Strasbourg, 18 April 2008

Dear Dr M.,

On 24 September 2007, you submitted a complaint to the European Ombudsman concerning the European Commission's alleged failure to decide on your confirmatory application for access to a document within the time-limits prescribed by Regulation 1049/2001(1).

On 4 October 2007, I forwarded the complaint to the President of the Commission. In an e-mail of 15 December 2007, you asked me whether the Commission's opinion was likely to be forthcoming still in 2007. Regrettably, it turned out not to be possible to reply to your e-mail within 2007. On 10 January 2008, I forwarded to you the original English version of the Commission's opinion which the Commission had sent me on 8 January 2008. In a letter of 14 January 2008, you pointed out that, judging from its opinion, the Commission would not grant access to the document requested. In the same letter you raised two subsidiary questions which you wanted the Commission to answer. On 31 January 2008, I forwarded the German translation of the Commission's opinion to you with an invitation to make observations. I also informed you that I would decide on the basis of your observations on how to proceed with the two questions you put to me and pointed out that you could also consider directly approaching the Commission with regard to this matter. On 5 February 2008, you sent observations on the Commission's opinion.

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

THE COMPLAINT

On 28 May 2007, the complainant, a German citizen, made a request for access to document C(2007)581/1. This document consists of (i) a communication to the Commission prepared by its Legal Service and (ii) a draft decision to be taken pursuant to Article 15(3) of Regulation 1/2003(2) by means of which the Legal Service would be authorised to submit written and, with the court's permission, oral observations to the Gerechtshof te Amsterdam, a Dutch court, in a case concerning the question whether a fine imposed by the Commission for anticompetitive behaviour could be deduced from tax (Case 06/00252).

By letter of 15 June 2007, the Commission extended the time-limit for processing the complainant's application by 15 working days, explaining that this was due to the relatively high number of persons who had to be consulted when preparing the official reply to him.

On 2 July 2007, partial access to the requested document was granted. As the Commission pointed out, certain parts of the relevant document were covered by the exception contained in Article 4(2) of Regulation 1049/2001(3), pursuant to which disclosure is to be refused where it would undermine the protection of court proceedings and legal advice, unless there is an overriding public interest in disclosure. Taking the view that the disclosure of certain parts of the document could jeopardise independent legal advice and given that relevant national court proceedings were still ongoing, the Commission pointed out that there was nothing to suggest that there was an overriding public interest in disclosure. Therefore confidential parts of the requested document had been blanked out.

In an e-mail of 3 July 2007, the complainant explained his professional interest in the documents, given that he had made the request for access in his capacity as the Head of the Finance Authority of a German municipality. His e-mail was apparently considered as a confirmatory application for comprehensive access to the relevant document.

On 24 July 2007, the Commission extended the time-limit for processing the complainant's confirmatory application by 15 working days. In view of the approaching expiration of the extended deadline on 14 August 2007, the Commission informed the complainant, by letter of 10 August 2007, that it was unable to respect the time-limit with respect to its decision. In the same letter, the Commission informed the complainant about legal remedies open to him, including the possibility to complain to the European Ombudsman.

On 24 September 2007, the complainant submitted a complaint to the Ombudsman (complaint 2420/2007/BEH). In his complaint, he alleged that the Commission had failed to decide on his confirmatory application within the time-limits prescribed by Regulation 1049/2001. He claimed that the Commission should decide on his confirmatory application and should grant him access to the requested document.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission acknowledged that it had failed to take a final decision on the complainant's confirmatory application and apologised for the delay. At the same time, it pointed out that the complainant's rights had not been prejudiced, given that Article 8(3) of Regulation 1049/2001 considers failure to reply by the institution to constitute a negative reply.

With regard to substance, the Commission pointed out that the requested document was a communication to the Commission which had been prepared by the Commission's Legal Service and which consisted of two parts, namely, (i) the draft decision to intervene in the case that was ongoing before the Amsterdam Court of Appeals and (ii) the draft instruction to the Legal Service to execute this decision. The document had thus been drafted for internal use and was part of the Commission's internal decision-making process prior to the preparation of the Commission's submissions in specific court proceedings. The Commission also explained that the Amsterdam Court of Appeals had submitted to the European Court of Justice a question for a preliminary ruling concerning the interpretation of Article 15(3) of Regulation 1/2003. That question related to the Commission's competence to submit, on its own initiative, written observations in proceedings relating to the deductibility from taxable profit of a fine imposed for an infringement of Community law. The Commission pointed out that it was also a party in these proceedings and would submit its observations to the Court of Justice whereas it had no guarantee that it would be allowed to submit observations to the Amsterdam Court of Appeals. Disclosure of the full content of the requested document, even in an anonymised form, would therefore undermine the Commission's rights as a party in these proceedings by putting in the public domain a preparatory document whose content could be part of its submissions at a later stage. For these reasons, the exception laid down in Article 4(2) of Regulation 1049/2001 prevented full disclosure. In addition, the adverse effects of disclosure were not outweighed by the public interest in full disclosure.

The Commission attached a copy of the relevant judgment of the Amsterdam Court of Appeals referring the said question for a preliminary ruling to the Court of Justice.

The complainant's observations

The complainant pointed out that he could understand the Commission's reasons for not disclosing the requested document at this stage. He also stated that he was disappointed by the length of time it had taken the Commission to do its work. However, he also stated that, overall, he considered the matter to be settled and thanked the Ombudsman for his intervention.

THE DECISION

1 Allegation that the Commission failed to decide on the confirmatory application within the time-limit and related claim

1.1 The present complaint concerns the European Commission's alleged failure to decide on the complainant's confirmatory application for access to document C(2007)581/1 within the time-limit provided for in Regulation 1049/2001(4). This document consists of (i) a communication to the Commission prepared by its Legal Service and (ii) a draft decision to be taken pursuant to Article 15(3) of Regulation 1/2003(5) by means of which the Legal Service would be authorised to submit observations to the Gerechtshof te Amsterdam, a Dutch court, in a case concerning the question whether a fine imposed by the Commission for anticompetitive behaviour could be deduced from tax (Case 06/00252). Following the complainant's initial application for access, only partial access to the requested document had been granted. The complainant claimed that the Commission should decide on his confirmatory application and grant (comprehensive) access to the requested document.

1.2 In its opinion, the Commission acknowledged that it had failed to take a final decision on the complainant's confirmatory application and apologised for the delay. It also took the view that, in light of Article 8(3) of Regulation 1049/2001 which considers a failure to reply in time to constitute a negative reply, the failure to reply did not affect the complainant's rights. As to the substance, the Commission stated that the requested document was covered by the exception contained in Article 4(2) of Regulation 1049/2001 since full disclosure would undermine the protection of court proceedings and legal advice. As the Commission pointed out, the requested document related to ongoing court proceedings, both before a national court and the European Court of Justice, so that full disclosure, even in an anonymised form, would undermine the Commission's rights as a party in such proceedings. Finally, the public interest in disclosure did not outweigh the adverse effects of disclosure to the interests protected by Article 4(2) of Regulation 1049/2001.

1.3 In his observations, the complainant explained that he understood the Commission's reasons for not disclosing the requested document. He also expressed his disappointment over the length of time taken by the Commission to do its work. However, he stated that, overall, he considered the matter to be settled and thanked the European Ombudsman for his intervention.

1.4 The Ombudsman observes that the complainant has expressed disappointment with the length of time taken by the Commission to do its work, but considered the matter settled. Against this background, the Ombudsman takes the view that there is no need for further inquiries as regards the complainant's allegation and related claim.

2 Conclusion

For the reason stated in point 1.4 above, the Ombudsman considers that there is no need for further inquiries into the complaint. 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) Regulation (EC) No 1049/2001/EC of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.

(2) Council Regulation 1/2003/EC of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1, p. 1.

(3) See note 1.

(4) See note 1.

(5) See note 2.