Strasbourg, 4 June 2007

Dear Ms B.,

On 3 January 2006, you submitted a complaint to the European Ombudsman on behalf of Okręgowa Izba Pielęgniarek i Położnych (District Chamber of Nurses and Midwives) in Katowice against the European Commission. This complaint was related to your earlier complaint 2902/2005/MHZ against the Commission, on which I decided that there were no grounds for me to open an inquiry.

On 6 February 2006, I forwarded the complaint to the President of the Commission and asked him to take the position on it by 30 April 2006.

On 12 May 2006, the Commission asked for an extension of the deadline.

On 19 May 2006, the Commission sent an opinion, which I forwarded to you with an invitation to make observations.

On 21 June 2006, I received your observations.

On 26 November 2006, I informed you of the status of your complaint.

On 12 January 2007, I asked the Commission for additional information.

On 2 March 2007, the Commission sent its reply which I forwarded to you with an invitation to submit observations.

On 3 April 2007, you sent your observations.

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

THE COMPLAINT

According to the relevant information provided by the complainant in her complaint 2901/2005/MHZ and in the present complaint, the relevant facts are, in summary, as follows:

In 2002-3, peer reviews were carried out in the accession countries by teams of experts from the EU-15 appointed by the Commission (Institution Building Unit of DG Enlargement, hereinafter "TAIEX"), in order to examine the qualifications of nurses and midwives in the accession countries. This process consisted of a preliminary questionnaire to be completed by government representatives from the accession countries and three days of visits by experts in the accession countries during which they discussed the relevant issues with government representatives and the representatives of professional corporations. In some cases, such visits were followed by additional contacts. The results of the reviews were presented in final reports. On the basis of these reports, the relevant provisions of the Accession Treaty were drafted, negotiated and, finally, the Accession Treaty was signed.

In the Peer Review Report concerning the qualifications of Polish nurses and midwives ("the Report"), the experts found that the training programmes for Polish midwives, that is, midwives holding bachelor or post-secondary diplomas delivered prior to accession, were not in conformity with the requirements under European law, namely, Council Directive 80/154/EEC of 21 January 1980 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in midwifery and including measures to facilitate the effective exercise of the right of establishment and freedom to provide services(1), and Council Directive 80/155/EEC of 21 January 1980 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action relating to the taking up and pursuit of the activities of midwives(2) (hereinafter "Directives on recognition").

According to the complainant, TAIEX, in its letters addressed to her of 2 and 23 September 2004(3) stated that the "peer reports are not public but have been provided for the governments of the accession countries", and that, "when agreeing the peer reviews with the governments of the countries concerned the Commission assured that reports resulting from the reviews would only be provided to the central national governments concerned by the relevant peer review."

On 18 April 2005, the complainant pointed out in her letter to the Commission that she was concerned that the competent authorities of the then Member States other than Poland could be in possession of draft versions of the Report (available from unofficial sources) and that decisions affecting the free movement of Polish nurses could be based on such versions. She stated that such versions contained errors.

The Commission replied on 2 May 2005 that only the final version of the Report was sent to the then Member States for information as well as to the Polish authorities. The Commission added that it "does not make peer review reports available to parties other than the country concerned and the Member States and does not take responsibility for other versions (and their content) unofficially obtained from other sources."

On 27 May 2005, the complainant addressed the Commission again. She stated that a number of third (and unauthorised) parties were, in the course of the drafting stage, in possession of a draft version of the Report. She attached copies of documents obtained from those third parties which contained references to the draft Report. There were: (i) a letter from the Standing Committee of Nurses to the Commission and (ii) a letter of 23 December 2002 from the Royal College of Nursing and Nurse and Midwife Council to the British Foreign Ministry. The complainant also pointed out that the draft Report was published on the website of the Netherlands' Institute for Care and Welfare (" NICW"), a private organisation which was the contractor undertaking the PHARE funded Dutch/Polish twining project concerning the recognition of professional medical qualifications. According to the complainant, this document has since been removed from NICW's website. Finally, the complainant requested the Commission to investigate the leak. In that respect she pointed out that Mr T.K, a leader of the peer review, was a representative of the standing Committee of Nurses and was employed by the NICW as an expert on the above twining project. She stated that she was not accusing Mr T.K., but "suggesting his possible role in the preparation and circulation of the documents". Furthermore, the complainant linked the properties of the word document published on the site of the NICW to Mr R.P, who was an official in the Commission's Directorate-General for Internal Market and Services ("DG Internal Market").

The Commission replied to the complainant on 16 June 2005. This letter and prior letters from the Commission were signed by the head of the unit D5- Institution Building, DG Enlargement. The Commission informed the complainant that the questions concerning the provisions of the Accession Treaty are not dealt with anymore by TAIEX and that TAIEX is only assisting the new Member States by virtue of the transition arrangements following enlargement in 2004. The Commission also advised the complainant to address her concerns to DG Internal Market. The Commission also stated that it had provided the complainant with all the information it could regarding the peer reviews, not only for Poland, but also for the other countries that acceded to the EU in 2004.

The complainant was not satisfied with the Commission's answer and, on 7 September 2005, she submitted her first complaint to the European Ombudsman (2902/2005/MHZ), which contained allegations and related claims concerning the accuracy of the peer review on the qualifications of Polish nurses and the allegation regarding the breach of confidentiality as regards the Report and related claims. As regards the complainant's allegations and claims concerning the accuracy of the peer review, the Ombudsman decided that there were no grounds for an inquiry because the Committee on Petitions of the European Parliament had already dealt with the same issue, and invited the complainant to state whether she wished the Ombudsman to open an inquiry that would deal only with her allegation concerning the breach of confidentiality. The complainant replied on 3 January 2006. The Ombudsman decided to register the complainant's letter of 3 January 2006 as a new complaint (191/2006/MHZ) and open an inquiry into the following allegations:

The complainant alleged that the Commission failed to (i) protect the confidentiality of the draft Report and (ii) to respond properly to complaints on the matter. The complainant claimed that (iii) the Commission should identify the individual(s) or organisations responsible for the breach of confidentiality and that (iv) a proper procedure should be put in place to avoid repetition of such events in the future.

THE INQUIRY

The opinion of the Commission

The Commission's opinion can be summarised as follows:

As regards the complainant's allegation concerning the breach of confidentiality, the Commission pointed out that the confidentiality of the peer review reports is maintained by the Commission to the best of its ability.

The final reports are distributed to the Member States via the Council Working Group on Enlargement and to the national authorities of the country concerned.

The Member States' experts, who form the Peer Review Missions and write the reports, are explicitly informed about the parameters within which they have to operate when undertaking to be a part of a peer review process. The Member States' experts are briefed about the restricted distribution of the final reports and are requested to maintain confidentiality at all stages of the report-writing process. These experts are not employed by the Commission but prepare the peer reviews reports on invitation as independent experts in a given field. They remain employees of the national administrations. As such, the Commission carefully and consistently briefs the experts. However, there are no contractual links between it and the experts. The Commission also emphasised that, at the time of writing, there were no other complaints regarding potential breaches of confidentiality on this matter.

As regards the complainant's allegation concerning the failure to answer properly to her complaints to the Commission, the Commission stated that it had consistently replied to her in a timely fashion explaining the processes surrounding the limited distribution of the peer review reports and also explaining that, following accession, the Directorate-General for Enlargement was no longer in a position to answer her concerns regarding the Accession Treaty. In this respect, the Commission attached to its opinion copies of an exchange of letters between it and the complainant. Apart from the letters already referred to by the complainant in her complaint, the Commission attached its replies to the complainant's confirmatory application for access to the reports, which was partially granted.

As regards the complainant's claim that the Commission should identify a body responsible for the breach of confidentiality, the Commission stated that it did not detect a breach of confidentiality emanating from its headquarters. The Commission does not make peer review reports available to parties others than the accession state concerned and the Member States. The Commission takes responsibility neither for other versions, unofficially obtained from other sources, nor for their content. The Commission has consistently emphasised to participating Member State experts, the need for the restricted circulation of the peer review reports. The request to identify individual(s) or organisations responsible on the basis of a single complaint is not warranted and could put at risk a system of peer reviews.

As regards the complainant's claim that a proper procedure should be put in place in order to avoid repetition of such events in the future, the current procedure, which already existed in 2002, functions well and has not been the subject of any other complaints regarding the unwarranted circulation of drafts of peer review reports. The Commission briefs the Member States experts carefully on the matters of confidentiality linked to the peer reviews. The Member States experts are therefore aware of the parameters of operation and are regularly reminded of them. The Commission admitted however that the "language used when briefing experts could eventually be strengthened". However, any change in the methods of informing experts should not jeopardise the trust and goodwill between experts and Commission, upon which that the peer review system is built.

Further inquiries
The Ombudsman's letter to the Commission dated 12 January 2007

In that letter, the Ombudsman asked the Commission to inform him whether the information concerning confidentiality was provided by the Commission to the national experts in writing, and, if the answer to this question were in the affirmative, to provide a copy of this written communication. If the Commission informed the national experts through an oral briefing, the Ombudsman asked the Commission to inform him of the content of the oral briefing and provide any documentation used by the Commission to carry out such briefing.

Moreover, the Ombudsman asked whether the Commission has any specific evidence as regards a possible breach of confidentiality by a national expert from the NICW. If the answer to that question were in the affirmative, the Ombudsman would like to be informed as to what steps the Commission has taken to enforce, vis-à-vis that national expert, the aforementioned obligations concerning confidentiality.

In her observations, the complainant suggested that the Ombudsman should take testimony from a Commission official who the complainant suspects of being the source of another leak. In his letter to the Commission, the Ombudsman noted that the complainant had explained her suspicions by pointing out that the draft peer review report which was published on the website of NICW bore the initials of the Commission official concerned, and that this official was involved in the issue of the recognition of qualifications of nurses and had professional contacts with NICW. Therefore, the Ombudsman invited the Commission to provide a written answer on this point.

The Commission's answer

First, the Commission stated that information concerning confidentiality was not given to national experts in writing but rather orally. The experts were informed orally at the introductory meeting held before starting a peer review process. During that meeting Commission officials explained the purpose and guiding principles for the mission to be carried out the following week. Experts were informed that the report should be drafted by them on the basis of a given template. They were also informed that the report was confidential and should also be treated as such in the future.

Furthermore, the Commission stated that the Directorates-General involved, namely, DG Enlargement and DG Internal Market, has no specific evidence that would lead it to suppose that a national expert from the NICW has committed a breach of his confidentiality obligations.

As regards the breach of confidentiality by a named Commission official ("the official"), the Commission stated that no evidence has been provided in support of that allegation. The Commission noted in this respect that the complainant submitted two main arguments in support of this allegation: (i) the official's initials appeared on the draft peer review report as published on the webpage of the NICW, and (ii) the official's "close relationship with the European Federation of Nurses Association, with experts and with the NICW."

The Commission argued that all peer reviews for all the then candidates countries and for all medical professions had been drafted using the same template, which bore the initials of the official because he was charged with the drafting of a template to be used by the experts in the peer reviews. Therefore, this indication in the properties field of a word document could not serve as evidence that the official divulged the draft Report.

The Commission noted that contacts by the official with the European Federation of Nurses Association, experts and the NICW are part of that official's job profile. The official's e-mail to the European Federation of Nurses Association, a copy of which the complainant provided together with her complaint, was transparently published by the that Association in its newsletter. This fact only demonstrates that the official was fulfilling his tasks.

The complainant's observations

The complainant took the view that the Commission confirmed in its reply that the draft Report or its final version were indeed confidential documents and that the national experts and presumably Commission employees were instructed to respect that confidentiality in the short and long term. In the complainant's view the Commission appears to accept in its reply that a breach of confidentiality has indeed occurred and that the draft version of the Report was published on the website of "the organisation contracted to the Commission".

Furthermore, the complainant clarified that the national expert referred to in her complaint was, at the time of the peer review in question, nominated by the UK and would, therefore, not fall within the Ombudsman's description of that expert in the Ombudsman's question to the Commission. Only after the completion of the peer review in question was this expert employed by the NICW as a "short term expert" on the Dutch-Polish Twining Project, partially funded and controlled by the Commission. This project dealt with the implementation of the Directives on recognition in Poland. As the draft Report was published on the specific NICW webpage presenting the twining project, "the question of this expert's possible involvement in the supply of the document must be considered". Therefore, the complainant suggested that the Ombudsman resubmit the question concerning that expert to the Commission. The complainant suggested the following formulation of the relevant question: "Whether the Commission has any specific evidence as regards a possible breach of confidentiality by any national expert who was employed on the Peer Review of Polish nurses with respect to the publication on the NICW websites of a draft version of this Peer Review report."

The complainant also stated that the Commission's answer to all suspected cases of breach of confidentiality is that "it has no evidence." She took the view that this is "a very weak defence" because the Commission "has apparently made no effort to investigate this breach of confidentiality or to attempt to obtain evidence". In the complainant's view, the above suggests that "the Commission is more concerned with avoiding its responsibilities than with exposing the person or persons responsible for this serious breach of trust." Therefore, the complainant suggested that the Commission formally request the NICW to identify the person or persons who supplied them with the draft Report. The complainant notes furthermore that the properties field of the word document show that the document was last saved by Mrs P.H.(4) who was, and still is, employed by the NICW. In this regard, the complainant suggested that the following further questions be put to the Commission: "[has] the Commission contacted NICW to request the name of the person who supplied them with a draft copy of the confidential Peer Review Report for Polish Nurses; If not, why not; If yes, please provide copies of your letter to NICW and of their reply with details of actions taken with respect to the person identified." The complainant considers that the NICW, "as a regular contractor of the Commission", should be willing to disclose the information about the person who supplied it with the draft Report in order to demonstrate that "they are worthy of the Commission's trust and respect in any future business relationship."

THE DECISION

1 The preliminary remark

1.1 The Ombudsman notes that, in her observations, the complainant suggests that the Ombudsman's further question put to the Commission on 12 January 2007 should be reformulated and that the national expert referred to therein should be described in more precise terms.

1.2 The Ombudsman notes however that, in her observations sent to the Commission together with the Ombudsman's further questions of 12 January 2007, the complainant clearly referred to a named person. Therefore the Ombudsman has every reason to believe that the Commission understood his question correctly and does not consider that further contact with the Commission is necessary in this respect.

2 The alleged breach of confidentiality and related claims

2.1 According to the complainant, a draft of the Peer Review Report ("the Report") on the qualifications of Polish nurses (a confidential document) had been published on the website of the Netherlands' Institute for Care and Welfare ("NICW"), which is a private organisation.

The complainant alleged that the Commission failed to protect the confidentiality of the draft Report.

The complainant claimed that the Commission should identify the individual(s) or organisations responsible for the breach of confidentiality and that a proper procedure should be put in place in order to avoid repetition of such events in the future.

In support of her allegation and claims, the complainant indicated two possible sources of the alleged leak: first, a named official of the Commission, second, a named national expert.

2.2 In summary, the Commission does not appear to contest that the leak could have taken place, but denies any responsibility for such a leak, and states that the leak did not come from within its services.

As regards the national experts who prepared the draft Report, the Commission is not responsible for their actions because (i) there was no employment link between the Commission and these experts (they are employed by national administrations), and (ii) the experts were orally informed by the Commission about the confidentiality requirements before they started drafting.

The Commission emphasised that, at the time of writing, there were no other complaints regarding potential breaches of confidentiality in this matter and took the view that the current procedure functions well. It admitted however that the "language used when briefing experts could eventually be strengthened".

2.3 The Ombudsman notes that, as regards the first possible source of the leak indicated in the complaint, the Commission denied that one of its officials was a source of the leak. The Commission argued that the official's initials appeared on the NICW website because this official was one of the authors of the peer report template on which the experts worked, and that the contacts with all the organisations involved in the recognition of the qualification of the Polish nurses were part of this official's job profile.

2.4 The Ombudsman considers the Commission's above explanation to be reasonable. In addition, he notes that the complainant did not contest the Commission's arguments in this respect in her further observations. Therefore, the Ombudsman considers that no further inquiry is justified as regards this aspect of the complaint.

2.5 Furthermore, as regards the second possible leak indicated by the complainant, it appears, on the basis of the information provided by the Commission which was not contested by the complainant, that the experts were employed by national administrations and that their expert duties did not result from any contractual relationship to the Commission. The Ombudsman, therefore, agrees with the Commission that, in general, experts contracted by the Commission bear the entire responsibility for their work, including the obligation to respect confidentiality. He also agrees that the Commission's role is limited to supporting them in their work by providing them with, for instance, the template of the report and by giving them instructions on how to draft the reports and how to respect confidentiality.

2.6 In light of the above, and taking into account that the Commission has no evidence against the national expert named by the complainant, the Ombudsman does not consider it useful, within the present inquiry, to ask the Commission to contact the NICW about the source of the leak in question, as suggested by the complainant in her further observations.

2.7 Furthermore, the Ombudsman notes the Commission's statement in its opinion that "the language used when briefing experts could eventually be strengthened". The Ombudsman understands this statement as an expression of the Commission's willingness to improve its procedures.

2.8 In light of the above, the Ombudsman does not consider that further inquiry is justified as regards this aspect of the complaint either.

2.9 The Ombudsman is not convinced, however, that it is sufficient for the Commission to brief the experts orally as regards the confidentiality requirements. In that respect, he will make a further remark below.

3 Alleged failure to properly answer the complainant's complaints

3.1 The complainant alleged that the Commission failed to respond properly to her complaints on the matter.

3.2 The Commission stated, in summary, that it had consistently replied to the complainant in a timely fashion, explaining the processes surrounding the limited distribution of the peer review reports, and also explaining that, following accession, Directorate-General for Enlargement was no longer in a position to answer the complainant's concerns regarding the Accession Treaty. In this respect, the Commission attached to its opinion copies of an exchange of letters between itself and the complainant.

3.3 The Ombudsman examined the supporting evidence submitted by the complainant and the Commission. He noted that, as regards the first allegation submitted in the present complaint, the complainant sent letters the Commission on 18 April and 25 May, to which the Commission answered respectively on 2 May and 16 June 2005. The Commission's answers appear to be exhaustive and polite.

3.4 The Ombudsman does not therefore find any instance of maladministration as regards this allegation.

4 Conclusion

On the basis of his inquiry into this case, the Ombudsman does not find any instance of maladministration as regards the complainant's second allegation.

As regards the complainant's first allegation and related claims, the Ombudsman considers that no further inquiries are justified.

The Ombudsman therefore closes the case.

FURTHER REMARK

The Commission could consider giving written instructions as regards the requirements of confidentiality to the national experts who take part in peer reviews. In the Ombudsman's view this could contribute to the successful operation of peer reviews by ensuring the complete respect for confidentiality and the avoidance of deliberate or inadvertent disclosure of confidential information.

The Ombudsman would be grateful if the Commission could inform him in due course about the measures foreseen in this regard, so that the information can be taken into account in the Ombudsman's Annual Report 2007.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 1980 L 93, p. 28.

(2) OJ 1980 L 33, p. 8.

(3) The complainant did not provide a copy of her letter of 23 September 2004.

(4) The complainant referred to a person.