Strasbourg, 19 June 2008

Dear Mr L.,

On 18 October 2007, you submitted a complaint to the European Ombudsman against the European Commission concerning its claim, formulated in its opinion on your complaint 488/2007/PB, that a certain document that you had requested did not exist. Your complaint was contained in your observations on the Commission's above-mentioned opinion.

On 17 January 2008, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 14 March 2008. I forwarded it to you with an invitation to make observations, which you sent on 28 March 2008.

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

THE COMPLAINT

The complaint concerned a claim by the European Commission, made in the context of the latter's handling of a request for access, that a certain document did not exist and therefore access could not be granted.

In case 488/2007/PB, the complainant had asked for access, under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(1) ("Regulation 1049/2001"), to a number of documents held by the European Regulators Group ("ERG"), which was set up by the Commission. The Commission refused access to certain documents. In his letter to the Commission requesting an opinion on the complaint, the Ombudsman also asked it to clarify its decision specifically with regard to "Report ERG (06) 45 a", in respect to which the complainant sent his communication of 20 November 2006. "Report ERG (06) 45 a" had not been expressly mentioned in the Commission's reply to the complainant's confirmatory application under Regulation 1049/2001.

In its opinion, the Commission stated that, with regard to "Report ERG (06) 45 a", ERG documents registered with the letter "a" are notes summarising the content of the related documents. Such a note should normally have been made for "Report ERG (06) 45" and "Report ERG (06) 45b". However, no such note was produced because it had been decided shortly before the ERG plenary meeting not to discuss those reports, and "[t]herefore, there is no document with reference number ERG (06) 45a".

In his observations of 18 October 2007 on the Commission's opinion on the above-mentioned complaint, the complainant informed the Ombudsman that he had obtained copies of the allegedly non-existing "Report ERG (06) 45a". The complainant expressed his concerns over the fact that the Commission had apparently given untrue information in its opinion, and encouraged the Ombudsman to look into this matter.

The complainant made the point that it was not clear from the content of the said document why it should not have been made public, since the document merely contained a summary of "Report ERG (06) 45b" and a comment that there was no pressing need for publication.

The complainant encouraged the Ombudsman to deal with this issue separately, given that it concerned the "basic co-operation ['grundsätzliche Zusammenarbeit'] between the Ombudsman and the organs and institutions of the European Community".

On 17 January 2008, the Ombudsman opened the present inquiry into the following allegation: The Commission has given the Ombudsman untrue information by stating, in its opinion on complaint 488/2007/PB, that the document "Report ERG (06) 45 a" does not exist.

THE INQUIRY

The Commission's opinion

In its opinion on the complaint, the Commission essentially conceded that the document did exist, and made various comments relating to its initial conclusion on that issue (see decision part below). The Commission attached to its opinion a copy of the said document.

The complainant's observations

In his observations, the complainant stated that he had no significant comments to make on the Commission's opinion, but pointed out that his trust in the Commission had not been enhanced by its opinion (cf. decision part below).

THE DECISION

1 Allegation that the Commission gave untrue information to the Ombudsman

1.1 The complainant alleged that the Commission gave the European Ombudsman untrue information when stating, in its opinion on complaint 488/2007/PB, that the document "Report ERG (06) 45a" (requested by the complainant) did not exist.

1.2 In its opinion, the Commission provided information which essentially confirmed the complainant's allegation. The Commission made a number of points in this respect:

1. Following the complainant's latest application for documents, a further examination of the documents available to the ERG was conducted. This search confirmed that "Report ERG (06) 45a" does exist. It was finally retrieved on the CIRCA website(2).
2. As already explained in the Commission's response to the Ombudsman regarding complaint 488/2007/PB, the documents registered with the letter "a" are submission notes. Those notes briefly summarise issues presented in related documents and are intended to be a means of introducing documents to the ERG Plenary meetings for discussion before adoption. When replying to the Ombudsman's request for information regarding complaint 488/2007/PB, the Commission services believed bona fide that (i) no submission note had been prepared, given that "Report ERG (06) 45" was to be treated as an "A" point without discussion(3), and therefore (ii) that document could not be in its possession.
3. At first, the Commission services tried to retrieve the document from the place where such documents are usually saved, for a limited time period, before being deleted due to space restrictions, that is, on Personal Computers and on electronic supports dedicated to saving documents relating to the ERG Plenary. It did not consult the CIRCA website which is rather intended for the use of the delegates of national regulatory authorities.
4. As regards the content of the submission note in question, the Commission services confirm that it is, in its substantive part, an identical reproduction of the conclusions appearing on page 21 of "Report ERG (06) 45" which was previously disclosed by the Commission to the complainant.

1.3 In his observations, the complainant, made the following points: He stated that he had been left with the impression that the Commission did not take very seriously its duty of co-operation with the European Ombudsman. He did not consider it plausible that the Commission had genuinely searched for the allegedly non-existing document. He pointed out that it was hardly thinkable that "Report ERG (06) 45 b" existed but that the document logically preceding this, that is, "Report ERG(06) 45a", did not. He stated that he could have understood, for instance, the explanation that the document had been deemed too insignificant and therefore deleted. But the explanation that the document had never been created did not reinforce his trust in the Commission.

1.4 The Ombudsman notes that an institution's factual statement that a document does not exist carries with it a (refutable) presumption of truthfulness(4). This presumption applies with respect to all those actors who may be involved in the context of applications for access to documents, be they citizens or other Community institutions. With regard to the Ombudsman specifically, the presumption of truthfulness is, first of all, based on the high level of trust that exists between all institutions and the Ombudsman with respect to the application of Regulation 1049/2001. It furthermore carries with it an advantage of procedural economy - both for the Administration and for the Ombudsman - by greatly reducing the need for carrying out inspections of the administrative files or documents concerned. At the same time, the presumption of truthfulness implies a particularly strict duty of care to ensure the accuracy of statements regarding the non-existence of a document.

1.5 In the present case, the Commission has fully acknowledged that the disputed factual statement that it had made was wrong, that is, that the allegedly non-existing document did in fact exist. The relevant question at this point in the inquiry is therefore whether the Commission complied with the above-mentioned duty of diligence.

1.6 Having carefully examined the Commission's opinion, the Ombudsman does not consider that he has been provided with information or explanations that demonstrate compliance with the above-mentioned duty, for the following reasons:

First, paragraph 1 of the Commission's opinion indicates that its services had somehow inferred the non-existence of the document from the fact that documents registered with the letter "a" are submission notes. Those notes briefly summarise issues presented in related documents and are designed to introduce documents to the ERG Plenary meetings for discussion before adoption. The above inference appears to have been made in conjunction with the fact that "document ERG (06) 45 was to be treated as an 'A' point without discussion". However, the Commission has not given adequate explanations as to why, in general, such an inference would be justified(5), and why, in the special circumstances of the case at hand, such an inference did not, ultimately, reflect reality.

Second, paragraph 2 of the Commission's opinion has not provided clear and adequate information about the relevant search conducted by its services. It refers, only in general terms, to an unspecified "place" where documents are saved for an unspecified "limited period" before being deleted. It is not clear whether the reference intends to convey the information that the Commission services which searched for the document did so following the end of a fixed period for document retention, and that for this reason they (obviously) could not find it. Following this, the opinion refers, again, to a "CIRCA" website, indicating that this is "rather intended" for the use of the delegates of national regulatory authorities. This does not, amongst other things, convey any clear and specific information as to whether its services were not reasonably expected, as a matter of course, to have also searched the said "CIRCA" website.

Finally, it must be noted that the Commission stated that the document in question never existed, not that it was no longer in its possession or that its attempt to retrieve it from its computer system(s) had not been fruitful.

1.7 Given the nature of the maladministration found above, the Ombudsman points out that, in accordance with principles of good administration, it would have been appropriate of the Commission to issue an apology to the complainant. The Commission has chosen not to do so, and the Ombudsman therefore closes the case with a critical remark.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The presumption of truthfulness of the Administration's factual statement that a certain requested document does not exist implies a particularly strict duty of care to ensure the accuracy of such statements. In light of his findings in point 1.6 above, the Ombudsman does not consider that he has been provided with information and explanations that demonstrate compliance with this duty in the present case. The Commission's relevant behaviour, thus, involves maladministration.

The Ombudsman 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) OJ L 145, 31.5.2001, p. 43.

(2) https://circa.europa.eu/docs/circa_quick_guide_32.pdf

(3) As is evidenced from the agenda (ERG (06) 35 Rev 1) for the 18th Plenary Meeting of the ERG of 5-6 October 2006 (http://erg.ec.europa.eu/doc/meeting/ag_erg_plen_madeira_4_6_oct_2006.pdf), and the minutes of that Plenary Meeting (ERG (06) 52).

(4) Cf. Case T-311/00 British American Tobacco v Commission [2002] ECR II-2781, paragraph 35.

(5) For example, it is apparently possible that (i) a submission note that is registered with the letter "a" is prepared, for the purposes of the discussion of the relevant issue/draft document at the ERG Plenary meetings, and (ii) a decision not to discuss this issue/document is subsequently taken.