Made in accordance with Article 3(5) of the Statute of the European Ombudsman[1]

The background to the complaint

1. The complaint in the case at hand is the leading partner and contractor of a project aimed at supporting the democratisation and transition to a market economy in Armenia (the 'Project'). The Project was implemented in the period between 8 August 2007 and 31 December 2009 and was managed by the EU Delegation to Armenia (the 'Delegation'). The present complaint is related to complaint 1651/2012/(ER)PMC, which concerns various alleged irregularities in the management of the Project and was submitted by the same complainant.

2. On 13 December 2011, the complainant turned to the European Commission's Secretariat-General and requested access to "any document which has been drafted and received - both before the beginning of the project, and during the project implementation, as well as after the end of the project - which concern all the issues related to the project and to the relations among the bodies/subjects involved in the project itself". The complainant provided examples of the authors and the types of the requested documents and also put the Delegation in copy. The complainant's request was made in accordance with Regulation 1049/2001[2].

3. Considering the extent of the request for access to documents, the Commission and the Delegation informed the complainant by letters of 9 and 16 January 2012 respectively that they needed more time to process its request.

4. The complainant reiterated its request in letters sent to the Commission's Secretariat General on 9 and 25 January, as well as on 24 and 28 February 2012 respectively. The correspondence of 24 and 28 February 2012 was also copied to the Deputy Director-General of Directorate-General (DG) DEVCO, the Commission's service responsible for overseeing the Delegation's work as concerns the Project.

5. By e-mail of 28 February 2012, the Deputy Director-General of DG DEVCO sent a holding reply to the complainant, putting the Secretariat General's Transparency Unit in copy of his correspondence.

6. On 9 March 2012, the Delegation replied to the complainant's request for access. The Delegation provided a list of the relevant documents and disclosed a series of documents to the complainant. The Delegation informed the complainant that it was entitled to seek a review of this position by making a confirmatory application to the Commission's Secretary-General within 15 working days.

7. On 29 March 2012, the complainant sent a letter to the Commission's Secretary-General, thanking the Commission for the documents received. However, it pointed out that most of them were already in its possession and that it expected to receive "other kinds of documents which are part of the project dossier". Incidentally, the complainant also pointed out examples of correspondence that had been disclosed and as regards which the date indicated by the Delegation in its list of documents did not appear to coincide with the actual date on the documents concerned. Moreover, the complainant identified a small number of attachments to the documents disclosed by the Delegation which were missing and requested a translation from Armenian of certain documents it had identified. Finally, the complainant reserved the right to ask for further documentation.

8. On 8 May 2012, the Commission replied to the complainant's "2nd request dated 29/3/2012". It stated that, from its point of view, all administrative tools, foreseen by the EU provisions for transparency, were being deliberately used and possibly abused by the complainant. The Commission thus decided to discontinue correspondence with it. It added, however, that if the complainant wished this position to be reviewed, it could write to the Commission's Secretary-General within 15 working days.

9. Dissatisfied with the way the Commission had handled its request, on 19 December 2012, the complainant turned to the Ombudsman.

The subject matter of the inquiry

10. In its complaint, the complainant made the following allegation and claim.

Allegation

The Commission failed to grant access to all the documents requested by the complainant in its confirmatory application of 29 March 2012 or to provide valid reasons for its refusal to do so.

Claim

The Commission should grant access to all the requested documents or provide valid reasons for its refusal to do so.

The inquiry

11. On 15 January 2013, the Ombudsman opened an inquiry and invited the Commission to submit an opinion. The Commission sent its opinion to the Ombudsman on 15 April 2013. The opinion was forwarded to the complainant, who sent observations on 31 May 2013.

The Ombudsman's analysis and provisional conclusions

A. Alleged failure to grant access to all the documents requested or to provide valid reasons for its refusal to do so

Arguments presented to the Ombudsman

12. In its complaint, the complainant alleged that the Commission failed to grant access to all the documents requested by it in its confirmatory application of 29 March 2012 or to provide valid reasons for its refusal to do so. It claimed that the Commission should grant access to all the requested documents or provide valid reasons for its refusal to do so.

13. In its opinion, the Commission pointed out that, by letter of 8 May 2012, it had replied to the letter sent by the complainant on 29 March 2012 that it considered to be a "second demand for access to documents", informing the complainant of the reasons why the Commission's services were unable to give any further follow-up to the complainant's request.

14. In the same letter, the Commission informed the complainant of the specific legal basis of its decision, as well as, of the legal remedy available to the complainant for appealing this decision. In particular, the letter of 8 May 2012 contained an annex illustrating in all details the previous exchange of correspondence between the Commission and the complainant.

15. In its observations, the complainant first recalled the procedural steps it had taken as concerns its request, stressing that it had repeatedly contacted the Commission asking it to deal with its request within the prescribed deadlines.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

16. The Ombudsman notes that, in its opinion, the Commission contended that, although in its complaint to the Ombudsman the complainant referred to the letter of 29 March 2012 as a confirmatory application for access, that letter was in fact, in form and in content, a new request of access to documents. The Commission specified that neither the title nor the substance of the letter made it clear that it was meant to be a confirmatory application within the meaning of Article 7(2) of Regulation 1049/2001 and consequently the Commission did not register it as such.

17. In its observations, the complainant insisted that its letter of 29 March 2012 was indeed a confirmatory application, since the Commission, in its letter of 9 March 2012, indicated that the complainant could address such an application to the Commission's Secretary-General within 15 working days. The complainant underlined that it had complied with this deadline. Furthermore, the complainant submitted that its letter of 29 March 2012 could not be considered as a second request for access to documents, since it did not ask for new documents, but for attachments to documents it had already received from the Commission.

18. The Ombudsman is unable to agree with the Commission's position. In this regard, it should first be noted that the Delegation's letter of 9 March 2012 made explicit reference to the possibility of making a confirmatory application within 15 working days and provided the address of the service to which such an application should be sent. The complainant's letter of 29 March 2012 was sent within the said deadline and addressed to the service indicated by the Delegation. Second, while it is true that the complainant's letter was not explicitly marked as a confirmatory application, the Ombudsman considers that Regulation 1049/2001 does not contain an explicit requirement for applicants to use this term. It is sufficient for an applicant to make it clear that he is not satisfied by the institution's reply to his initial request for access. However, it is clear that, in its letter of 29 March 2012, the complainant, among other things, questioned the completeness of the Delegation's disclosure of documents. Third, it is true that the wording used by the complainant in its letter of 29 March 2012 ("we would like to receive other kinds of documents") could create the impression that the complainant wished to submit a new request for access. Read in its entirety, however, it is clear that the complainant wished to make use of the possibility to make a confirmatory application. Apart from the fact that the complainant explicitly criticised that certain documents had not been disclosed yet, it should be noted that the reference of the letter of 29 March 2012 included the words 'Access to documents Ref Gestdem Mo. 2011/6312', that is to say, an explicit reference to its initial request for access and the Delegation's reply thereto. On this basis, the Ombudsman concludes that the complainant's letter of 29 March 2012 indeed amounted to a confirmatory application. It is useful to add that the Commission has in any event not put forward any convincing reasons to explain how its decision to discontinue corresponding with the complainant subsequent to what it considered to be a fresh initial application could be reconciled with Regulation 1049/2001.

19. The Ombudsman therefore needs to examine whether the Commission has properly dealt with the complainant's confirmatory application.

20. The answer to this question is clearly negative, given that the Commission has explicitly refused to address the substance of the confirmatory application.

21. In light of the above, the Ombudsman makes the preliminary finding that the Commission failed properly to deal with the complainant's confirmatory application of 29 March 2012. She therefore makes a corresponding proposal for a friendly solution below, in accordance with Article 3(5) of the Statute of the European Ombudsman.

22. The Ombudsman considers it useful to add some guidance so as to make it easier for the Commission to reply to her proposal.

23. In this respect, the Ombudsman recalls that, in its letter of 29 March 2012, the complainant effectively raised three issues. First, it identified what it perceived to be inconsistencies as regards the dates of certain documents that had been disclosed to it. Second, the complainant criticised that certain attachments of documents that had been made available to it had not been disclosed. Third, the complainant asked the Commission for a translation of certain documents drafted in Armenian.

24. The Ombudsman considers that the first of the above issues does not, strictly speaking, represent a request for access to documents. However, it would clearly be good administrative practice for the Commission to address the doubts that the complainant has raised in this respect.

25. As regards the third of the above issues, the Ombudsman recalls that Regulation 1049/2001 concerns access to existing documents held by the institutions but does not oblige the institutions to prepare documents upon request. Regulation 1049/2001 thus does not oblige an institution to provide translations of a given document in its possession, unless such translations already exist and are in the institution's possession.

B. The proposal for a friendly solution

Taking into account the Ombudsman's findings, the Commission could reply to the complainant's confirmatory application of 29 March 2012, addressing the issues raised therein.

Emily O'Reilly

Done in Strasbourg on 19 December 2013