(Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1])

THE BACKGROUND TO THE COMPLAINT

1. The present case concerns two issues. First, a request for access to documents submitted to the European Commission under Regulation 1049/2001.[2] Second, the Commission's handling of an application to amend the specification for the production of an Italian cheese submitted by the Italian Ministry of Agriculture (hereinafter 'the Italian Ministry') in June 2003.

2. On 4 June 2003, the Italian Ministry sent to the Commission an application to amend the production specification of Provolone Valpadana cheese.[3] By Decree of 19 September 2003, published in the Italian Official Journal No 234 of 8 October 2003, the Italian Ministry authorised transitional measures to amend the specification at national level.

3. On 15 September 2004, the complainant wrote to the Commission. He made observations on the application submitted by the Italian Ministry and asked the Commission (i) to reject its application of 4 June 2003 and (ii) to ask the Italian Ministry to repeal the Decree of 19 September 2003. On 12 November 2004, the Commission replied to his letter, stating that it would deal with the application in accordance with Regulation 2081/92.[4]

4. On 26 February 2007, the complainant requested the Commission to give him access to all the documents it had in its possession concerning the procedure it was carrying out in relation to the Italian Ministry's above-mentioned application. He also reiterated his request for the Commission to reject the application to amend the production specification, and asked to be informed about the state of play of the procedure.

5. On 3 April 2007, the Commission informed the complainant that the Italian authorities were currently examining the dossier concerning the procedure in question. The Commission's services would then evaluate it, in accordance with Regulation 1898/2006.[5] The Commission added that the request for access to documents should be submitted to the Italian authorities, which were in possession of the relevant dossier.

6. The complainant, therefore, contacted the Italian Ministry and asked whether, as he understood from the Commission's above-mentioned letter, the relevant file was still in the national authorities' hands or whether it had been transmitted to the Commission and on which date. In its reply of 20 September 2007, the Italian Ministry stated that it had submitted the application to the Commission in June 2003, but the latter had not yet replied.

7. On 30 January 2008, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

8. On 6 March 2008, the Ombudsman opened an inquiry into the following allegations and claim.

Allegations:

1. The Commission's refusal to grant the complainant access to the requested documents was erroneous and illegal since it appeared that the relevant dossier was submitted in due form to the institution by the Italian Ministry.
2. The Commission denied access to the requested documents on the erroneous grounds that the relevant dossier was not in its possession.
3. The Commission failed to take a decision concerning the request for modification of the rules governing the production of Provolone Valpadana, with the consequence that a transitory measure was prolonged sine die.

Claims:

1. The Commission should find the relevant dossier transmitted to it by the Italian Ministry for agriculture.
2. The Commission should (i) grant the complainant access to the requested documents and (ii) inform him of the state of play of the relevant procedure.
3. The Commission should adopt a final decision concerning the request for modification of the rules governing the manufacture of Provolone Valpadana.

THE INQUIRY

9. The complaint was forwarded to the Commission for an opinion. On 3 September 2008, the Commission sent its opinion, which was then forwarded to the complainant for his observations. On 23 September 2008, the Ombudsman received the complainant's observations.

10. On 17 June 2009, the Ombudsman's services asked the relevant Commission service whether, in the meantime, the Commission had taken a final decision on the Italian Ministry's application. In reply, the Commission stated that it had not yet adopted a position, and did not provide information about a possible deadline for doing so.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegations concerning the Commission's wrong handling of the application for access to documents and corresponding claims

Arguments presented to the Ombudsman

The complainant's position

11. The complainant alleged that the Commission's refusal to grant his client access to the requested documents was erroneous and illegal. In support of his allegation, the complainant argued that, in its letter of 20 September 2007, the Italian Ministry stated that the documents concerning the application had been submitted to the Commission in June 2003. If this was true, the institution denied access to the requested documents on the erroneous ground that they were not in its possession.

The Commission's opinion

12. In its opinion, the Commission made the following points.

13. It never stated that it did not have or had not received the dossier on the application to amend the specification for the production of Provolone Valpadana. It stated that the Italian authorities' application would be evaluated by the Commission's services, once the dossier was complete. Accordingly, there was no need to "find" the dossier, as claimed by the complainant.

14. The letter of 15 September 2004 from the complainant to the Commission did not contain a request for access to documents. His letter of 26 February 2007 was understood by the institution as a request for information about the progress of the procedure in question. The Commission's services replied on 3 April and on 12 June 2007. The complainant did not avail himself of the procedure foreseen by Regulation 1049/2001 to challenge the Commission's reply. Given these circumstances, the Commission's replies cannot be considered as a refusal of access to documents in the sense of Regulation 1049/2001. It was only in the complaint to the Ombudsman that the complainant clarified that the Commission "should have send to his client a copy of the documents and submits a request to that end."[6]

15. Furthermore, the Italian Ministry possesses copies of all the documentation submitted in the framework of the procedure relating to its application. Accordingly, this documentation is available for consultation at the national level.

The complainant's observations

16. In his observations, the complainant stated that, even accepting that the letter of 26 February 2007 could have been understood by the Commission as a request for information only, the Commission omitted to mention a further letter of 10 May 2007. In this letter, sent by registered mail, he clarified the possible misunderstanding in the interpretation of his letter of 26 February 2007 and reiterated his request for access to documents. More specifically, he asked the Commission to send him a copy of the documentation relating to the acts it had adopted in the framework of the procedure concerning the application submitted by the Italian Ministry.[7]

17. The fact that, as stated by the Commission, the request for access to documents could have been addressed to the Italian Ministry of Agriculture, does not exempt the Commission from dealing with an application for access to documents. Regulation 1049/2001 does not contain any provision which authorises the institution concerned to refrain from dealing with applications for access to documents when they can be addressed to national authorities. Furthermore, the complainant emphasised that his request for access to documents covered the documentation relating to the acts adopted by the Commission in the framework of the procedure following the Italian Ministry's application. This documentation could, therefore, reasonably include internal documents of the Commission, such as, notes or technical reports. It was not, therefore, obvious that they would be in the possession of the national authorities.

The Ombudsman's assessment

18. Regulation 1049/2001 sets out the rules regarding public access to documents held by the Community institutions.

19. Article 7 stipulates that:

"[W]ithin 15 working days from the registration of the application, the institution shall either grant access to the documents requested ... or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his of her right to make a confirmatory application ...

... In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution's reply, make a confirmatory application asking the institution to reconsider its position."

20. Article 8 establishes how to deal with a confirmatory application:

"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 with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal ..."

21. In the present case and in accordance with Article 7 of the above Regulation, the complainant submitted an application for access to documents by letter dated 26 February 2007. In a further letter dated 10 May 2007, he clarified the Commission's possible misinterpretation of his previous letter and explicitly reiterated his request for access to documents.

22. However, it did not emerge from the information provided to the Ombudsman in his complaint that the complainant made a confirmatory application to challenge the Commission's replies of 3 April and of 12 June 2007. The Commission's statement that the complainant did not avail himself of the procedure foreseen by Regulation 1049/2001 to challenge the institution's reply is, therefore, correct.

23. Before examining the Commission's handling of the complainant's request, and in order to avoid any possible misunderstanding, the Ombudsman considers it important to make the following clarifications.

24. Article 2(4) of his Statute establishes that "a complaint [to the Ombudsman] must be preceded by the appropriate administrative approaches to the institutions and bodies concerned." In complaints concerning access to documents, the Ombudsman, therefore, has to verify whether the complainant acted in accordance with the procedure laid down in Regulation 1049/2001 before turning to him.

25. This means that the Ombudsman normally only opens a full inquiry into cases where it is clear that a confirmatory application has been made. However, it is possible that the specific facts of a case may justify opening an inquiry without evidence of such a confirmatory application having been made.

26. In the present case, it appeared that the Commission service essentially informed the complainant that it did not hold the documents requested by him. It would clearly have been inappropriate for the Ombudsman to inform the complainant that he should make a confirmatory application for documents that the Commission apparently did not have in its possession. In light of the correspondence presented to the Ombudsman in this case, and in light of the Commission's well-established practices for handling access requests, it was reasonable to interpret the Commission's initial response in the aforementioned way. This is why the Ombudsman opened his inquiry when the complainant alleged that the Commission's refusal to grant his client access to the requested documents was erroneous and illegal, since it appeared that the relevant dossier was submitted in due form to the institution by the Italian Ministry.

27. It is undisputed that the Italian Ministry submitted the dossier concerning its application in June 2003. Therefore, the Commission's statement that the complainant should submit his request for access to documents to the Italian authorities was irrelevant. The fact that a request for access to documents can be submitted to other authorities does not exempt the institution concerned from dealing with an application submitted in accordance with Regulation 1049/2001.

28. In light of the above, the Ombudsman concludes that the complainant's allegation is justified. The Ombudsman will, therefore, make a draft recommendation below.

B. Allegation that the Commission failed to take a decision on the application submitted by the Italian Ministry, and corresponding claim

Arguments presented to the Ombudsman

The complainant's position

29. In support of his allegation, the complainant argued that the Commission's delay in handling the Italian Ministry's application in June 2003 resulted in the transitory measures adopted by the Italian authorities in October 2003 being prolonged sine die.

The Commission's opinion

30. The Commission explained that it had received a high number of applications for the recognition of designations of origin, geographical indications and applications to amend specifications. Some of them were still pending when Regulation (EC) No 383/2004[8] entered into force on 15 March 2004. The Commission, therefore, requested Member States to send the relevant forms, including those for amendments to specifications already submitted. Italy was among those Member States. The Italian authorities did not act on the request and the Commission was, as a result, prevented from carrying out the initial analysis of the application submitted in June 2003 and, subsequently, from publishing the text concerned, in accordance with the legislation in force.

31. On 14 March 2008, the Commission wrote to the Italian authorities again and invited them to provide the documents requested by letter of 1 March 2004 within two months. The Italian authorities replied on 6 May 2008.

32. The Commission outlined that it will adopt a final decision regarding the Italian Ministry's application, in accordance with the relevant rules.

The complainant's observations

33. In his observations, the complainant maintained his allegation and the corresponding claim. He further considered that the Commission cannot rely on its workload to justify the delay in dealing with the application submitted by the Italian Ministry in 2003. The complainant noted that Provolone Valpadana was still on sale, on the basis of the Decree adopted by the Italian authorities in October 2003, which foresaw transitional measures only.

The Ombudsman's assessment

34. When the Italian Ministry submitted an application to amend the specification for the production of the Provolone Valpadana, the relevant legislation in force was Regulation 2081/92.[9] It set out the rules on the protection of geographical indications and designation of origin for agricultural products and foodstuffs. This Regulation was replaced by Regulation 510/2006[10], which entered into force on 31 March 2006.

35. The two Regulations lay down similar rules regarding the publication of applications for the recognition of designation of origin, their examination by the Commission and any objections submitted by third parties against the Commission's decision in this regard.

36. Article 4 of both Regulations lays down the content and the requirements that an agricultural product or foodstuff has to comply with to be eligible for a protected designation of origin. An application for registration might be lodged by a group, in accordance with Article 5 of those Regulations.

37. The Commission has to verify, by appropriate means, whether the registration application is justified and meets the required conditions. In accordance with Article 6 of Regulation 2081/92, the period for carrying out this verification was six months. According to Regulation 510/2006, the Commission's verification should not exceed a period of 12 months.

38. Article 9 of both Regulations foresees the possibility to apply for approval of an amendment to specifications for a specific product. As stated by both Regulations, the procedural rules which have to be applied in such a case are the same rules applicable for the recognition of designation of origin.

39. In the case in question, the Italian Ministry submitted its application in June 2003.

40. From its opinion, it emerged that the Commission requested information from the Member States, including Italy, on 15 March 2004. The Ombudsman understands that this request for information was submitted in the framework of the verification process that the institution has to carry out when it receives an application to amend a specification.

41. In the absence of a reply, the Commission wrote a second letter to the Italian authorities in March 2008, which replied on 6 May 2008.

42. The Ombudsman notes that, in its opinion, the Commission made a generic reference to 'informal requests' made by its services to the Italian authorities 'at various meetings', which apparently took place between 2004 and 2008. However, it did not put forward any specific and concrete arguments that could explain the omission to adopt a decision during the above period. Specifically, it gave no information or explanation as to how such an omission could be compatible with the deadlines laid down in the above mentioned Regulations.

43. In light of the deadlines foreseen in the Regulations referred to above, and in the absence of any convincing arguments from the Commission, the Ombudsman concludes that the Commission failed to provide a valid and adequate justification for not having taken a decision on the application submitted by the Italian Ministry in June 2003. He will, therefore, make a corresponding draft recommendation below.

B. The draft recommendation

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendation to the European Commission:

(1) The Commission should take a decision on the complainant's request for access to documents corresponding to the decision it would have taken in response to a confirmatory application.

Given that the requested documents appear to include documents originating from Italy, the Ombudsman recalls that the Court of Justice in Case Sweden v. Commission[11] laid down precise rules for the application of Article 4(5) of Regulation 1049/2001.[12]

(2) The Commission should conclude its examination on the application submitted by the Italian Ministry in June 2003 as soon as possible, and by no later than 31 January 2010. If the Commission considers that it cannot respect this deadline, it should provide valid and adequate reasons why.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 31 January 2010. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 12 October 2009

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] 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.

[3] On the basis of Council Regulation (EEC) No 2081/92 of 14 July 1992, this cheese was assigned the protection of designations of origin and of geographical indications.

[4] Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, OJ 1992, L 2008, p.1.

[5] Commission Regulation (EC) No 1898/2006 of 14 December 2006 laying down detailed rules of implementation of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, OJ 2006, L 93, p. 1.

[6] Quoted from the Commission's opinion.

[7] "Confidando che l'equivoco sia chiarito sono con la presente a reiterare l'istanza di accesso agli atti già contenuta nella mia ultima del 26 febbraio 2007, chiedendo che la Spett.le Commissione europea voglia indicare quali atti ha adottato in relazione alla richiesta di modifica del disciplinare di produzione della denominazione di origine Provolone Valpadana che contempla l'impiego dell'additivo E239 nella nota DOP, trasmettendomi in copia la relativa documentazione".

[8] Regulation (EC) No 383/2004 of 1 March 2004 laying down detailed rules for applying Council Regulation (EEC) No 2081/92 as regards the summary of the main points of the product specifications OJ 2004, l64, pp. 16-20.

[9] Referred above.

[10] Referred above.

[11] Case C-64/05 P Sweden v Commission [2007] ECR I-11389, paragraphs 75-77.

[12] Article 4(5) provides that "A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement."