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

THE COMPLAINT

In the 1990s, the complainant, Internationaler Hilfsfonds e.V., a German NGO(2), made various requests for financial assistance to the European Commission, including the Commission's Humanitarian Aid Department ("ECHO"). These requests gave rise to a number of complaints to the European Ombudsman (e.g., complaints 745/2004/GG and 2862/2004/GG) and to litigation before the Community courts (e.g., Case T-372/02 and Case C-521/03 P).

In these cases, a letter addressed by the Auswärtiges Amt (the German Foreign Office) to ECHO on 15 March 1995 played a certain role. This letter (which was drafted in English) concerns the following comment with regard to the complainant:

"Their activities have given reasons for official prosecution, which are still under way."

In a letter addressed to ECHO on 15 November 2001, the German Foreign Office pointed out, with reference to its letter of 15 March 1995, "that according to data provided to us, the Public Prosecutors Office at the Regional Court in Gießen dropped the charges against Dr. Koch and three other employees of the 'Internationaler Hilfsfonds e.V. on 30 April 1996."

In its submissions to the Ombudsman and the Community courts in the above-mentioned cases, the Commission referred to "criminal proceedings", a "prosecution" and "charges" that had been brought against the complainant, its chairman or other members of the complainant in Germany.

The relevant statements are the following(3):

"It transpired from late correspondence that the charges had been brought against Dr. Koch and three other employees of Internationaler Hilfsfonds (..)."

(Point 40 of the Commission's defence in Case T-372/02 P)

"In the light of the information received from the German Foreign Office, giving information about an ongoing prosecution, ECHO decided to suspend the treatment of Internationaler Hilfsfonds' application pending further information on the ongoing prosecution."

(Point 45 of the Commission's defence in Case T-372/02 P)

"With regard to the question of the probity of the directors, the Commission was particularly concerned by the fact that, at the time when the application was presented, Mr. Koch omitted to mention that criminal proceedings were open against him and three other members of the staff of Internationaler Hilfsfonds. Since this was undoubtedly a relevant fact which had been omitted in the application, the Commission would have been quite entitled, once this fact came to light, to reject the applicant's application in limine."

(Point 105 of the Commission's defence in Case T-372/02 P)

"...Dr. Koch (President of IH) was trying to gain access to documents in the Commission's possession in order to discover who in the Auswärtiges Amt had informed the Commission in 1995 that a prosecution was pending against Internationaler Hilfsfonds."

(Point 86 of the Commission's response in Case C-521/03 P)

"It should be noted that one purpose - however secondary - of the e-mail of 8.8.2001 was to request updated information on any developments in the judicial proceeding against IH in Germany."

(Commission's opinion of 24 June 2004 on complaint 745/2004/GG)(4)

"(...) the Commission is obliged to point out that at the time of presenting his application to sign the FPA [Framework Partnership Agreement], criminal procedures were open against Mr Koch in Germany."

(Commission's opinion of 13 January 2005 on complaint 2862/2004/GG)

According to the complainant, the prosecutor's office at the Landgericht Gießen had merely conducted a preliminary investigation ("Ermittlungsverfahren") against Dr. Koch and three other persons, and not itself (i.e., the complainant). Furthermore, this preliminary investigation had been terminated in the favour of the persons concerned on 30 April 1996. The complainant stressed that the Commission had been informed accordingly on various occasions, starting with a letter sent to the Commission on 21 May 1996.

In its complaint to the Ombudsman, the complainant therefore alleged that the Commission's references to "criminal proceedings", a "prosecution" and "charges" that had been brought against the complainant, its chairman or other members of the complainant were incorrect, deliberately misleading and defamatory. It claimed that the Commission should take the necessary corrective action, in particular by undertaking to refrain from making such statements in the future.

The complainant pointed out that its lawyer had asked the Commission, by letter of 5 August 2005, to sign such an undertaking by 19 August 2005. According to the complainant, no reply had been given to this letter by the time the present complaint was lodged in September 2005.

The complainant stressed that as a charitable organisation, it was particularly dependent on being trusted by the public. Spreading incorrect information, which was prone to undermine this trust, was therefore a very serious matter.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

In its reply in case 745/204/GG, the Commission had not referred to "criminal proceedings", "prosecution" or "charges", but instead used the term "judicial proceedings". The Commission had used the term "criminal procedure" in its opinion in case 2862/2004/GG. As regards the Commission's submission to the Court of First Instance in Case T-372/02, the Commission did make references to "criminal proceedings", "prosecution" and "charges".

However, any statement made in the Commission's submissions to the Court of First Instance or the Court of Justice in the course of legal proceedings such as Case T-372/02 was made exclusively for the purposes of the procedure and the information provided within the written procedure was only known by the parties and the Court. Third parties did not have access to it. Accordingly, the statements made to the Court were only open to review by the Court and were thus inadmissible for the purposes of the present complaint.

The Commission would nevertheless address the complainant's remarks, in a spirit of good cooperation with the Ombudsman.

Firstly, the references concerned were based on information received in a letter addressed to the Commission by the German Foreign Office on 15 March 1995. This letter states with regard to the complainant: "Their activities have given reasons for official prosecution, which are still under way."

The Court of First Instance could not have been and indeed was not misled by the Commission's statement in its defence as regards the terms used by the German authorities, as the Commission enclosed with its submission a copy of the above-mentioned letter of 15 March 1995. Furthermore, in the document lodged by the complainant to the Court of First Instance on 4 July 2003, it had replied to this specific passage of the Commission's defence, as well as other passages which the complainant considered to be based on a "series of misgivings, misunderstandings and even slanders".

This document had been included in the file of pleadings by the Court following an express decision of its President. As a result, the Court of First Instance had had at its disposal all relevant elements. In its Order of 15 October 2003, the Court quoted the exact terms used by the German Foreign Office in its letter.

Given that the statements made in the Commission's submissions were only known by the parties and the Court and that no third party had access to them, they could not be considered defamatory.

Similarly, as regards the submissions in the cases before the Ombudsman, the references made by the Commission to "judicial proceedings" and "criminal procedure" were based on the wording of the letter of the German Foreign Office.

A copy of this letter had been provided to the Ombudsman. The reference to "judicial proceedings" made therein could therefore hardly have been misunderstood by the Ombudsman in the way alleged by the complainant.

The complainant's allegation that the Commission's references to "criminal proceedings", a "prosecution" and "charges" in its submissions to the Community courts and to the Ombudsman were incorrect, deliberately misleading and defamatory was thus inadmissible as regards the submissions made to the Community courts, and unfounded in both cases.

The complainants’ observations

The complainant submitted detailed observations (37 pages and various enclosures), which can be summarised as follows:

• The Ombudsman could no longer avoid finding that the Commission had lied and had committed a deliberate fraud.
• Referring to "judicial proceedings" had the same serious meaning as the reference to "criminal proceedings".
• The Commission had intentionally and in bad faith brought to the attention of the Court of First Instance the incorrect information contained in the German Foreign Office's letter of 15 March 1995. By failing to submit the German Foreign Office's letter to the Commission of 15 November 2001, in which the letter of 15 March 1995 was corrected, the Commission had deliberately misguided, deceived and lied to the Court.
• The Court had fallen victim to this deceit, given that point 11 of its Order, which was to be found under the heading "Facts", read as follows: "On 15 March 1995 the Auswärtiges Amt told ECHO in response to that request that IH's activities had given reasons for official prosecution."
• The contents of complaint procedures were accessible to everybody over the internet. The Ombudsman had even presented the incorrect statements of the Commission in exaggerated detail.
• ECHO had spread its wrong accusations against the complainant to a whole series of Directorates-General within the Commission and thus damaged the complainant's reputation beyond what was tolerable.
• The Ombudsman had elevated the incorrect statements made by the Commission to the rank of facts.
• In view of the fact that the Commission had delayed the matter, an apology was now obligatory.

The complainant also made detailed comments on what it considered to be the discriminatory handling of its application by ECHO. It also made comments on issues relating to the Commission's handling of requests for access to documents.

THE DECISION

1 Introductory remarks

1.1 In the 1990s, the complainant, Internationaler Hilfsfonds e.V., a German NGO(5), made various requests for financial assistance to the European Commission, including the Commission's Humanitarian Aid Department ("ECHO"). These requests gave rise to a number of complaints to the European Ombudsman (e.g., complaints 745/2004/GG and 2862/2004/GG) and to litigation before the Community courts (e.g., Case T-372/02 and Case C-521/03 P). In its submissions to the Ombudsman and the Community courts, the Commission referred to "criminal proceedings", a "prosecution" and "charges" that had been brought against the complainant, its chairman or other members of the complainant in Germany.

In its complaint to the Ombudsman, the complainant alleged that these references were incorrect, deliberately misleading and defamatory. It claimed that the Commission should take the necessary corrective action, in particular by undertaking to refrain from making such statements in the future.

1.2 In its opinion, the Commission inter alia noted that in its reply in case 745/204/GG, it had not referred to "criminal proceedings", "prosecution" or "charges", but instead used the term "judicial proceedings". It also noted that it had used the term "criminal procedure" in its opinion in case 2862/2004/GG. In his observations, the complainant submitted that referring to "judicial proceedings" had the same serious meaning as the reference to "criminal proceedings".

1.3 It should be noted that in the opening letter, in which the Ombudsman informed the Commission about the scope of his inquiry, only the terms "criminal proceedings", "prosecution" and "charges" were mentioned. However, it is clear that the complainant also objects to the references made by the Commission to "judicial proceedings" and "criminal procedure". In its opinion, the Commission presented arguments to justify its usage of the said expressions, including the two terms that were not mentioned in the Ombudsman's opening letter. The Ombudsman considers it therefore both legitimate and appropriate to examine the Commission's usage of all five expressions in the present decision.

1.4 In his observations, the complainant raised three issues that clearly go beyond the scope of the inquiry, as it was set out in the opening letter. These issues can be summarised as follows: (i) the Commission had lied and committed deliberate fraud; (ii) by failing to submit to the Court of First Instance the German Foreign Office's letter to the Commission of 15 November 2001, the Commission had deliberately misguided, deceived and lied to the Court; (iii) ECHO had spread its wrong accusations against the complainant to a whole series of Directorates-General within the Commission and thus damaged the complainant's reputation beyond what was tolerable. The complainant also made detailed comments on what it considered to be the discriminatory handling of its application by ECHO and on issues relating to requests for access to documents.

1.5 The present inquiry was opened in order to examine the usage made of certain expressions used by the Commission in its submissions to the Community courts and the Ombudsman. The complainant's observations concern a wide range of further aspects. Dealing with these further issues would in effect require a substantially new inquiry. The Ombudsman therefore considers that it would not be appropriate to extend the scope of the present inquiry so as to cover these additional aspects. Some of the issues to which the complainant referred would in any event appear to be covered by two further inquiries that are currently pending before the Ombudsman (complaint 2283/2004/GG and own-initiative inquiry OI/4/2005/GG).

1.6 In his observations, the complainant stated that it considered that an apology was due from the Commission in the present case. The complainant has thus raised a further claim. The Ombudsman considers that it would not be appropriate to delay the current inquiry by asking the Commission for an additional opinion on this new claim. The complainant remains free to submit a new complaint concerning this issue, after having made the appropriate prior approaches to the Commission. However, given the results of the Ombudsman's inquiry into the present case (see point 2 below), it appears questionable whether an inquiry into any such new complaint would be justified.

1.7 The present inquiry concerns the behaviour of the Commission. In its opinion, the complainant also made comments on the approach of the Court of First Instance and on that of the Ombudsman himself. The Ombudsman therefore considers it useful to make a few comments in order to clarify certain issues.

1.8 As regards the Court of First Instance, the complainant appears to object to the wording of the Order of 15 October 2003 by which it rejected the application in Case T-372/02. According to Article 195 of the EC Treaty, the Ombudsman would not be able to deal with a complaint against a decision of the Court, given that such a complaint would concern the judicial activity of the Community courts.

However, it appears useful to note that the complainant's assumption that the Court made a mistake by inserting a certain sentence in that part of the Order which sets out the relevant facts is in any event clearly erroneous. The relevant part of the Order reads: "On 15 March 1995 the Auswärtiges Amt told ECHO in response to that request that IH's activities had given reasons for official prosecution." The relevant letter of the German Foreign Office was worded as follows: "Their [the complainant's] activities have given reasons for official prosecution, which are still under way." The Court thus manifestly limits itself to stating what actually happened, i.e., that the German Foreign Office provided such information to ECHO, without expressing any views as to whether the statement of the German Foreign Office was correct or not.

1.9 Similar considerations apply as regards the complainant's comments concerning the Ombudsman. It should be noted that already in a letter sent on 8 June 2005, the complainant had criticised, on the same grounds, two passages in the Ombudsman's decisions on complaints 745/2004/GG and 2862/2004/GG. In his reply of 17 June 2005, the Ombudsman explained that these passages contained an account of what the Commission had said, and not the Ombudsman's appraisal of these statements. With a view to avoiding any potential misunderstanding, however remote such risk appeared to be, the Ombudsman declared himself ready to amend the second passage so as to put matters even more clearly(6). The complainant's suggestion that the Ombudsman had elevated incorrect statements made by the Commission to the rank of facts is thus clearly unfounded.

2 Allegedly incorrect, deliberately misleading and defamatory references

2.1 The complainant alleged that the Commission's references, in its submissions to the Community courts and to the Ombudsman, to "criminal proceedings", "judicial proceedings", a "criminal procedure", a "prosecution" and "charges" that had been brought against the complainant, its chairman or other members of the complainant were incorrect, deliberately misleading and defamatory. It claimed that the Commission should take the necessary corrective action, in particular by undertaking to refrain from making such statements in the future.

2.2 In its opinion, the Commission took the view that the allegation was inadmissible as regards the submissions made to the Community courts. The Commission further submitted that the allegation was in any event unfounded.

2.3 In his observations, the complainant maintained its allegation.

As regards the admissibility of the allegation

2.4 In view of the position adopted by the Commission, it is therefore necessary to ascertain first of all whether the complaint is indeed inadmissible in so far as the Commission's submissions to the Community courts are concerned.

2.5 In its opinion, the Commission took the view that any statement made in its submissions to the Court of First Instance or the Court of Justice in the course of legal proceedings such as Case T-372/02 was made exclusively for the purposes of the procedure and that the information provided within the written procedure was only known by the parties and the Court. Third parties did not have access to it. Accordingly, the statements made to the court were only open to review by the Court and were thus inadmissible for the purposes of the present complaint.

2.6 The Ombudsman notes that Article 195 of the EC Treaty empowers him to receive complaints “concerning instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.” Given that the present complaint is directed at the Commission, and not at the Court of Justice or the Court of First Instance, the Ombudsman considers that the Commission has not established why he should be unable to deal with the present complaint as regards the submissions made by the Commission to the Community courts. The Ombudsman is of course mindful of the fact that his examination in such cases must take into account the purpose of the above-mentioned provision and that it therefore cannot extend to issues that have been dealt with by these courts themselves. However, it appears that neither the Court of First Instance nor the Court of Justice has addressed the issue as to whether the submissions made to them by the Commission contained incorrect, deliberately misleading and defamatory statements. It is true that the Commission has argued, without being challenged by the complainant on this point, that the complainant had argued before the Court of First Instance that certain passages of the Commission's defence were based on a "series of misgivings, misunderstandings and even slanders". However, even if one were to assume that the complainant thus wished to submit to the Court the same objections that it has raised in the present case, regard would have to be had to the fact that the Court rejected the complainant's application as inadmissible. The Court thus did not deal with the substance of the case.

2.7 In the light of the wording of the complaint, the Ombudsman considers that he needs to examine whether the expressions used by the Commission were (i) incorrect, (ii) deliberately misleading and (iii) defamatory.

Were the expressions used by the Commission incorrect?

2.8 The Ombudsman considers that it is good administrative practice for EU institutions and bodies to take care that their statements are accurate and to correct promptly any errors that may occur.

2.9 Before examining whether this was the case here, the Ombudsman considers it necessary to clarify the facts to which the relevant statements of the Commission refer.

2.10 From the evidence submitted to him, it emerges that the prosecutor's office at the Landgericht Gießen conducted a preliminary investigation ("Ermittlungsverfahren") against Dr. Koch and three other persons, and not against the complainant. It further emerges that this preliminary investigation was terminated in favour of the persons concerned on 30 April 1996. Finally, the Ombudsman notes that it is abundantly clear that the Commission was informed of these facts on various occasions, starting with a letter sent to the Commission on 21 May 1996.

2.11 Under German law, the public prosecutor's office has to investigate where it receives information which leads to the suspicion that a criminal offence may have been committed (§ 160 Strafprozeßordnung - Code of Criminal Procedure). Where this preliminary investigation ("Ermittlungsverfahren") confirms the said suspicion, the public prosecutor's office submits the case to a criminal court and requests the opening of a criminal procedure ("Strafverfahren").

2.12 In view of the above, the Ombudsman considers that none of the expressions used by the Commission was correct. Where a preliminary investigation is conducted, it is not appropriate to refer to "criminal proceedings", "judicial proceedings", a "criminal procedure", a "prosecution" or "charges".

2.13 In view of the above, the statement made in the German Foreign Office's letter of 15 March 1995, according to which there was an "official prosecution", was thus not correct either. However, the fact remains that this statement was made. If the Commission's statements were to be interpreted as merely referring to or quoting the (incorrect) statement of the German Foreign Office, they therefore could not be considered to be incorrect themselves.

2.14 The Ombudsman considers that this is indeed the case as regards the following two statements:

"In the light of the information received from the German Foreign Office, giving information about an ongoing prosecution, ECHO decided to suspend the treatment of Internationaler Hilfsfonds' application pending further information on the ongoing prosecution."

(Point 45 of the Commission's Defence in Case T-372/02 P)

"...Dr. Koch (President of IH) was trying to gain access to documents in the Commission's possession in order to discover who in the Auswärtiges Amt had informed the Commission in 1995 that a prosecution was pending against Internationaler Hilfsfonds."

(Point 86 of the Commission's Response in Case C-521/03 P)

These statements merely refer to the (undisputed) fact that the German Foreign Office had (incorrectly) informed the Commission that a prosecution was pending against the complainant. They thus cannot be considered to be incorrect themselves.

2.15 However, the situation is different as regards the following three statements:

"It transpired from late correspondence that the charges had been brought against Dr. Koch and three other employees of Internationaler Hilfsfonds (..)."

(Point 40 of the Commission's defence in Case T-372/02 P)

"With regard to the question of the probity of the directors, the Commission was particularly concerned by the fact that, at the time when the application was presented, Mr. Koch omitted to mention that criminal proceedings were open against him and three other members of the staff of Internationaler Hilfsfonds. Since this was undoubtedly a relevant fact which had been omitted in the application, the Commission would have been quite entitled, once this fact came to light, to reject the applicant's application in limine."

(Point 105 of the Commission's Defence in Case T-372/02 P)

"(...) the Commission is obliged to point out that at the time of presenting his application to sign the FPA [Framework Partnership Agreement], criminal procedures were open against Mr Koch in Germany."

(Commission's opinion of 13 January 2005 on complaint 2862/2004/GG)

It is immediately apparent that these statements do not refer to any "prosecution" that was allegedly pending against the complainant (as the German Foreign Office had incorrectly claimed in its letter of 15 March 1995), but to "criminal proceedings", "criminal procedures" and "charges". Furthermore, these statements refer to Dr. Koch and three other (unnamed) persons. However, the letter that the German Foreign Office had addressed to ECHO on 15 March 1995 had not mentioned any names of individuals. The relevant statements thus clearly go beyond merely referring to or citing the German Foreign Office's letter of 15 March 1995. The statements are also factually incorrect, since (as explained in point 2.12 above) there were neither "criminal proceedings" nor "criminal procedures" pending against Dr. Koch, nor had "charges" been brought against him.

2.16 It could perhaps be argued that these statements merely reflect the position adopted by the Commission at the relevant time. Given that the Commission had been informed (incorrectly) that a "prosecution" was pending against the complainant, it could be argued that the relevant statements were based on this (incorrect) information and that interpreting the reference to an "official prosecution" made in the German Foreign Office's letter as meaning "criminal proceedings" or a "criminal procedure" was thus not unreasonable at the time.

However, the Ombudsman considers that such an interpretation is excluded for two reasons. First, the relevant statements were made several years after the relevant events and do not make it clear (if that were indeed the case) that they are based on the Commission's knowledge and interpretation at the time. The use of the present tense in the second statement would furthermore appear to confirm that the Commission made these statements on the basis of the knowledge of the facts that it possessed at the time of making its submissions to the Community courts and the Ombudsman (in the period between 2003 and 2005). However, at that time the Commission had long been informed that there had only been a preliminary investigation, not a "criminal proceeding" or a "criminal procedure". Second, the 'information' that there was a prosecution pending against the complainant was contained in the German Foreign Office's letter of 15 March 1995. However, the complainant's application to sign the FPA was formally submitted to ECHO only on 20 March 1996(7). Given that ECHO had not received any further information concerning the complainant from the German Foreign Office since 15 March 1995, the claim that "criminal proceedings" or "criminal procedures" were pending against the complainant at the time when the application to sign the FPA was presented could not possibly be based on the 'information' provided by the German Foreign Office on 15 March 1995, i.e., more than a year earlier.

2.17 The situation is even more obvious as regards the last of the above-mentioned statements, which is worded as follows:

"It should be noted that one purpose - however secondary - of the e-mail of 8.8.2001 was to request updated information on any developments in the judicial proceeding against IH in Germany."

(Commission's opinion of 24 June 2004 on complaint 745/2004/GG)

Since by 2001 the Commission had long been informed that there was no "judicial proceeding" and that the preliminary investigation had been closed in April 1996, the Ombudsman fails to understand why the Commission nevertheless referred to such a "judicial proceeding". This fact is all the more puzzling in view of the fact that even the preliminary investigation that had been carried out only concerned Dr. Koch and three other individuals, but not the complainant (IH) itself.

2.18 In view of the above, the Ombudsman considers that the Commission's references to "criminal proceedings", "judicial proceedings", "criminal procedures" and "charges" in its submissions to the Community courts and himself were incorrect. This constitutes an instance of maladministration.

Were the Commission's statements deliberately misleading?

2.19 As regards the complainant's argument that the relevant statements were deliberately misleading, the Ombudsman takes the view that only the four statements set out in point 2.15 and in point 2.17 need to be considered here, since the statements mentioned in point 2.14 were not incorrect.

2.20 As regards these remaining statements, the Ombudsman considers it useful to point out that there is nothing to show that they actually misled the Community courts. As regards the Ombudsman himself, he can assure the complainant that the Commission's statements did not cause any difficulties to ascertain the actual facts of the case. Moreover, although the relevant statements made by the Commission were incorrect, the Ombudsman does not consider that the complainant has established that the Commission acted with the intention to mislead the Community courts and the Ombudsman when making them. No maladministration can therefore be found in this regard.

Were the Commission's statements defamatory ?

2.21 As regards the complainant's argument that the relevant statements were defamatory, the Ombudsman considers that this would presuppose that they were or could be brought to the attention of third parties.

2.22 Given that the pleadings in cases before the Community courts are not normally accessible to third parties, the Ombudsman considers that any statements made in such pleadings could only be likely to be defamatory if they were repeated in a public hearing. The Ombudsman notes, however, that no oral hearing has taken place in either of the two court cases to which the complainant referred.

2.23 As regards submissions to the Ombudsman, it is true that they are in principle accessible to third parties in cases for which (as in complaints 745/2004/GG and 2862/2004/GG) the complainant has not requested confidential treatment. However, regard should be had to the fact that the Ombudsman rarely receives requests for access to his file on a complaint. As a matter of fact, no such request appears to have been received to date as regards the files on complaints 745/2004/GG and 2862/2004/GG. The Ombudsman therefore considers that any effect resulting in the possibility for third parties to gain access to the Commission's statements via a request for access to the Ombudsman's file is too remote and hypothetical to be relevant in the present context. As regards the possible disclosure of the contents of the Commission's statements through the Ombudsman's decisions, the Ombudsman would like to refer to what has been said in this context above (see point 1.9).

2.24 The Ombudsman considers it useful to make one final remark. Given the importance that the complainant (understandably) attaches to the need to protect its reputation against any damage possibly resulting from statements such as those made by the Commission, the Ombudsman finds it surprising that the Commission’s opinion did not even address the question as to whether these statements were correct. The Ombudsman also finds it difficult to understand why the Commission failed to react to the complainant's request of 5 August 2005, submitted via its lawyers, to confirm that it would no longer make such statements. In its opinion, the Commission submitted that this was the fifth time it was asked to reply to complaints from the complainant in connection with its handling of the application to sign the FPA. The Ombudsman cannot help thinking that the present inquiry could easily have been avoided if the Commission had accepted the complainant's request of 5 August 2005. The complainant has forwarded to the Ombudsman a copy of a letter addressed to it by the Commission on 9 December 2005. According to the Commission, this letter also replies to the said letter of 5 August 2005. The Ombudsman notes, however, that instead of dealing with the request made in this letter, the Commission simply confirmed the position it had adopted. He further notes that the Commission furthermore informed the complainant that any further letters concerning this issue would be considered as being repetitive and would thus not be answered.

3 Conclusion

In view of the above, the Ombudsman makes the following draft recommendation to the Commission, in accordance with Article 3(6) of his Statute:

The draft recommendation

The Commission should acknowledge that its references, in its submissions to the Community courts and to the Ombudsman, to "criminal proceedings", "judicial proceedings", a "criminal procedure" and "charges" that had been brought against the complainant, its chairman or other members of the complainant were incorrect. The Commission should further confirm that it will not use such incorrect references in the future.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 28 February 2007. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 14 December 2006

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) The complainant is sometimes referred to as "IH" in the documents cited in this decision.

(3) The Ombudsman has not received copies of the pleadings before the Community courts. The citations are thus taken from the submissions the complainant made to the Ombudsman in the present case. The Commission has not alleged that these submissions misrepresent what it had put forward in its pleadings.

(4) As regards this last statement, cf. point 1.3 of the decision.

(5) The complainant is sometimes referred to as "IH" in the documents cited in this decision.

(6) The decisions are available on the Ombudsman's website (http://www.ombudsman.europa.eu). The passages concerned are point 2.2 of the decision on complaint 745/2004/GG and point 1.9 of the decision on complaint 2862/2004/GG.

(7) See point 12 of the Order of the Court of First Instance of 15 October 2003 in Case T-372/02.