THE BACKGROUND TO THE COMPLAINT

1. The complainant, who appears to be a citizen of the Czech Republic, considers that a road building project in the Czech Republic (the 'Prague Ring Road') infringes his rights and the rights of citizens in general. In this context, the complainant already approached the European Commission's Directorate-General Regional Policy ("DG Regio") on several occasions.

2. On 1 August 2008, the complainant asked DG Regio for access to the following documents: (i) the application for Community financing made by the Czech Republic in relation to section 514 of the Prague Ring Road and the relevant preliminary/feasibility studies; (ii) the Commission's decisions concerning the financing of this project; and (iii) the corresponding financing plan authorised by the Commission, including information on when, how much and to whom the Community financing would be paid.

3. In its reply of 11 September 2008, DG Regio pointed out that the complainant had already been informed that his letters would no longer be answered since they were repetitive.

4. On 16 September 2008, the complainant submitted a confirmatory request for access to the above-mentioned documents, pursuant to 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").

5. On 27 October 2008, the Commission granted access to the documents set out under (ii) and (iii) above. As regards the "application for financing and the Feasibility Study", DG Regio submitted that, pursuant to Article 4(5) of Regulation 1049/2001, it was not entitled to disclose documents emanating from Member States without the consent of the Member State concerned. DG Regio pointed out that it had written to consult the Czech Republic on this request for access but that no answer had yet been received. The complainant would be informed as soon as this answer was received.

6. On 19 November 2008, the complainant asked DG Regio for access to a copy of the letter in which the Czech Republic requested that the Commission not disclose the "preliminary/feasibility studies." The complainant made it clear that this letter was a new application for access to documents.

THE SUBJECT MATTER OF THE INQUIRY

7. In his complaint, the complainant put forward the following allegations:

1. The Commission has failed to deal with his requests for access to documents of 1 August and 16 September 2008 within the deadlines foreseen by Regulation 1049/2001.
2. The Commission has incorrectly applied Article 4(5) of Regulation 1049/2001.

8. The complainant claimed that the Commission should comply with the deadlines foreseen by Regulation 1049/2001 and correctly apply the rules on access set out in this Regulation.

9. On 6 March 2009, the complainant informed the Ombudsman that he had submitted to DG Regio four requests for access (including the one covered by the present inquiry) and reported on the results of these requests until the time of writing. In his letters of 8 and 29 April 2009, the complainant informed the Ombudsman of a number of further problems he had had with the Commission.

10. In his reply of 5 May 2009, the Ombudsman explained that the present inquiry concerned only the handling of the requests for access made by the complainant on 1 August 2008 and 16 September 2008. He added that if the complainant wished the Ombudsman to examine further issues, he should make a request to that effect. The complainant has, in the meantime, submitted two further complaints (complaints 1202/2009 and 1209/2009). The Ombudsman's inquiries into these two cases are pending.

11. In his observations on the Commission's opinion, the complainant made some comments on the handling of another request for access. The Ombudsman presumes that this is the request that gave rise to complaint 1207/2009/GG. There is, therefore, no need to examine the relevant comments in the context of the present inquiry.

12. In his observations, the complainant further made it clear that he considered the Commission's decision to terminate the correspondence with him in relation to sections 518 and 519 of the Prague Ring Road as a serious breach of trust. However, the complainant did not make any allegations or claims concerning this issue. This issue will therefore not be examined in the present decision.

13. In his observations, the complainant also submitted comments concerning a letter that the Commission appears to have sent to the private e-mail address of the Czech Minister of Transport. The complainant explained that a request for access to this document which he had submitted to the Czech Ministry of Transport had been unsuccessful, as the Ministry had explained that the e-mail-address that had been used by the Commission did not belong to its official correspondence. He added that the Commission in turn had informed him, on 3 April 2009, that it had not kept a copy of the said document. The complainant pointed out that he suspected that the document did not exist at all and that the Commission had violated its duty to remain independent of national authorities. He therefore asked the Ombudsman to deal with this issue and to see to it that the document was disclosed to him, provided it existed.

14. As the Ombudsman already explained in his letter of 5 May 2009, the present inquiry concerns only the handling of the requests for access made by the complainant on 1 August 2008 and 16 September 2008. In the Ombudsman's view, it would not be advisable to include in the present inquiry the further issue raised by the complainant, which appears to concern a different request for access. The complainant remains free, however, to submit a new complaint concerning this issue to the Ombudsman.

THE INQUIRY

15. The complaint was lodged on 19 November 2008. On 28 November 2008, the Ombudsman asked the Commission for an opinion on this complaint.

16. The Commission sent its opinion on 13 (English original) and 25 May 2009 (German translation). The opinion was forwarded to the complainant, who submitted observations on 9 June 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

17. In its opinion, the Commission pointed out that some of the documents requested by the complainant had been sent to him on 27 October 2008 and that the remaining documents (i.e., the application for Community assistance and the feasibility study) had been disclosed on 4 December 2008. In his observations, the complainant did not challenge this statement. It thus appears that the complainant has now received the documents to which he had requested access.

18. The present case thus focuses exclusively on (i) whether the Commission has complied with the time-limits foreseen by Regulation 1049/2001 and (ii) whether it correctly applied Article 4(5) of the said Regulation.

A. Allegation of failure to deal with the requests for access within the deadlines foreseen by Regulation 1049/2001 and the relevant claim

Arguments presented to the Ombudsman

19. The complainant alleged that the Commission failed to deal with his requests for access to documents of 1 August and 16 September 2008 within the deadlines foreseen by Regulation 1049/2001. He claimed that the Commission should comply with the deadlines foreseen by the said Regulation.

20. In its opinion, the Commission explained that DG Regio had not identified the complainant's letter of 1 August 2008 as a request for access to documents and considered the letter of 16 September 2008 as an initial request and not as a confirmatory application. In this context, the Commission pointed out that the Cabinet of the Commissioner responsible and DG Regio had received a considerable number of letters, e-mails and telephone calls from the complainant concerning sections 518 and 519 of the Prague Ring Road. It submitted that the complainant made repetitive requests concerning these sections and was therefore informed, by e-mail of 3 June 2008 and by letter of 8 August 2008, that its services would discontinue any further exchange of correspondence concerning these sections. The Commission noted that its services did not, therefore, initially realise that the letters of 1 August and 16 September 2008 did not concern these sections but section 514 of the Prague Ring Road. It submitted that DG Regio acted diligently once it understood that these letters did not relate to sections 518 and 519 of the Prague Ring Road. On 14 October 2008, DG Regio informed the complainant that his request of 16 September 2008 was being examined.

21. The Commission explained that DG Regio considered that it was in the complainant's interest that it should take a position on his request rather than send it to the Secretariat-General (in order to be treated as a confirmatory application). If DG Regio had sent the request to the Secretariat-General, the complainant would have lost the possibility to appeal against DG Regio's decision to the Secretariat-General.

22. The Commission added that some of the documents requested by the complainant had been disclosed on 27 October 2008 and that the remaining documents had been sent on 4 December 2008, following the necessary prior agreement of the Czech authorities.

23. The Commission accepted that it failed to deal with the complainant's applications of 1 August and 16 September 2008 within the deadlines foreseen in Regulation 1049/2001 and in line with the procedural requirements laid down in Commission Decision 2001/937/EC of 5 December 2001 amending its rules of procedure.[2] It added that it regretted this delay.

The Ombudsman's assessment

24. The complainant alleges that the Commission failed to comply with the relevant deadlines both as regards his initial application for access of 1 August 2008 and the confirmatory application he lodged on 16 September 2008. According to Article 7(1) and 8(1) respectively of Regulation 1049/2001, requests for access and confirmatory applications are to be dealt with within 15 working days after registration.

25. Citizens have the possibility to make a confirmatory application where a request for access is not dealt with within the deadline foreseen by Regulation 1049/2001. This is what the complainant did in the present case. In these circumstances, the Ombudsman considers that there is no need for further inquiries into the alleged delay as regards the handling of the original request for access.

26. As regards the handling of the confirmatory application made on 16 September 2008, DG Regio has explained that it failed to deal with the initial request for access because of a misunderstanding and that it proposed to handle the request of 16 September 2008 as an initial request in order to preserve the complainant's right to make a confirmatory application, in case the complainant did not agree with its decision on this request. The Ombudsman considers that this was a constructive proposal aimed at remedying the negative consequences of DG Regio's failure to deal with the initial request made on 1 August 2008. However, regard should be had to the fact that Article 7(4) of Regulation 1049/2001 provides that failure by the institution to reply to an initial application within the prescribed time-limit "shall entitle the applicant to make a confirmatory application". The complainant was therefore entitled to make a confirmatory application after DG Regio had failed to deal with his initial request for access of 1 August 2008 and to insist that the Commission deal with this confirmatory application on the basis of the rules laid down in Regulation 1049/2001.

27. The Ombudsman notes that the Commission has admitted that it failed to deal with the complainant's confirmatory application of 16 September 2008 within the period of 15 working days laid down by Regulation 1049/2001. This failure to comply with Article 8(1) of Regulation 1049/2001 constitutes an instance of maladministration. The Ombudsman notes that the Commission has expressed its regrets at the delay that occurred. However, regard should be had to Article 12(3) of the European Code of Good Administrative Behaviour,[3] which provides as follows: "If an error occurs which negatively affects the rights or interests of a member of the public, the official shall apologise for it (...)". In the Ombudsman's view, an apology would thus have been appropriate in the present case. In the absence of such an apology, a critical remark will be made below.

B. Allegation of incorrect application of Article 4(5) of Regulation 1049/2001 and relevant claim

28. The complainant alleged that the Commission had incorrectly applied Article 4(5) of Regulation 1049/2001. He submitted that the Commission appeared to consider all documents emanating from Member States to be confidential. The complainant claimed that the Commission should correctly apply the rules on access set out in this Regulation.

29. The Commission submitted that, contrary to the complainant's allegations, it had never claimed that documents from Member States were in principle covered by the obligation of confidentiality or that the documents requested by the complainant were classified as confidential. According to the Commission, the complainant was informed, on 27 October 2008, that some documents could not yet be provided, since DG Regio had to consult the Member State concerned.

30. The Commission explained that Article 4(4) of Regulation 1049/2001, which also applied to Member States, provides that it had to consult the third party from which the documents originate unless it is clear that the documents shall or shall not be released. It added that, as confirmed by the Court of Justice in its judgment of 18 December 2007,[4] Article 4(5) of Regulation 1049/2001 placed the Member States in a particular position as regards other third parties.

31. The Commission stated that it therefore disagreed with the complainant's interpretation of Article 4(5) of Regulation 1049/2001.

32. In his observations, the complainant pointed out that he had submitted a further request to the Commission, asking for access to the document in which the Czech Republic had requested that the Commission not disclose without its prior consent the documents covered by point (i) of his request for access of 1 August 2008. In its reply of 3 April 2009, the Commission explained that no such document existed and added the following: "In accordance with Article 4(5) of Regulation 1049/2001 of the European Parliament and of the Council the Commission asked for the consent of the Czech Republic. The Czech Republic has consented to the disclosure." The complainant submitted that the Commission had thus failed to apply Article 4(5) of Regulation 1049/2001 correctly. He asked the Ombudsman to examine whether future requests could be handled more properly.

The Ombudsman's assessment

33. Article 4(5) of Regulation 1049/2001 provides as follows: "A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement."

34. As the Commission correctly observed, this provision places Member States in a position different from that of other third parties, to whom Article 4(4) of Regulation 1049/2001 applies. This provision is worded as follows: "As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed." Unlike third parties to whom Article 4(4) applies, a Member State thus has the possibility of requesting the institution not to disclose without its prior agreement a document originating from that State. There is therefore no need further to examine Article 4(4) of Regulation 1049/2001 in the present case.

35. In its judgment in Case C-64/05 P,[5] the Court of Justice has clarified the procedure to be followed when applying Article 4(5) of Regulation 1049/2001. It follows from this judgment that an institution which receives a request for access to a document originating from a Member State has to inform this Member State of the request. The institution and the Member State concerned then have to "commence without delay a genuine dialogue concerning the possible application of the exceptions laid down in Article 4(1) to (3) of Regulation 1049/2001, while paying attention in particular to the need to enable the institution to adopt a position within the time-limits within which Articles 7 and 8 of the regulation require it to decide on the request for access." If the Member State concerned objects to disclosure of the document in question, it is obliged to state reasons for that objection with reference to those exceptions. Where no such reasons are given, the institution must, if it considers that none of those exceptions applies, give access to the document that has been asked for. If the Member State concerned objects to disclosure on the basis of reasons referring to the exceptions laid down in Article 4(1) to (3) of Regulation 1049/2001, the institution is obliged to reject the request for access. However, the institution itself has to give reasons for this decision. The institution cannot merely record the fact that the Member State concerned has objected to disclosure of the document asked for, but also has to set out the reasons relied on by that Member State to show that one of the exceptions to the right of access in Article 4(1) to (3) of the Regulation applies. The decision of the institution can then be reviewed by the Community courts or the European Ombudsman.

36. It follows from the above that a document originating from a Member State can be disclosed (i) if none of the exceptions laid down in Article 4(1) to (3) of Regulation 1049/2001 applies and (ii) if the Member State concerned either consents to the disclosure or objects to it without providing reasons referring to one of these exceptions.

37. The Ombudsman notes that, in its letter to the complainant of 27 October 2008, DG Regio stated that Article 4(5) of Regulation 1049/2001 prevented it from disclosing documents emanating from a Member State "without the consent of the Member State concerned". He further notes that, in its opinion, the Commission referred to "the necessary prior agreement of the Czech authorities". These statements could suggest that the Commission indeed misinterpreted Article 4(5) of Regulation 1049/2001 in the sense that no disclosure was possible without the agreement of the Member State concerned.

38. The Ombudsman notes, however, that the complainant subsequently obtained a copy of the letter dated 24 October 2008 in which the Commission consulted the Czech authorities in relation to the request for access made by the complainant. A copy of this letter was forwarded to the Ombudsman by the complainant on 27 May 2009. The Ombudsman notes that this letter correctly describes the procedure to be followed as regards the application of Article 4(5) of Regulation 1049/2001. In particular, the letter stresses that if the Member State wished to oppose disclosure, it would have to set out reasons to show that one of the exceptions laid down in Article 4(1) to (3) of Regulation 1049/2001 applied.

39. In view of the above, the Ombudsman considers that it has not been established that the Commission incorrectly applied Article 4(5) of Regulation 1049/2001. No maladministration is therefore found as regards this aspect of the case.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

The Commission failed to deal with the complainant's confirmatory application of 16 September 2008 within the period of 15 working days laid down by Regulation 1049/2001. This failure to comply with Article 8(1) of Regulation 1049/2001 constitutes an instance of maladministration.

The complainant and the European Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 16 July 2009

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[1] OJ 2001 L 145, p. 43.

[2] OJ 2001 L 345, p. 94. This Decision sets out detailed rules for the application of Regulation 1049/2001 by the Commission.

[3] The Code is available at the Ombudsman's website (www.ombudsman.europa.eu).

[4] Case C-64/05 P Sweden and IFAW v Commission [2007] ECR I-11389, paragraphs 43-50.

[5] Loc. cit. paragraphs 85-89.