THE BACKGROUND TO THE COMPLAINT

1. On 14 December 2007, the complainant, a British citizen, applied to the European Commission for public access to documents in accordance with Regulation (EC) No 1049/2001[1] ('the Regulation'). The complainant requested access to certain reports concerning the reform of the common rules in the internal energy market, which had been prepared for the Commission by a consultancy firm,.

2. On 5 February 2008, the Commission refused access on the basis of Article 4(3) of the Regulation, which concerns the protection of the institution's decision-making process.

3. On 12 February 2008, the complainant submitted a confirmatory application.

4. On 5 March 2008, the Commission informed the complainant by letter that it needed to extend the deadline for a reply by another 15 working days. On 31 March 2008, in a further letter, the Commission extended the deadline for handling the application by a further 15 working days.

5. On 17 May 2008, the complainant turned to the Ombudsman to complain about the Commission's failure to deal with his request for access to documents in a timely manner.

6. On 27 May 2008, the Commission granted the complainant partial access to the requested documents.

THE SUBJECT MATTER OF THE INQUIRY

7. On 17 July 2008, the Ombudsman opened an inquiry into the following allegations and claim:

1. The Commission failed to respect the relevant provisions of the Regulation regarding the timeliness of handling requests for access to documents.
2. The Commission failed to provide valid and adequate grounds for not granting full access to the requested documents.

The complainant claimed that the Commission should grant him full access to the requested documents.

THE INQUIRY

8. On 17 July 2008, the Ombudsman asked the Commission to submit an opinion on the above allegations and claim by 31 October 2008.

9. By letters dated 29 October 2008 and 30 January 2009, the Commission asked for the deadline for submitting its opinion to be extended. The Commission finally sent its opinion on 25 February 2009. The Commission's opinion was forwarded to the complainant with an invitation to submit observations. The complainant did not submit observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation that the Commission failed to respect the relevant provisions of the Regulation regarding the timeliness of handling requests for access to documents

Arguments presented to the Ombudsman

10. The complainant alleged that the Commission failed to respect the relevant provisions of Regulation (EC) No 1049/2001[2] ('the Regulation') regarding the timeliness of handling requests for access to documents. He argued that the Commission took almost five months to deal with his application whereas the Regulation allows for a maximum of four times 15 working days[3] including extensions which must be duly explained.

11. In its opinion, the Commission first explained the background of the case. It recalled that, in a letter dated 14 December 2007, the complainant requested access to a study by ECORTS and Moffatt Associates on The reform of the common rules in the internal energy market, as referred to in the Impact Assessment of the proposal for the Third Internal Market package. By letter dated 5 February 2008, the Commission's Directorate-General for Energy and Transport refused access to the requested documents. On 12 February 2008, the complainant lodged a confirmatory application. By letter dated 5 March 2008, the Commission extended the deadline for handling the request by 15 working days on the basis of Article 8(2)[4] of the Regulation. By letter dated 31 March 2008, the Commission referred to Article 6(3)[5] of the Regulation, and, pointing to the volume of the document requested, proposed, as a fair solution, a further 15 working day extension of the deadline, until 21 April 2008. On 27 May 2008, the Commission informed the complainant that the requested documents fell under the exception provided for in Article 4(3)[6] first paragraph, and that, therefore, only partial access could be granted.

12. As regards the complainant's allegation in the present case regarding the Commission's timeliness in handling his request, the institution stated that, by letter dated 31 March 2008, it informed the complainant that it was unfortunately not in a position to provide the final reply within the time limit set out in Article 8(2) of the Regulation. The Commission argued that this was due to the fact that the complainant's request concerned very voluminous documents which had to be carefully assessed in order to establish if any of the exceptions provided for in Article 4 of the Regulation were applicable. Therefore, in line with Article 6(3), it proposed, as a fair solution, extending the deadline for handling the request by a further 15 working days. On 27 May 2008, the Commission provided its final reply to the complainant's confirmatory application. It acknowledged that, due to extensive internal discussions, it was unable to meet the deadline and presented its apologies to the complainant.

The Ombudsman's assessment

13. The complainant alleged that the Commission failed to respect the relevant provisions of the Regulation regarding the timeliness of handling requests for access to documents. On 14 December 2007, he submitted his application, which was received by the Commission on 17 December 2007. The Commission's first response to the application was to send a letter sent to the complainant on 5 February 2008, rejecting the application on the basis of Article 4(3) of the Regulation.

14. As regards the handling of initial applications, Article 7 of the Regulation provides that:

"…Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal… Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application."

15. The Ombudsman notes that there is no record of the fact that the Commission acknowledged receipt of the complainant's initial application. The Commission's first reply to the complainant was dated 5 February 2008. It should nevertheless be noted that Article 7 of Regulation clearly states that failure by the institution to provide a reply within the set deadline entitles the applicant to make a confirmatory application.

16. On 12 February 2008, the complainant submitted a confirmatory application.

17. On 5 March 2008, the Commission wrote to the complainant:

"I refer to your application of 12 February 2008, registered on 13 February 2008, in which, pursuant to Regulation (EC) N° 1049/2001 regarding public access to European Parliament, Council and Commission documents, you lodge a confirmatory application for access to a study by ECORTS and Moffatt Associates on the reform of the common rules in the internal energy market, as referred to in the Impact Assessment of the proposal for the Third Internal Market package. Your application is currently being handled. However, since we still have not gathered all the elements we need to carry out a proper analysis of your request in order to take a final decision, we will not be able to reply to your confirmatory request within the prescribed time limit. Therefore, we need to extend this period by another 15 working days in accordance with Article 8(2) of Regulation 1049/2001. The new deadline expires on 31 March 2008. I apologize for any inconvenience this delay may cause."

18. As regards confirmatory applications, Article 8 of the Regulation provides that:

"1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access…

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given."

19. The purpose of the tight deadlines foreseen in the Regulation is to ensure that the right of access is fully respected. Any failure to respect the deadlines thus constitutes a breach of the rules. Since the complainant submitted the confirmatory application on 12 February 2008, the Commission should have either granted access to the document requested, or stated in writing, by 5 March 2008 at the latest, the reasons for its total or partial refusal.

20. On 5 March 2008, the Commission merely informed the complainant that it had decided to extend the deadline for replying to the confirmatory application, in accordance with Article 8(2) of the Regulation. The new deadline to grant or refuse access to the requested document should, therefore, have been 27 March 2008. However, in its decision of 5 March 2008, the Commission indicated, erroneously, that the new deadline was 31 March 2008.

21. Furthermore, on 31 March 2008, the Commission wrote to the complainant as follows:

"I refer to your letter of 12 February 2008, registered on 13 February 2008, in which, pursuant to Regulation (EC) N° 1049/2001 regarding public access to European Parliament, Council and Commission documents, you lodge[d] a confirmatory application for access to a study by ECORTS and Moffatt Associates on the reform of the common rules in the internal energy market, as referred to in the Impact Assessment of the proposal for the Third Internal Market package. I further refer to my letter of 5 March 2008, in which I announced that, in accordance with Article 8(2) of Regulation 1049/2001, we needed to extend the time limit for handling your request since we still had not collected all the necessary elements to carry out a proper analysis of your request. Unfortunately, at this moment, we are not in the position to provide you with a final reply within the extended time limit, which expires today. This is due to the fact that your request concerns a very voluminous document, which we have to assess meticulously in order to establish if any exception of Article 4 of Regulation 1049/2001 apply and therefore only partial access can be granted. As a result, in line with Article 6(3) of this Regulation, which provides that '[in] the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution', I would like to suggest as a fair solution to extend the deadline for handling your request with another 15 working days until 21 April 2008. I hope you accept this proposal and I would be grateful if you would be so kind as to confirm this by e-mail to: sg-acc-doc@cec.eu.int. I thank you for your understanding."

22. Similarly to Articles 7 and 8 of the Regulation, Article 2 of Commission Decision C(2001) 3714[7] provides that "the Commission shall answer initial and confirmatory access applications within fifteen working days from the date of registration of the application. In the case of complex or bulky applications, the deadline may be extended by fifteen working days."

23. The Ombudsman points out that neither the Regulation nor Commission Decision C(2001) 3714 provide for a further extension to an already extended deadline for a decision on an (initial or confirmatory) application for access to documents. Since the Commission extended the deadline for replying to the complainant's confirmatory application on two occasions, the Ombudsman considers that the Commission failed to respect both the Regulation and the Commission Decision referred to above.

24. The Ombudsman further notes that, in its letter dated 31 March 2008, the Commission argued that it needed to extend further the deadline for handling the complainant's confirmatory application "in line with Article 6(3) of this Regulation".

25. According to the established case law of the Union courts[8], the institution’s right to seek a fair solution together with the applicant, provided for in Article 6(3) of the Regulation, reflects the possibility of account being taken, albeit in a particularly limited way, of the need to reconcile the interests of the applicant with those of good administration.

26. As regards the possibility for an institution to rely on Article 6(3) of the Regulation in order to delay its reply further by proposing a "fair solution" to an applicant, it must be recalled that the Regulation expressly provides that the 15 working day deadline for handling initial and confirmatory applications can be extended under exceptional circumstances. It follows that the circumstances would have had to be particularly exceptional for the Commission to be able to rely on Article 6(3) to justify the further delay which occurred.

27. In addition, Article 6(3) provides that "the institution concerned may confer with the applicant informally, with a view to finding a fair solution". Article 6(3) cannot, therefore, be interpreted as providing the institution with the possibility of unilaterally imposing what it perceives to be a "fair solution".

28. Finally, Article 6(3) applies to initial applications and not to confirmatory applications. The possibility of seeking a fair solution is provided for in cases of a "very long document" or "a very large number of documents". When an institution accepts a document request as a formal application for documents under the Regulation, it should normally know, as it did in the present case, whether the object of the application is a "long" document or a "large number" of documents. This is the point in time when it should make use, if necessary, of the possibility of finding a fair solution. The above logic does not exclude, in the Ombudsman's view, that "fair solutions" may be sought if the institution subsequently finds itself faced with new and unforeseeable circumstances concerning the length or number of documents requested or, for example, the irretrievability of a large number of old documents.

29. In the present case, however, the Commission's reliance on Article 6(3) must be considered unlawful in all the above-mentioned respects. It did not refer to any particularly exceptional circumstances in order to justify the additional delay and, essentially, it imposed the additional delay unilaterally because it was perfectly clear that even if the complainant refused to agree to the proposed fair solution, there would nevertheless be a delay.

30. The Ombudsman notes with regret that similar errors occurred in relation to the Commission's reliance on Article 8(2) of the Regulation. Article 8(2) of the Regulation requires the Commission to provide the applicant with "detailed reasons" for extending the deadline. What constitutes sufficiently "detailed" reasoning within the meaning of the above provision may differ from case to case, depending on the relevant circumstances. Nevertheless, a simple reference, formulated in general terms, to the fact that the Commission has not "collected all the necessary elements to carry out a proper analysis of the [complainant's] request" cannot satisfy the foregoing requirement. Such a statement does not contain sufficient information to enable a review of whether an extension is justified in the specific case. Explanations as to why the Commission could not obtain the information necessary to analyse the application would be appropriate. In the present case, the Commission's statement does not, therefore, provide "detailed reasons" within the meaning of Article 8(2) of the Regulation.

31. Finally, the Ombudsman notes that it was not until 27 May 2008 that the Commission granted partial access to the documents requested. This was more than five months after 14 December 2007, the date of the initial application.

32. In light of the above considerations, the Ombudsman finds that the Commission failed to respect the provisions of the Regulation regarding the timeliness of handling requests for access to documents in the following three respects: (i) It further extended the already extended deadline to deal with the complainant's confirmatory application by relying on Article 6(3) of the Regulation, but without putting forward any valid or adequate explanations; (ii) it purported to apply the possibility of extending the deadline in accordance with Article 8(2) of the Regulation, but did so without providing any valid and adequate explanations; and (iii) it grossly delayed its reply to the complainant by taking five months to reach a decision on the latter's application. There actions of the Commission constituted instances of maladministration and the Ombudsman will make a pertinent critical remark below.

B. Allegation that the Commission failed to provide valid and adequate grounds for not granting full access to the requested documents, and related claim

Arguments presented to the Ombudsman

33. The complainant alleged that the Commission failed to provide valid and adequate grounds for not granting full access to the requested documents. He argued that almost all citizens of the Union are energy buyers or users, and are therefore affected by the reform of the energy market. There was, therefore, an overriding public interest in public access to the analysis underlying the Commission's proposals. He claimed that the Commission should grant him full access to the requested documents.

34. In its opinion, the Commission explained that, since negotiations were ongoing at the time the request was made, it feared that disclosure of the requested documents would seriously undermine its decision-making process regarding positions it might have adopted in the course of these negotiations. It went on to say that the Third Energy Package was the subject of lively debates and difficult negotiations between the European Parliament, the Council and the Commission. Therefore, disclosure would have limited the Commission's margin of manoeuvre, jeopardised its flexibility and its ability effectively to contribute to the final stages of the negotiations. The fact that almost all citizens of the Union, as energy buyers or users, are affected by the reform of the energy market cannot be interpreted as constituting an overriding public interest to justify disclosing the requested documents. Given that all EU policies affect the lives of its citizens, a mere link with a policy is not sufficient to justify disclosure. In view of the conflicting interests in this case, the Commission considered that the public interest would be best served by successful inter-institutional negotiations and a swift adoption of the Third Energy Package. Disclosure of the requested documents would have jeopardised this objective. However, in view of the advances in the inter-institutional negotiations, discussions in the European Parliament during June and July 2008, and the political agreements struck in the Council on 10 October 2008, the Commission now considers that the documents requested are no longer covered by the exception on which it previously relied. It therefore decided to grant full access to the documents requested, and attached copies of them to its opinion.

The Ombudsman's assessment

35. Article 4(3) of the Regulation provides:

"Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

36. According to settled case-law of the Union courts, the exceptions laid down in the Regulation must be constructed and applied restrictively, so as not to defeat the general principle enshrined in the Regulation giving the public the widest possible access to documents.[9]

37. Furthermore, the above Article unequivocally provides for the obligation, and not just the possibility, to disclose the documents requested unless the Commission proves that doing so would "seriously undermine" its decision-making process.

38. In the present case, the first key issue is, therefore, whether the Commission was in fact engaged in a decision-making process in which it had a real and genuine possibility of reaching a concrete decision. In this regard, the Ombudsman notes the Commission's statement, made in its reply of 27 May 2008, that even if it had already "adopted its proposals, it nevertheless participate[d] actively in the inter-institutional negotiations" and that it could "amend its proposals until the end of these negotiations".

39. The Ombudsman accepts the Commission's view that, when it participates in such inter-institutional negotiations, its internal procedures are involved. This implies that there is a real and genuine possibility for the Commission to reach a concrete decision. Article 4(3) may, therefore, in principle apply to the present situation.

40. As regards the adequacy of the Commission's argument that public disclosure would "seriously undermine" the decision-making process, the Ombudsman notes the Commission's explanation that it was still actively participating in the inter-institutional negotiations at the time the complainant made its confirmatory application, and that there was, therefore, a possibility that it might decide to amend its proposal right up until the closure of these negotiations. Moreover, "the Third Energy Package [was] at the second reading of the legislative procedure and [was] the subject of lively debates and difficult negotiations between the European Parliament, the Council and the Commission".

41. In light of these explanations, the Ombudsman considers that the Commission's reasons for not disclosing the documents are reasonable and that they comply with the minimum requirements for the provision of adequate explanations for non-disclosure. The Ombudsman considers this to be particularly relevant in the present case, in light of the fact that the documents requested were being used in ongoing negotiations between the Commission and external actors.

42. As regards the requirement that this exception can only be applied when there is no overriding public interest in the disclosure of the document concerned, the Ombudsman has held in previous decisions[10] that it follows from the structure and the wording of the provision concerned that normally it is the person seeking access who has to establish the presence of an overriding public interest in disclosure. In the present case, the complainant argued that almost all citizens of the Union are energy buyers or users, and are, therefore, affected by the reform of the energy market. The Ombudsman agrees with the Commission's remark that this statement cannot be interpreted as constituting an overriding public interest which would justify disclosure. In the absence of any further specific argument from the complainant, the Ombudsman considers that the complainant did not establish that there was an overriding public interest in the disclosure of the documents.

43. Finally, the Ombudsman notes and applauds the fact that, in its opinion, the Commission decided to grant full access to the documents requested, and that copies were provided.

44. In view of his above findings, the Ombudsman finds no instance of maladministration corresponding to the complainant's allegation.

C. Conclusions

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

In light of the above considerations, Ombudsman finds that the Commission failed to respect the provisions of the Regulation regarding the timeliness of handling requests for access to documents in the following three respects: (i) It further extended the already extended deadline to deal with the complainant's confirmatory application by relying on Article 6(3) of the Regulation, but without putting forward any valid or adequate explanations; (ii) it purported to apply the possibility of extending the deadline in accordance with Article 8(2) of the Regulation, but did so without providing any valid and adequate explanations; and (iii) it grossly delayed its reply to the complainant by taking five months to reach a decision on the latter's application. These actions of the Commission constituted instances of maladministration.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg, on 28 May 2010

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

[2] See ibid.

[3] E.g. 15 + 15 working days for the initial application and 15 + 15 working days for the confirmatory application.

[4] Article 8(2) of the Regulation provides: "In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given."

[5] Article 6(3) of the Regulation provides: "In the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution."

[6] The first paragraph of Article 4(3) of the Regulation provides: "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

[7] 2001/937/EC, ECSC, Euratom: Commission Decision of 5 December 2001 amending its rules of procedure (notified under document number C(2001) 3714) OJ 2001 L 345 p. 94., concerning the application 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.

[8] Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-01121, para 101.

[9] See Case C-189/98 P Netherlands and van der Wal v Commission [2000] ECR I-1, paragraph 27, and Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 55, and the case-law cited therein. And Case T-36/04, API v Commission judgment of 12 September 2007 [not yet published in the ECR], paragraph 54 (citing cases), referred to in decision on complaint 3402/2004/PB, point 1.7.

[10] See decisions of the European Ombudsman 2821/2004/OV and 2403/2003/MF, available on the Ombudsman's website (http://www.ombudsman.europa.eu).