The background to the complaint

1. The complainant is one of five experts who were employed by a company ('Company X') to work on a project funded by the Commission and implemented by the EU Delegation in a third country. In the framework of the contract's execution, the Commission imposed a late delivery penalty on Company X, in accordance with Article 19 of the applicable General Conditions. Company X considered that the complainant was responsible for the delay, and thus paid him only part of his fees.

2. The complainant instituted legal proceedings against Company X in France, in order to obtain the outstanding payment of EUR 10 510.50 plus interest. The French courts, both at first instance, on 8 April 2009, and on appeal, on 7 September 2010, ruled against him. The complainant wanted to launch new legal proceedings but only if he were able to prove that the penalty imposed by the Commission on Company X was lower than what Company X had stated. Therefore, he contacted the Commission requesting to be informed of the final percentage of the late delivery penalty. In his letter to the Commission, the complainant indicated that Company X had paid him about 42 % of his fees, and that it had based this decision on the fact that the Commission had imposed a 42 % late delivery penalty on it.

3. On 10 December 2010, the Commission rejected the complainant's request. It replied that the penalty had been imposed in the framework of a contract between the Commission and Company X, to which the complainant was not a party. It added that it was not legally entitled to divulge information which was of a strict contractual nature and potentially prejudicial to the commercial interests of a juridical person. The Commission added that the competent judge could oblige Company X to provide the relevant documents in the framework of the proceedings between the parties. Following a further e-mail from the complainant dated 14 December 2010, the Commission, on 22 December 2010, proposed to contact Company X to ask for its agreement to the disclosure of the information requested by the complainant. It added that, in case Company X refused the request, the Commission would not be able to divulge the information.

4. On 6 January 2011, the complainant lodged a first complaint (122/2011/ELB) with the European Ombudsman. On 3 February 2011, the Ombudsman informed the complainant that there were no grounds for an inquiry, given that the Commission had agreed to contact Company X to ask for its agreement. In the meantime, however, on 20 January 2011, Company X replied to the Commission and explicitly refused that the Commission communicate the requested information to the complainant: "Je m'oppose formellement à toute communication vers l'extérieur (...) sur ce contrat de la part des services de la Commission, eu égard à la nature contractuelle et donc confidentielle des relations qui nous régissent, ceci rentrant dans le cadre de la protection des données et ce afin de protéger les intérêts de notre société".

5. On 28 January 2011, the complainant wrote to the Ombudsman, stating that the Commission informed him that Company X had expressed its opposition to the disclosure of the information and that it could therefore not divulge it. On 18 February 2011, the Ombudsman informed the complainant that public access to documents was governed by Regulation 1049/2001/EC[1] and advised him to first make a confirmatory application before turning to the Ombudsman again.

6. The complainant made a confirmatory application on 21 February 2011. The General Secretariat of the Commission informed the complainant that his request was a request for information and not for access to documents. It therefore forwarded his request to the Directorate-General for Development and Cooperation (DG AIDCO). The latter replied on 22 March 2011, reiterating the Commission's previous position. It stated that it could not provide the requested information because i) it was of a strict contractual nature and potentially prejudicial to the commercial interests of Company X, and ii) Company X had explicitly expressed its opposition to the release of the information.

7. On 24 March 2011, the complainant replied to the Commission, pointing out that he had not asked for information that Company X had sent to the Commission, but for information on a decision taken by the Commission itself. More particularly, he did not ask the Commission to inform him of the amount of the late delivery penalty, which, he agreed, constitutes contractual information. He asked instead to be informed of the percentage of the late delivery penalty imposed on Company X. The complainant pointed out that this information was already five years old and wondered how it could damage the commercial interests of the company.

The subject matter of the inquiry

8. On 22 March 2011, the complainant submitted the present complaint to the Ombudsman. He alleged that the Commission failed to inform him of the amount (in percentage terms) of a late delivery penalty it imposed on Company X. The complainant claimed that the Commission should give him the requested information.

9. In his letter to the Commission, the Ombudsman pointed out that it appeared that the complainant's objective was to find out whether the 42 % figure supplied to the French court by Company X was accurate. The Ombudsman stated that, if this figure was indeed accurate, it was not obvious why confirming that this was so would harm the commercial interests of the company concerned. On the other hand, if the figure was inaccurate, it was not obvious that the company had a legitimate commercial interest in keeping that fact secret. The Ombudsman therefore asked if the Commission's opinion could either confirm or deny the accuracy of the 42% figure. In the event that the Commission was not willing to do so, the Ombudsman asked it to explain why it considered that doing so would harm the legitimate commercial interests of the company concerned.

The inquiry

10. On 30 May 2011, the Ombudsman opened an inquiry and forwarded the complaint to the Commission, which sent its opinion to the Ombudsman on 19 October 2011. The opinion was forwarded to the complainant, who submitted his observations on 31 October 2011. On 18 July 2012, the complainant sent further information, including a copy of his contract with Company X.

The Ombudsman's analysis and conclusions

A. Alleged failure to inform the complainant of the percentage of a late delivery penalty and related claim

Arguments presented to the Ombudsman

11. The complainant requested the Commission to inform him of the percentage of the late delivery penalty. The complainant argued that his request does not concern information provided by Company X to the Commission. In fact, he requested information on a decision taken by the Commission. In addition, he did not request the Commission to inform him of the amount of the late delivery penalty, which, he agreed, constitutes contractual information. He only requested the Commission to inform him of the percentage of the late delivery penalty. He also argued that the information dates from five years ago and cannot damage the commercial interests of Company X.

12. In its opinion to the Ombudsman, the Commission explained that the complainant's request concerns a request for information (namely, confirmation of the percentage of the late delivery penalty) and not a request for access to a document. Therefore, the Commission dealt with the complainant's request in accordance with Article 339 of the Treaty on the Functioning of the European Union (TFEU) and the Code of Good Administrative Behaviour. In the Commission's view, Regulation 1049/2001 does not apply. The requested information results from the contractual relationship between the Commission and Company X and concerns the latter's commercial relationships. The late delivery penalty is a sanction, in the form of a lump sum compensation, for Company X's non-compliance with the completion deadline as defined in the contract. If such information is made public, it is likely to damage seriously the company's reputation. Article 339 TFEU provides that officials should not disclose such information.

13. The Commission added that Company X clearly expressed its opposition to the release of this information on two occasions. On 22 March 2011, Company X reiterated its previous objection. Unlike requests for access to documents, requests for information are not subject to procedural rules, such as those foreseen in Regulation 1049/2001, which would have enabled the Commission to go beyond Company X's refusal. The Commission was therefore obliged to refuse disclosure.

14. The Commission argued that, even if Regulation 1049/2001 does not apply to requests for information, it contains general principles, notably in its Article 4. That article provides that the protection of commercial interests constitutes a reason for not giving access to a document, except if there is an overriding public interest in disclosure. According to the case-law of the General Court, the private interest put forward by the complainant, that is, using the relevant information in court proceedings, does not constitute an overriding public interest[2]. This particular interest is addressed by Article 4(3) of the Treaty on European Union (TEU), which provides for sincere cooperation between the EU and the Member States. The Commission stated that it was ready to cooperate with the French judiciary and that it had indicated to the complainant that it would not oppose communicating the relevant information upon the request of the competent magistrate.

15. The Commission concluded that it replied to the complainant's requests within reasonable deadlines and with reasoned arguments. It further took all legally appropriate measures to satisfy the complainant's request.

16. In his observations, the complainant stated that the Commission's legal reasoning was wrong because it did not take into account two fundamental elements. First, the information the complainant requested was the percentage of the late delivery penalty. Company X informed the complainant and the court that the Commission applied a 42 % penalty, but Company X prevented the complainant from verifying this. According to the complainant, there is thus a problem which has not been solved by the Commission. Second, the complainant is entitled to obtain the information from the Commission because if the information which Company X gave him is false, then he was the victim of a lie. In a further e-mail of 18 July 2012, the complainant stated that he had been paid only 45 % of his fees because, allegedly, Company X had suffered a late delivery penalty of about 50 %.

The Ombudsman's assessment

17. In his e-mail to the Commission of 24 March 2011, and in his complaint to the Ombudsman, the complainant insisted that he wants to know the percentage penalty imposed by the Commission, and not the amount of the late delivery penalty. It is important to note that the Commission has never stated that it imposed a percentage penalty on Company X (it was only Company X and the complainant that referred to a percentage penalty). In its opinion, the Commission clarified that the late delivery penalty imposed on Company X was a lump sum compensation for non-compliance with the contract and it went on to argue that releasing this information could harm the reputation of Company X. Given that the Commission does not maintain that it imposed a percentage penalty on Company X, the complainant's request to the Commission can therefore only be understood as a request for information concerning the amount of the lump sum compensation imposed by the Commission on Company X.

18. The late delivery penalty was, the Commission noted, a sanction which it imposed on Company X as a result of that company's failure to comply with its contractual obligations towards the Commission. In turn, Company X maintained before the French courts that its failure to comply with its contractual obligations towards the Commission resulted from a failure of its subcontractor, the complainant. The Ombudsman is of the view that it is reasonably foreseeable, and not purely hypothetical, that precise public knowledge of such a sanction could damage the image and reputation of Company X, especially vis-à-vis its customers. As a result, the legitimate commercial interests of Company X could be damaged by the release of the amount of the sanction imposed on Company X.

19. The Commission, furthermore, indicated that it was ready to cooperate with the French courts by communicating all relevant information to the French courts upon a request from the competent magistrate. This position of the Commission is in line with the case-law of the Court of Justice of the EU according to which "it is incumbent upon every [EU] institution to give its active assistance to such national legal proceedings, by producing documents to the national court..."[3].

20. The Ombudsman therefore finds the Commission's position to be reasonable. Accordingly, the Ombudsman comes to the conclusion that there has been no maladministration by the Commission.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration by the European Commission.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 9 October 2012

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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] Case T-474/2008 Umbach v Commission, judgment of 21 October 2010, not yet published in the ECR.

[3] Case C-2/88 IMM Zwartveld [1990] ECR I-03365, paragraph 22.