his initial request for access to documents related to infringement case 2003/4372, a letter of formal notice had just been sent to the Italian authorities and a reply from them was expected within two months. Disclosing the letter of formal notice and the previous exchange of correspondence with the Italian authorities at that moment would have been prejudicial to the search for a possible settlement of the case. As regards the fact that the Commission had confirmed its refusal to give access to the requested documents after the complainant's confirmatory application had been submitted on 28 May 2004, this was due to the fact that, at that time, the Commission had still not decided whether or not to bring the case before the Court of Justice and was still awaiting the response of the Italian authorities to its letter of formal notice. The possibility of granting partial access had been also taken into consideration. However, all the documents to which the complainant requested access entirely concerned the interpretation of legal concepts related to the specific case and did not contain any parts to which the exception of Article 4(2), third indent, did not apply at the time of handling the complainant's confirmatory application.

2.6 The Commission further added that, on 16 March 2005, it decided to start legal proceedings before the Court of Justice concerning case 2003/4372. Even during the Court proceedings, the possibility of reaching an agreement with the Italian authorities could not be excluded and the disclosure of the documents requested by the complainant could have jeopardised any such attempt to settle the matter.

2.7 In his observations, the complainant basically maintained his complaint.

2.8 The Ombudsman notes that on 11 May 2004, the Commission granted access to some of the documents requested by the complainant on 18 April 2004, namely the extracts from the Commission's minutes of its meeting of 30 March 2004. The present inquiry is therefore aimed at verifying whether there has been maladministration by the Commission when refusing to give access to the other documents requested by the complainant (see point 2.1).

2.9 Article 1, second paragraph, of the Treaty on European Union provides that "[t]his Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible (…)". Article 1 (a) of Regulation 1049/2001 provides that the purpose of the Regulation is to ensure "the widest possible access to documents".

However, Regulation 1049/2001 contains certain exceptions.

One of these exceptions is foreseen by Article 4(2), third indent, according to which "[t]he institution 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."

2.10 However, the fact that a document for which access had been requested concerns investigations linked to ongoing infringement proceedings carried out by the Commission against a Member State cannot, in itself, justify the application of the exception invoked by the institution. According to the case-law of the Community courts, any exception to the general right of access to documents held by Community institutions must be applied strictly, so as not to frustrate the application of the general principle of giving the public the widest possible access to these documents(11). The Ombudsman has therefore to determine if, in the present case, the Commission made a mistake in its assessment that disclosure of the documents requested by the complainant could undermine the protection of the purpose of investigations and that there was no overriding public interest in disclosure.

2.11 The Ombudsman has already taken the position that the exception based on inspections and investigations should only be applied when the requested documents have been drawn up during the relevant investigative activity(12).

2.12 In the present case, the Ombudsman notes that the documents requested by the complainant on 18 April 2004 were drafted during an investigation related to infringement proceedings which, at the time when the complainant made his request for access to documents on 18 April 2004, were still at the pre-trial stage, since the Commission had not yet decided whether it should submit the case to the Court of Justice(13).

2.13 The Ombudsman notes that the complainant has argued that proceedings for infringements of Community law carried out by the Commission against Member States are based on co-operation between the institution and the Member State and that it is therefore not possible to assimilate this kind of procedure to those in which an inspection or inquiry is carried out.

The Community courts have, however, constantly referred to the activity carried out in the course of infringement proceedings under Article 226 of the EC Treaty as an activity of inspection and investigation. For example, in its judgement in Case T-105/95 WWF UK(14), the Court of First Instance recognised as justified the refusal to grant access to documents related to "investigations which may lead to an infringement procedure", and in Case T-191/99 Petrie, to which the Commission has referred, the Court held that "[t]he Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure." The Ombudsman therefore considers that the Commission's interpretation according to which the activity carried out during infringement proceedings does concern an investigative activity is in accordance with the established case-law of the Community courts.

The Ombudsman is aware of the fact that the above-mentioned case-law was based on the rules established by Commission Decision 94/90 of 8 February 1994 on public access to Commission documents(15) whereas the present case concerns Regulation 1049/2001, which entered into force on 3 December 2001.

However, Commission Decision 94/90 envisages that institutions "[w]ill refuse access when disclosure could undermine the protection of inspections and investigations". On the basis of Article 4(2), third indent, of Regulation 1049/2001, the institution "[s]hall 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".

It thus emerges that the relevant exception foreseen by Regulation 1049/2001 covers, in substance, the same category of documents as Commission Decision 94/90.

The Ombudsman therefore considers that, contrary to the point of view taken by the complainant, the case-law on which the Commission based its decision not to grant access to the requested documents cannot be considered as obsolete and that it continues to be relevant even after Regulation 1049/2001 entered into force.

2.14 The Ombudsman also considers that, as he 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(16). In the present case, the Ombudsman considers that the complainant has not established that there was an overriding public interest for the disclosure of the requested documents.

2.15 As regards the possibility of giving partial access to the relevant documents, as foreseen by Article 4(6) of Regulation 1049/2001, it appears that, initially in its reply to the complainant's confirmatory application and, more specifically, in its reply to the Ombudsman's request for further information, the Commission explained why, in its opinion, no partial access to the documents requested could be granted. The main reason invoked by the Commission was that, in view of the nature of the relevant documents, it was not possible to determine in advance which parts of the documents could be disclosed without prejudice to the ongoing investigative activity, since they entirely concerned the interpretation of legal concepts related to the specific case 2003/4372.

2.16 In view of the above, the Ombudsman takes the view that the Commission's position concerning the request for access to documents made by the complainant in 2004 appears to be reasonable and in conformity with Regulation 1049/2001 and that its position does not appear to be vitiated by an abuse of power.

2.17 The Ombudsman therefore considers that there was no maladministration in so far as this aspect of the case is concerned. The Ombudsman recalls, however, that the Court of Justice is the highest authority on the interpretation of Community law.

3 The complainant's request for access to documents submitted in January 2005

3.1 On 20 January 2005, the complainant asked the Commission to granting him access to a copy of the letter of formal notice (already covered by the request for access made by the complainant in 2004) and to the reasoned opinion sent by the Commission to the Italian authorities in the framework of the procedure relating to the infringement procedure in case 2003/4372. In his complaint to the Ombudsman, the complainant complained against the Commission's decision not to grant him the requested documents.

3.2 In its opinion, the Commission emphasised that, when the complainant submitted his request for access to the above-mentioned documents, the relevant case was ongoing and had reached a critical stage, namely, the question of whether or not it could still be solved without referring it to the Court of Justice. The Commission therefore decided on 28 January 2005, and, after a confirmatory application, on 15 March 2005, that the reasons for not granting access to the letter of formal notice already given to the complainant, i.e., that the disclosure of this document could have been prejudicial to the search for a possible settlement of the case, were still valid and that they applied also to the reasoned opinion sent to the Italian authorities. Concerning the possibility of granting partial access, the Commission considered that this was not possible, since there were no parts of these documents that were not covered by the exception of Article 4(2), third indent, of Regulation 1049/2001.

3.3 The Commission further added that, on 16 March 2005, it decided to start legal proceedings before the Court of Justice concerning case 2003/4372. Even during the Court proceedings, the possibility of reaching an agreement with the Italian authorities could not be excluded and the disclosure of the documents requested by the complainant could have jeopardised any such attempt to settle the matter.

3.4 In light of the above explanation given by the Commission to justify its decision not to grant to the complainant access to the relevant documents on the basis of the exception foreseen in Article 4(2), third indent, of Regulation 1049/2001, the Ombudsman takes the view that the Commission's position appears to be reasonable and in accordance with the case-law of Community courts. The Ombudsman further considers that the reasoning set out in points 2.9 to 2.14 of this decision applies also to the reasoned opinion sent by the Commission to the Italian authorities that was the object of the complainant's request of 20 January 2005.

3.5 It therefore appears that there has been no maladministration by the Commission concerning this aspect of the case.

4 The alleged failure by the Commission to reason its decision

4.1 In his complaint, the complainant alleged that the Commission had failed to give sufficient reasons to justify its refusal to grant access to the documents that he had initially requested on 18 April 2004 and then on 28 May 2004 through a confirmatory request.

4.2 In its opinion, the Commission argued that, in his reply of 5 July 2004 to the complainant's confirmatory application of 28 May 2004, the Secretary-General had justified the refusal on the grounds that the documents requested by the complainant were covered by the exception laid down in Article 4(2), third indent, of Regulation 1049/2001.

4.3 In his observations, the complainant maintained his original allegation. He took the view that the Commission had refused to grant him access to the requested documents without giving concrete reasons for its decision.

4.4 In its reply to the Ombudsman's request for further information, the Commission further explained that disclosure of the letter of formal notice and of the previous exchange of correspondence with the Italian authorities in the framework of infringement procedure 2003/4372 would have been prejudicial to the search for a possible settlement of the case.

Regarding the list of infringement cases and of the relevant decisions proposed by the heads of cabinets which were mentioned in the minutes of the Commission's meeting, this contained over 1400 cases. These minutes were publicly accessible in the Internet. Concerning case 2003/4372, the complainant had been duly informed of the Commission's decision to send a letter of formal notice to the Italian authorities, in accordance with the Commission's Communication on relations with the complainant in the respect of infringement of Community law. The Commission further considered that disclosure of the full list of proposed decisions regarding pending infringement cases would have affected the purpose of ongoing investigations, since it would have interfered with current discussions with the Member States and would have reduced the chances of reaching an agreement on the relevant cases without bringing them before the Court of Justice. Furthermore, the institution considered that, in accordance with the above-mentioned Communication, the complainants are informed of decisions taken with respect to infringement cases in which they have an interest.

4.5 Concerning the possibility of granting partial access, the Commission stressed that that it had carried out a case-by-case assessment of the documents to which the complainant had requested access and that the possibility of granting partial access had also been taken into consideration. However, it appeared not to be possible to grant such a partial access in the present case, in view of the nature of the documents requested, namely, because it was not possible to determine in advance which parts of the documents could be disclosed without prejudice to the ongoing investigation activity.

4.6 In his further observations, the complainant considered that the reasons given by the Commission to justify its position were irrelevant, even inexistent.

4.7 As constantly held by the Community courts, the statement of reasons required by Article 253 of the EC Treaty must be appropriate to the act at issue and must disclose, in a clear and unequivocal fashion, the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review.

4.8 The Ombudsman further notes that, in its judgment of 26 April 2005 in Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council(17), the Court of First Instance held that, in the case of a request for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation 1049/2001.

It is for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the sphere covered by the exception relied on and, second, whether the need for protection relating to that exception is genuine.

The brevity of the statement of reasons made by the institution concerned could, according to the Court, be acceptable in the light of the fact that mentioning additional information, in particular making reference to the content of the documents concerned, could negate the purpose of the exceptions relied on.

4.9 In the present case, the Ombudsman considers that, first, in the correspondence with the complainant and then in the course of the inquiries carried out on the present complaint, the Commission has clearly explained that the disclosure of the requested documents could in its view have jeopardised the dialogue between the Commission and the Italian authorities in the framework of the ongoing infringement proceedings and has given reasons for not granting partial access to the relevant documents.

4.10 In light of the above, the Ombudsman takes the view that the Commission has reasoned its decision not to grant access to the documents requested by the complainant and has provided reasons which appear to be sufficient to allow the complainant to understand it.

The Ombudsman therefore considers that there was no maladministration in so far as this aspect of the case is concerned.

5 The alleged failure by the Commission to reply to the complainant's letter of 8 June 2004

5.1 In his complaint to the Ombudsman, in addition to the allegations dealt with in points 2 and 3 of the present decision, the complainant also alleged that the Commission had failed to reply to his letter of 8 June 2004 by which he had pointed out that the institution had omitted to publish on its website the reference to its decision of 30 March 2004 to send a letter of formal notice to the Italian authorities. Although in the Ombudsman's opening letter the Commission had not been asked to comment on this aspect of the case, in its opinion the latter stated that, according to the relevant rules governing publicity on infringement decisions, references to decisions to send letters of formal notice to national authorities are generally not published on the Commission's website. Furthermore, since the complainant had been informed on 1 April 2004 of the relevant actions taken by the institution in the framework of the infringement case 2003/4372, it considered that no further action was necessary with regard to the letter of 8 June 2004.

The Ombudsman considered that this aspect of the case should have been included in the present inquiry and in his request for further information, sent to the Commission on 30 August 2005, he asked the institution to forward to him a copy of the letter sent to the complainant on 1 April 2004.

5.2 A copy of the relevant document was forwarded by the Commission in its reply to the Ombudsman of 3 January 2006. Having analysed the content of the message, the Ombudsman notes that, on 1 April 2004, the complainant was indeed informed that, at its meeting of 30 March 2004, the Commission had decided to send a letter of formal notice to the Italian authorities in accordance with the Article 226 procedure.

5.3 The Ombudsman notes that, in replying to his request for further information, the Commission stated that decisions to send a letter of formal notice are generally not posted on the Commission's website, contrary to what happens for decisions to send a reasoned opinion to the Member State concerned. Nevertheless, the Commission recognised that it would have been appropriate to inform the complainant accordingly in a reply to his letter of 8 June 2004.

5.4 In his observations, the complainant pointed out that, contrary to what had been stated by the Commission, references to letters of formal notice sent by the institution to national authorities in the framework of infringement cases are often posted on the Commission's website. The complainant further emphasised that the whole procedure related to his complaint 2003/4372 had often been characterised by tense relations with the institution. The letter of 8 June 2004 should therefore have been understood in that context and the formal aspect of the failure to reply represents a minor aspect in comparison with the substance of his grievances.

5.5 The Ombudsman notes that the Commission justified its failure to reply to the complainant's letter of 8 June 2004 by the fact that (i) there had been no omission on its part concerning the alleged failure to post the reference of its decision to send a letter of formal notice to the Italian authorities on its website and that (ii) the complainant had been already informed, on 1 April 2004, of this decision.

In this regard, the Ombudsman would like to note that, having checked the Commission's website, it appears that, as indicated by the complainant, references to letters of formal notice sent by the Commission to the Member State concerned are sometimes published on it. On the other hand, it does not appear that the Commission is obliged to make such postings. In accordance with Article 12 of the Commission Communication on relations with the complainant in the respect of infringement of Community law(18), "Commission decisions on infringement cases are published within one week of their adoption on the Secretariat-General's Internet site (...). Decisions to deliver a reasoned opinion to a Member State or to refer the case to the Court of Justice will also be published by means of a press release, unless the Commission decides otherwise". It therefore appears that no obligation is foreseen to make public the decision to send a letter of formal notice in the context of an infringement case.

5.6 Even if it therefore appears that the fact that the Commission's decision not to publish the reference to its decision to send a letter of formal notice to the Italian authorities in the context of complaint 2003/4372 cannot be considered as an omission to an obligation on its part, the Ombudsman considers that the Commission has not established that a written reply to the complainant's letter of 8 June 2004 was unnecessary. Furthermore, he considers that the fact that the complainant had been informed on 1 April 2004 that the Commission had decided to send a letter of formal notice to the Italian authorities cannot justify the failure to reply to the relevant letter. The Commission's failure to reply to the complainant's letter therefore constituted a case of maladministration.

However, in view of the fact that the Commission has recognised that it would have been appropriate to reply to the complainant's letter and that, in his observations, the complainant stated that the formal aspect of the failure to reply represented a minor aspect in comparison with the substance of his grievance, the Ombudsman does not consider it necessary to make a critical remark concerning this aspect of the case.

6 The complainant's claim

6.1 In his complaint, the complainant claimed that the Commission should reconsider its decision and give him access to the requested documents.

6.2 In view of the conclusion reached in points 2.17, 3.5 and 4.10 above, it appears that the complainant's claim must fail.

7 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission concerning the complainant's allegations dealt with in points 2, 3 and 4 of this decision and concerning the complainant's claim that the Commission's should reconsider its decision. Concerning the complainant's allegation dealt with in point 5 of this decision, it appears that the alleged failure to reply by the Commission constituted a case of maladministration. However, for the reasons set out in point 5.6 above, the Ombudsman does not consider it necessary to make a critical remark concerning this aspect of the case. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The complainant's letter sent on 22 July 2004 had been initially registered as one complaint, under complaint reference 2290/2004/IP. However, on the basis of the complainant's letter of 23 July 2004, a second complaint was registered under complaint reference 2391/2004/IP.

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

(3) Case T-191/99 Petrie and Others v Commission [2001] ECR II-3677.

(4) Case T-191/99 Petrie and Others v Commission [2001] ECR II-3677, paragraph 68.

(5) The three documents in question were:

1. A note submitted by the Legal Service concerning one specific infringement case (not being, according to the Commission, the case in which the complainant was interested), SEC(2004) 381;
2. The record of a special meeting of heads of cabinet concerning the periodical review of the alleged infringement cases, SEC(2004) 393;
3. The list of the alleged infringement procedures with the proposed decisions, SEC(2004) 396.

(6) "Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure".

(7) COM(2002) 141.

(8) See footnote 5.

(9) "Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure".

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

(11) Case C-41/00 P Interporc v Commission [2003] ECR I-2125, paragraph 48; Case T-84/03 Turco v Council [2004] ECR II-4061, paragraph 71.

(12) See Ombudsman's decisions on complaint 271/2000/(IJH)JMA and on complaint 790/2003/GG (http://www.ombudsman.europa.eu).

(13) In its reply to the Ombudsman's request for further information, the Commission informed him that on 16 March 2005, it had decided to start legal proceedings before the Court of Justice concerning case 2003/4372.

(14) Case T-105/95 WWF UK v Commission [1997] ECR II-313, paragraph 63.

(15) OJ 1994 L 46, p. 58.

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

(17) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgment of 26 April 2005, not yet reported, paragraphs 62-63. These joined cases are under appeal (C-266/05 P).

(18) COM(2002) 141 final.