Strasbourg, 21 June 2007

Dear Mr R.,

On 8 February 2006, you submitted to the European Ombudsman a complaint against the Council of the European Union. The complaint concerned a request for access to a Council document regarding the results of the selection process for the position of President of the Boards of Appeal in the Office for the Harmonisation of the Internal Market in Alicante, Spain.

On 17 March 2006, you contacted the Ombudsman's services by telephone and provided further information. On 24 March 2006, my services contacted you by telephone in order to clarify certain points of your complaint.

On 12 April 2006, I informed the Secretary-General of the Council of your complaint and asked him to submit an opinion by 31 July 2006.

On 11 July 2006, the Council sent its opinion, which I forwarded to you on 17 August 2006, with an invitation to make observations, if you so wished. No written observations were received from you. On 11 December 2006, my services contacted you by telephone, in order to ascertain whether you were satisfied with the result of the investigation.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the facts of the case are, in summary, as follows:

The complainant applied for the position of President of the Boards of Appeal of the Office for the Harmonisation of the Internal Market ("the OHIM") in Alicante, Spain. He was not selected for this position. Since the OHIM made public only the name of the candidate who was actually selected and the complainant believed that he was one of the final candidates for the position, he asked for access, under Regulation 1049/2001/EC of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents(1) ("Regulation 1049/2001"), to Council document 15066/05, which included, in its concluding part, the names of the three final candidates. However, his application for access was refused. Following this refusal, the complainant submitted a confirmatory application to the Council (N° 53/c/01/05), asking it to reconsider its position. However, his application was refused by decision of 23 January 2006. The Council, after consulting the OHIM, based its refusal on Article 4(1)(b) of Regulation 1049/2001(2) and argued that disclosure of the name of the candidates would undermine the protection of their privacy and integrity.

In his complaint to the European Ombudsman, the complainant explained, however, that he had no interest in having access to the names of the other candidates but that he was only interested in knowing whether he was one of the three final candidates included in the list, as well as in learning what his rank was and the number of votes he had obtained.

The complainant stressed that he wished his name to be placed in the public domain and that, in his view, disclosure of his name would breach neither his right to privacy nor the privacy of other individuals. He explained that he would like to use the document as evidence of his achievements for future selection procedures in the OHIM or in any other national or international bodies and, in particular, in a selection procedure in which he was currently taking part.

The complainant alleged, in summary, that the Council's refusal to grant him partial access to its document containing the results of the selection process for the position of President of the Boards of Appeal in the OHIM was unjustified. He claimed that he should be granted partial access to the document.

On 24 March 2006, the complainant, in a telephone conversation with the Ombudsman's services, stated that he understood and accepted that granting him partial access to the document would imply that the Council would be obliged to provide the same partial access to any other person who might request it, in accordance with Regulation 1049/2001. The Ombudsman, in his letter to the Council, asked the institution to take the complainant's statement into account when drafting its opinion.

THE INQUIRY

The opinion of the Council

In its opinion, the Council addressed separately two different aspects of the complaint, namely, the questions of whether (i) there had been maladministration at the time of adoption of the decision rejecting the complainant's confirmatory application, and (ii) the additional information provided by the complainant in his complaint to the Ombudsman allowed the Council to adopt a different decision on access.

As regards the potential maladministration in relation to the rejection of the complainant's confirmatory application, the Council explained that the complainant had requested access to a letter addressed by the Chairman of the Administrative Board of the OHIM to the Council's Secretary-General (reference 15066/05). This letter included, in its annex, a summary of decisions taken during the 30th meeting of the Administrative Board held in Alicante on 23 November 2005, as well as a list of candidates for the post of President of the Boards of Appeal.

The Council recalled that, according to Article 131(1) of Council Regulation 40/94 of 20 December 1993 on the Community trade mark(3), "[t]he members, including the chairmen, of the Boards of Appeal shal l be appointed, in accordance with the procedure laid down in Article 120, for the appointment of the President of the Office, for a term of five years. (...)". The Council explained that Article 120(1) of this Regulation sets out that "[t]he President of the Office shal l be appointed by the Council from a list of at most three candidates, which shal l be prepared by the Administrative Board. (...)".

The Council clarified that document 15066/05 had clearly originated from the OHIM and that, since this agency was a separate entity from the Council, it was therefore a third party within the meaning of Article 4(4) of Regulation 1049/2001(4). In order to comply with this provision, when the complainant requested access to document 15066/05, the Council consulted the OHIM in order to obtain its views. On 19 December 2005, the OHIM suggested that the document could be released, with the exception of the names of the three candidates mentioned in Annex II, since it considered that their identity ought to be protected under Article 4(1)b of Regulation 1049/2001.

The Council clarified that, in its initial reply of 19 December 2005 to the applicant's application for access to the document, it had granted him partial access, with the exception of the names of the three candidates mentioned in Annex II, since it had seen no reason to deviate from the assessment carried out by the OHIM. The Council confirmed its position in its reply of 23 January 2006 to the complainant's confirmatory application, and provided him with an explanation of the reasons for this decision. In its reply to the complainant, the Council stressed that, in order to give meaning to the provisions of Article 4(4) of Regulation 1049/2001, the Council may deviate from a third party's opinion on whether it shall refuse access to a document on the grounds of Articles 4(1) or 4(2) of the Regulation only if there are clear and pressing reasons to do so. The Council added that any such decision would need to be reasoned.

The Council explained that, in the present case, there was no reason to assume that the OHIM's objections to the full release of document 15066/05 would have changed so quickly after it had expressed its view on this issue during the initial application phase. Therefore, the Council confirmed its previous decision and, after having re-examined the document, concluded, that, in order to avoid undermining the protection of privacy of the individuals concerned, public release of the withheld part of the document could not be authorised.

In its opinion, the Council acknowledged that under the present system of access to third party documents, as defined in Article 4(4) of Regulation 1049/2001, the originator of a document, in this case the OHIM, no longer had responsibility for adopting the final decision on confirmatory applications(5). It went on to point out that this practice was contrary to the situation pertaining before the approval of Regulation 1049/2001. However, the Council also pointed out that Article 4(4) had to be interpreted in an effective manner and that, in order to ensure such effectiveness, the consultation of the originating third party could not be considered a mere formality. The Council emphasised that the originator of a document was often best placed to assess the possible harm that its release could cause. The Council also recalled that, taking into account the mutual trust between the institutions and bodies as regards the treatment of their respective documents, which is implicit in the operation of Article 4(4), it could not simply ignore the OHIM's position as regards access to a document drawn up by it. Therefore, in practice, the Council would normally consult the third party and would ignore its advice only if it were manifestly unreasonable or illegal, save for the cases falling within the scope of Article 4(5). In all other cases, the Council would respect the advice provided by the third party concerned.

The Council stressed that, in the present case, it had therefore examined whether the OHIM's reasoning was manifestly incorrect. As the Council considered that this was not the case, it had refused the complainant access to the three names included in the document. The Council finally concluded that the way in which it had applied Article 4(4) was reasonable and within the limits of the law and that, by acting this way, it had minimised the possibility of incurring legal liability as a result of a disclosure that was subsequently contested by the originating third party.

The Council explained that, even though this question, strictly speaking, went beyond the scope of the complaint, it had investigated whether the additional clarifications provided by the complainant in his complaint to the Ombudsman allowed it to make the requested information available to him. In this regard, the Council had re-contacted the OHIM. Following this consultation, the Council was able to inform the complainant that his name was not mentioned in document 15066/05.

The complainant's observations

The complainant did not submit any written observations.

On 11 December 2006, the Ombudsman's services contacted the complainant by telephone in order to ascertain whether he was satisfied with the reply given by the Council in its opinion.

The complainant mentioned that there should be more transparency in selection procedures organised by the EU institutions and informed the Ombudsman's services that he did not wish to pursue the matter any further.

THE DECISION

1 Refusal of partial access of a Council document and related claim

1.1 Council document 15066/05, which concerns the results of the selection process for the position of President of the Boards of Appeal in the Office for the Harmonisation of the Internal Market ("the OHIM") in Alicante, Spain, includes, in its concluding part, the names of the three final candidates for that position. The complainant wished to obtain at least partial access to Council document 15066/05, in order to determine if he was amongst the three final candidates. In this regard, he explains that the OHIM had made public only the name of the candidate who was eventually selected for the position of President of the Boards of Appeal.

He asked the Council of the European Union for access to the document under Regulation 1049/2001/EC of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents(6) ("Regulation 1049/2001"). However, his application for access was refused. Following this refusal, the complainant submitted a confirmatory application to the Council, which was also refused on 23 January 2006.

He alleges that the refusal by the Council to grant him partial access to Council document 15066/05 was unjustified. He claimed that he should be granted partial access to this document.

1.2 The complainant clarifies that he has no interest in having access to the names of the other candidates, but only in knowing whether he is one of the final candidates included in the list, as well as in learning what his rank is and the number of votes he obtained. He also understands and accepts that granting him partial access to the document will imply that the Council would be obliged to provide the same partial access to any other person who might request it, in the accordance with Regulation 1049/2001.

1.3 The Council clarifies that since Council document 15066/05 originated from a third party, that is, from the OHIM, in order to comply with Article 4(4) of Regulation 1049/2001(7) it consulted the OHIM as regards the complainant's request for access.

On 19 December 2005, the OHIM suggested that document 15066/05 could be released, with the exception of the names of the three candidates mentioned in Annex II. Since the Council had no reason to deviate from the OHIM's assessment, it explains that, on 19 December 2005, it initially granted partial access, excluding the three names. The Council confirmed its position in its reply of 23 January 2006 to the complainant's subsequent confirmatory application, in which it stressed that, in order to give meaning to the provisions of Article 4(4) of Regulation 1049/2001, it could only deviate from a third party's opinion if there were clear and pressing reasons to do so and provided such a decision was reasoned. The Council considered that, in the present case, there was no reason to assume that the OHIM's objections to the full release of the document would have changed so quickly after it had already made its views known to the Council. Therefore, and after having re-examined the document, the Council confirmed its initial decision that the three names could not be released. The Council explains that in the present case, it had examined whether the OHIM's reasoning was manifestly incorrect. In its opinion, the Council also concludes that the way in which it applied Article 4(4) is reasonable and within the limits of the law.

1.4 However, the Council also explains in its opinion that, even if this question went, strictly speaking, beyond the scope of the complaint, it had investigated whether the additional clarifications provided by the complainant in his complaint to the Ombudsman allowed it to provide the complainant with the requested information. In this regard, the Council re-contacted the OHIM. Following this consultation, the Council was able to inform the complainant that his name was not mentioned in document 15066/05.

1.5 The complainant did not submit written observations on the Council's opinion. However, in a telephone conversation with the Ombudsman's services on 11 December 2006, he submitted that there should be more transparency in selection procedures organised by EU institutions and informed the Ombudsman's services that he did not wish to pursue the matter any further.

1.6 The Ombudsman notes that, after consulting the OHIM, the Council, on 19 December 2005, granted to the complainant partial access to document 15066/05, with the exclusion of the names of the three final candidates for the position of President of the Boards of Appeal in this institution. The Ombudsman also notes that the Council subsequently confirmed this position in its reply to the complainant's confirmatory request and provided him with its reasons for doing so.

1.7 The Ombudsman notes, however, that, in its opinion to the Ombudsman, the Council has, after having re-consulted the OHIM, informed the complainant that his name was not mentioned in document 15066/05.

1.8 In view of the above, the Ombudsman considers that it is not necessary to make further inquiries into the complaint.

1.9 In its opinion, the Council stated that, as regards requests for access to a document drawn up by other Community institutions or bodies, and in accordance with Article 4(4) of Regulation 1049/2001, it would normally consult that third party and ignore its advice only if it were "manifestly unreasonable or illegal". The Ombudsman entertains doubts as regards the appropriateness of the Council's interpretation of Article 4(4) of Regulation 1049/2001. However, since the complainant's claim has been settled, in substance, the Ombudsman does not need to examine this issue further in the present case.

1.10 The Ombudsman would like to welcome the co-operative and positive attitude of the Council in the present case, and the fact that it consulted the OHIM one more time, in order to ascertain whether, as a result of the additional clarifications provided by the complainant in his complaint to the Ombudsman, the requested information could be made available to him.

2 Conclusion

In view of the results of his examination of this case, the Ombudsman takes the view that it is not necessary to make further inquiries into the complaint. He therefore closes the case.

The Secretary-General of the Council will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2001 L 145, p. 43.

(2) Article 4(1)(b) states that the institutions shall refuse access to a document where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

(3) OJ 1994 L 11, p. 1.

(4) Article 4(4) of Regulation 1049/2001 states that: "[a]s regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed." Article 4(1) and 4(2) of Regulation 1049/2001 set out the cases in which the institutions shall refuse access to a document. Article 4(1)(a) refers to cases in which disclosure of a document would undermine the protection of the public interest, as regards public security, defence and military matters, international relations and the financial monetary or economic policy of the Community or a Member State. Article 4(1)(b) mentions the privacy and integrity of the individual, in particular, in accordance with Community legislation regarding the protection of personal data. Article 4(2) refers to cases in which disclosure of a document would undermine the protection of commercial interests of a natural or legal person (including intellectual property), court proceedings and legal advice, as well as the purpose of inspections, investigations and audit, unless there is an overriding public interest in disclosure.

(5) The Council mentioned that this was not, however, applicable in cases falling within the scope of Article 4(5) of Regulation 1049/2001, which concerns the right of a Member State to ask the institution not to disclose a document originating from it without its prior agreement.

(6) OJ 2001 L 145, p. 43.

(7) Article 4(4) of Regulation 1049/2001 sets out: "[a]s regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed." Article 4(1) and (2) of Regulation 1049/2001 set out the cases in which the institutions shall refuse access to a document. Article 4(1)(a) refers to cases in which disclosure of a document would undermine the protection of the public interest, as regards public security, defence and military matters, international relations and the financial monetary or economic policy of the Community or a Member State. Article 4(1)(b) mentions the privacy and integrity of the individual, in particular, in accordance with Community legislation regarding the protection of personal data. Article 4(2) refers to cases in which disclosure of a document would undermine the protection of commercial interests of a natural or legal person, (including intellectual property), court proceedings and legal advice, as well as the purpose of inspections, investigations and audit, unless there is an overriding public interest in disclosure.