The background to the complaint

1. The complaints concern refusals to grant requests for public access to documents. Given the close connection between the two complaints, both of which relate to a single original request, the Ombudsman will deal with both complaints in the present decision.

2. On 14 November 2011, the complainant, a Belgian citizen, applied to the European Commission for public access to documents[1]. The documents sought had been drafted in the context of the preparation of the Commission's proposals for legislation concerning the European Supervisory Authorities[2] and rating agencies[3], as well as the minutes of the meetings of the heads of the Commissioners' cabinets in relation thereto.

3. On the same day, the Commission informed the complainant that it understood his request to relate to documents concerning inter-service consultations, Legal Service opinions, the minutes of the special weekly meetings of the heads of the Commissioners' cabinets, all documents drafted after the adoption of the respective legislation, and documents received by the Commission from third parties and the replies given thereto.

4. The Commission then registered the complainant's request under three reference numbers: Gestdem 5763/2011 as regards the Commission's proposals for Regulations concerning the European Supervisory Authorities, Gestdem 5764/2011 as regards the Commission's proposals for Regulations concerning the rating agencies, and Gestdem 5774/2011 as regards the minutes of the special meetings of the heads of the Commissioners' cabinets.

5. The Commission also added that, in view of the number of documents requested and the need to carry out searches, as well as internal and external consultations, it was obliged to extend the time-limit to reply by fifteen working days.

6. On 25 November 2011, the Secretariat-General of the Commission replied to the complainant's access request 5774/2011 as regards the minutes of the special meetings of the heads of the Commissioners' cabinets. The complainant has not challenged the validity of the Commission's reply.

7. On 6 December 2011, the Commission granted access to documents held by its Directorate-General for Internal Market and Services ('DG MARKT') falling within the complainant's access request 5763/2011 as regards the European Supervisory Authorities.

8. On 10 January 2012, in the absence of an explicit decision by the Commission on his access request 5764/2011, the complainant again requested the Commission to grant him access to the documents.

9. On 27 January 2012, the Legal Service of the Commission granted access to three additional documents, falling within the access request 5763/2011.

10. On 31 January 2012, the Commission extended the deadline (by 15 working days) for reply to the complainant's confirmatory application concerning his access request 5764/2011.

11. On 13 February 2012, the complainant lodged a confirmatory application concerning his access request 5763/2011.

12. On 5 March 2012, the Commission extended the deadline (by 15 working days) for a reply to the complainant's confirmatory application concerning access request 5763/2011.

13. On 20 March 2012, the complainant complained to the Ombudsman about the Commission's failure to deal properly with his access request 5764/2011.

14. On 26 March 2012, the Commission informed the complainant about difficulties encountered in handling his access request 5763/2011 and the additional delay this entailed.

15. On 4 May 2012, the Ombudsman opened an inquiry (complaint 636/2012/DK) concerning the Commission's handling of the complainant's access requests 5764/2011.

16. On 10 May 2012, considering that the Commission's reply of 26 March 2011 constituted an implicit refusal to grant access, the complainant turned to the Ombudsman to complain about the Commission's failure to deal with his access request 5763/2011.

17. On 21 June 2012, the Ombudsman opened an inquiry (complaint 1076/2012/DK) concerning the Commission's handling of the complainant's access requests 5763/2011.

The subject matter of the inquiries

18. In relation to complaints 636/2012/DK and 1076/2012/DK, the Ombudsman opened inquiries into identical allegations and claims, namely:

Allegation:

The Commission failed to give the complainant public access to the documents requested.

Claim:

The Commission should agree to the complainant's requests for public access to documents.

The inquiries

Complaint 626/2012/DK - concerning the complainant's access requests 5764/2011

19. On 4 May 2012, the Ombudsman asked the Commission to submit an opinion on the complaint. The Commission submitted its opinion on 17 July 2012. The opinion was forwarded to the complainant, who submitted his observations on 8 September 2012.

Complaint 1076/2012/DK - concerning the complainant's access requests 5763/2011

20. On 21 June 2012, the Ombudsman asked the Commission to submit an opinion on the complaint. The Commission submitted its opinion on 25 October 2012. The opinion was forwarded to the complainant, who submitted his observations on 29 November 2012. On 16 April 2013, having received the Commission's reply to his confirmatory application, the complainant sent further observations.

The Ombudsman's analysis and conclusions

Preliminary remarks

21. On 23 July 2012 and 3 April 2013, that is after the Ombudsman had opened the inquiries, the Commission granted access to the documents concerned. The Commission thus considers that it has now granted public access to all the requested documents. The complainant has questioned, however, whether the Commission has identified and granted access to all the documents requested by him, in particular the documents at issue in complaint 636/2012/DK.

22. The Ombudsman notes that the right of public access to documents only applies to documents in the possession of an institution and that there exists a presumption of legality as regards an institution's statement that a document does not exist.

23. The complainant argues that it is logical and necessary that certain documents must exist. He makes reference to the written views which he considers must have been expressed by various Directorates Generals of the Commission in relation to the legislative proposals. The Ombudsman notes, however, that there was no legal requirement on the Directorates Generals in question to submit views in writing in relation to the legislative proposals.

24. As such, the Ombudsman sees no reason to call into question the view of the Commission that it has now provided the complainant with access to all the requested documents.

25. The complainant also argues that his complaint concerns procedural aspects of the Commission's handling of his request. Given that these procedural aspects of the Commission's handling of the complainant's request resulted in the denial of public access to certain documents for more than one year after the initial request was made, the Ombudsman considers it appropriate to understand the allegation of the complainant as encompassing these procedural aspects.

26. However, as regards the complainant's argument that the Commission wrongly decided to split his initial single request into several requests, the Ombudsman accepts that this was a reasonable administrative action in all of the circumstances.

27. Further, as regards the complainant's argument that the Commission initially wrongly replied to him in English, rather than in French (the complainant had made his request for access in French), the Ombudsman notes the following. Principles of good administration require that institutions ensure that a citizen of the Union who writes to the institution in one of the Treaty languages receives an answer in the same language.[4] In the present case, the Commission initially failed to observe this requirement when it sent its letter dated 5 December 2011 in English. However, the Ombudsman notes that the Commission reacted swiftly to correct its mistake. In fact, only one day after the complainant made the Commission aware of his dissatisfaction with the reply he had received in English, the Commission sent him an e-mail in French to apologise for its mistake. In these circumstances, and especially in view of the fact that the Commission apologised for its mistake, the Ombudsman considers that this aspect of the complaint requires no further inquiries.

A. Allegation that the Commission failed to give the complainant public access to the documents requested

Arguments presented to the Ombudsman

Concerning complaint 626/2012/DK: access request 5764/2011

28. In its opinion of 17 July 2012, the Commission acknowledged that it did not adopt a confirmatory decision on the complainant's request within the prescribed time-limits. However, the Commission stated that it kept the complainant informed about the difficulties it encountered when dealing with the request. Indeed, it underlined, the scope of the complainant's request for public access to documents was large and the retrieval and analysis of the documents concerned entailed a time-consuming process involving several internal services. The Commission stated that it was, at the time of submitting its opinion on the present complaint, still in the process of finalising its reply concerning the documents drafted for the preparation of the Commission's proposal on the rating agencies. The Commission concluded its opinion by stating that it expected to send its reply to the complainant in early July 2012[5].

29. In his observations, the complainant pointed out that due to the Commission's own decision to split his single request into several requests, the dossiers were dealt with by different services of the Commission. Nevertheless, the Commission failed to follow the reasoning behind its own decision when, in its opinion in the present complaint, it also addressed the handling of the other two access requests that were not part of the present inquiry by the Ombudsman.

30. As regards the substance of the case, the complainant observed that the time-limits provided for in Regulation 1049/2001 are procedural deadlines from which neither the applicant, nor the institution can derogate. He insisted that Article 7 of Regulation 1049/2001 clearly states that the institutions must, within fifteen working days, either grant access to the documents requested or state the reasons for the total or partial refusal. The absence of a reply is considered to be an implicit rejection of the access request, which entitles the applicant to request a review from the institution.

31. The complainant added that the Commission cannot use Article 6(3) of Regulation 1049/2001[6] to extend further the time-limit for a reply. He stated that Article 6(3) only applies to requests for a very long document or to a very large number of documents. However, he noted, the Commission has never stated that this was the case as regards his request.

32. In light of the above, the complainant contests the Commission's view that the complainant had rejected its proposal for a fair solution: in fact, he insisted, the Commission had no grounds to make such a proposal and it certainly did not consult him before making such a proposal.

33. As regards the time it took the Commission to deal with his request, the complainant observed that he did not receive the requested documents until eight months after he made his initial request. Unfortunately, he noted, the Commission's opinion on the present complaint did not offer any explanations as regards this delay.

34. The complainant went on to observe that the Commission considered that his request related to a large number of documents. He noted, however, that the Commission eventually granted him access to 20 documents only. The complainant found it difficult to understand how the Commission could claim that his request related to a very large number of documents, given that it concerned just 20 documents. In the alternative, the complainant considered, the Commission must not have granted him access to all the requested documents.

35. As regards the Commission's argument that it had to carry out specific searches to find the documents concerned, the complainant remarked that these documents should be part of the file kept by the official of the Commission in charge of the matter. In any case, they should be archived electronically. He therefore could not understand why the Commission took so long to review the 20 documents. As regards the Commission's argument that dealing with his request required the input of several internal units of the Commission, the complainant observed that the documents he finally received are all authored by DG MARKT. He therefore wondered why internal and external consultations were necessary.

36. Finally, the complainant observed that he was granted access to the minutes of the Inter-service consultation of 21 May 2010, and that this document does not mention the replies of the different Commission's Directorates-General consulted during the inter-service consultation, which are indispensable parts of such a consultation. The complainant therefore queried whether the Commission had granted him access to all the documents concerned.

Concerning complaint 1076/2012/DK: access request 5763/2011

37. In its opinion of 25 October 2012, the Commission again acknowledged that it did not adopt a confirmatory decision on the complainant's request within the prescribed time-limits. However, the Commission noted that it had explained why the handling of his access request required more time than allowed under Regulation 1049/2001. In fact, the scope of the complainant's request was large and the retrieval and analysis of the documents concerned entailed a time-consuming process. The Commission noted that it granted access to 11 documents in its letter of 6 December 2011, and to a further 3 documents in its letter of 27 January 2012. As regards the complainant's confirmatory application, the Commission stated that it was in the process of finalising the analysis of the documents concerned and that it was likely that the final decision would be taken in the course of October 2012[7].

38. In his observations on the Commission's opinion, the complainant observed that more than a year after he submitted his access request, he still had not received the requested documents.

The Ombudsman's assessment

39. In light of the fact that the complainant has now been granted access to the requested documents, the Ombudsman limits the scope of her inquiry to the time it took the Commission to deal with the access requests.

40. Regulation 1049/2001 establishes time-limits for handling requests for access to documents.

41. Article 7 of Regulation 1049/2001 provides that:

"An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. 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."

42. Article 8(1) of Regulation 1049/2001 provides that:

"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 in accordance (…) within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman (…)."

43. Article 7(3) and 8(2) of Regulation 1049/2001 provide that:

"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."

44. The complainant submitted a single request for access to documents on 14 November 2011. He was not provided with access to all the documents requested until 3 April 2013. That is 506 calendar days later.

45. The Commission has argued that the initial extensions of the time limits for responding were justified on the grounds of the number of documents requested, and the need to carry out searches and consultations. Irrespective of whether this view was correct, and in this respect the Ombudsman notes the reasonable arguments of the complainant as regards the limited number of documents that he eventually received, it is difficult to accept that the request of the complainant was so large as to require 506 calendar days to be completed.

46. The Ombudsman therefore finds, in the case of both access requests at issue here, that the Commission manifestly failed to respect the time-limits provided for in Regulation 1049/2001.

47. The Ombudsman is of the view that if the Commission is unable to meet a request within the time periods set out in Regulation 1049/2001, it should always provide detailed reasons for extending the time-limits. General explanations - for example that the Commission needs to carry out searches and internal and external consultations, or that it has not yet collected all the necessary elements needed to formulate a definitive reply - cannot satisfy this requirement, especially when the time periods set out in Regulation 1049/2001 are manifestly exceeded. Such statements do not contain sufficient information to enable a review of whether an extension is justified in the specific case. For example, they do not explain why the Commission could not obtain the necessary information to enable it to deal with the request.

48. Article 6(3) of Regulation 1049/2001 provides that "the institution concerned may confer with the applicant informally with a view to finding a fair solution". It is possible that such a fair solution would encompass an agreement to extend the deadlines set out in Regulation 1049/2001. However, Article 6(3) cannot be interpreted as providing an institution with the option of unilaterally imposing what it perceives to be a "fair solution".

49. In the present case, however, the Commission imposed the additional time period unilaterally. Indeed, as regards the period of time that was eventually required to deal completely with the request, the Commission did not even attempt to reach an agreement with the complainant.

50. In short, the Ombudsman notes that the Commission took more than twenty months to deal with the complainant's access request 5763/2011, and took seven months to deal with the complainant's access request 5764/2011. The Ombudsman considers that this is a flagrant disregard of the right of access and that the delay cannot be justified.

51. In light of the above considerations, the Ombudsman finds that the Commission manifestly failed to respect the provisions of Regulation 1049/2001 regarding the time-limits for handling the complainant' request for access to documents. This constituted an instance of maladministration and the Ombudsman will make a relevant critical remark below.

B. Conclusions

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

The Commission manifestly failed to respect the provisions of Regulation 1049/2001 regarding the time-limits for handling requests for access to documents.

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

 

Emily O'Reilly

Done in Strasbourg on 29 January 2014

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[1] He made the request 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, OJ 2001 L 145, p. 43.

[2] Namely, the European Banking Authority, the European Securities and Markets Authority and the European Insurance and Occupational Pensions Authority.

[3] In November 2011, the Commission put forward proposals to reinforce the regulatory framework on credit rating agencies. This gave rise, in 2013, to Regulation 462/2013 and Directive 2013/14/EU.

[4] Article 13 of the European Code of Good Administrative Behaviour provides that: "The official shall ensure that every citizen of the Union or any member of the public who writes to the institution in one of the Treaty languages receives an answer in the same language. The same shall apply as far as possible to legal persons such as associations (NGOs) and companies."

[5] The Commission actually sent its reply to the complainant's confirmatory application on 23 July 2012.

[6] Article 6(3) of Regulation 1049/2001 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."

[7] The Commission sent its final reply to the complainant on 3 April 2013.