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

In March 2016, the  complainant asked the Commission to make public minutes of a Commission meeting in which Commissioners discussed Commission “declarations” linked to the February 2016 deal made between the EU and the UK in the lead-up to the “Brexit referendum” of June 2016. The Commission refused to release the minutes. In May 2016, the complainant asked the Commission to review its decision.The Commission then extended the 15 working day deadline for replying by 15 working days. In June 2016, it informed the complainant that, because of internal consultations, it was not able to reply within the new deadline. It apologised for the additional delay. Having still received no reply, the complainant on 10 August 2016 complained to the Ombudsman about the failure to reply.

The Ombudsman opened an inquiry. On 28 October 2016 the Commission informed the complainant that it would not give him access to the minutes since to do so would seriously undermine its decision-making processes.

As the purpose of this specific Ombudsman inquiry was to obtain a response from the Commission to the request for public access, the Ombudsman concluded that the Commission had now settled the issue of the failure to reply. The Ombudsman however considered that the failure to reply within the prescribed deadlines constituted maladministration. She therefore makes the appropriate recommendations to the Commission.

The background to the complaint

1. On 18-19 February 2016, the European Council agreed on a set of “arrangements”, which would become effective once the United Kingdom informed the Council that the United Kingdom had decided to remain a member of the European Union. That set of “arrangements” included four “declarations” of the European Commission:

· a Declaration of the Commission on a subsidiarity implementation mechanism and a burden reduction implementation mechanism;

· a Declaration of the European Commission on the indexation of child benefits exported to a Member State other than that where the worker resides;

· a Declaration of the Commission on a safeguard mechanism;

· a Declaration of the Commission on issues related to the abuse of the right of free movement of persons.

The declarations were made public by the Council on 19 February 2016[2].

2. On 3 March 2016, the complainant, a UK citizen specialising in European affairs, asked the Commission to make public the “[m]inutes of the Commission college meeting within which the four declarations attached [to] the European Council conclusion of 18-19 February (Annex 4-7) were adopted, or an equivalent documentary record”.

3. On 20 April 2016, the Commission refused access because, in its view, the documents related to an ongoing decision-making process which would be seriously undermined if the minutes were made public.

4. On 17 May 2016, the complainant requested the Commission to review its refusal to disclose the documents. On 8 June 2016, the Commission informed the complainant that it had to extend the 15 working days deadline for replying to him by another 15 working days, that is until 29 June 2016. On 28 June 2016, the Commission once more informed the complainant that it was not able to take a decision on the request for review because its internal consultations were still ongoing. It apologised for the additional delay. The complainant sent a reminder and received a further apology on 5 August 2016.

5. In the meantime, on 23 June 2016, the electorate of the United Kingdom voted by referendum that the United Kingdom should leave the EU. On 16 October 2016, the Government of the United Kingdom announced that, in accordance with the procedure laid down in Article 50 of the Treaty on European Union, the United Kingdom would, by the end of March 2017, notify the European Council of its intention to withdraw from  the European Union. That notification would trigger a two-year negotiation process. The European Commission would represent the European Union in that negotiation process.

The inquiry

6. On 10 August 2016, the complainant complained to the Ombudsman, making the following allegation and claim:

Allegation:

The Commission failed to reply to the complainant’s request for review of 17 May 2016 within the time limit prescribed by Article 8 of Regulation 1049/2001.

Claim:

The Commission should either grant access to the requested documents, or, state its reasons for its total or partial refusal.

7. On 30 September 2016, the Ombudsman opened an inquiry, underlining that the Commission had already extended twice, on 8 and 28 June 2016, the deadline for replying to the complainant’s request for review. On 31 October 2016, the Commission informed the Ombudsman that, on the same day, it had sent its decision on the request for review (adopted on 28 October 2016) to the complainant. In that decision public access to the minutes in question was refused on the grounds that to do so would seriously undermine the Commission’s decision-making process and the principle of collegiality.

Alleged failure to reply to the request for review

Arguments presented to the Ombudsman

8. The complainant argued that, at the time he complained to the Ombudsman, he had been waiting 12 weeks for a reply, more than double the maximum time-limit. On 28 June 2016, the Commission apologised for the delay. It apologised again on 5 August 2016.

The Ombudsman's assessment leading to a recommendation

9. On 31 October 2016 the Commission sent its decision on the request for review to the complainant. The Commission has thus settled the part of the complainant’s allegation that relates to the failure to reply.

10. As regards the complainant’s claim that the Commission should grant access to the requested documents or provide reasons for not doing so, the Commision has now replied to the complainant and provided a reason for not giving access to the documents. The complainant’s claim has thus also been dealt with.[3]

11. However, the Ombudsman notes that the Commission responded to the complainant’s request for review four months after the maximum period for responding to a request for review[4].

12. The period of time required to deal with a particular request for public access to documents depends upon a number of factors, including the number of documents requested, their length and complexity and, above all, the complexity and the sensitivity of the issues that may arise in relation to the exceptions set out in Article 4 of Regulation 1049/2001. The Ombudsman has stated that, if an institution is faced with an objective need for an extended period of time to process an application, it would be in conformity with principles of good administration if the institution were to explain to an applicant the reasons why this need arises, and also to provide the applicant with some indication of how long it will take to process the application[5]. An applicant requires such information in order to make an informed decision as to whether it is in its interest to exercise its various options including whether to make a complaint to the Ombudsman or an application before the EU Courts.

13. In this case, the Commission did not provide any valid explanation for the very long delay in dealing with the present application. The Commission simply stated that it needed to conduct internal consultations. This statement, on its own, does not explain why the long delay occurred and certainly does not justify it. The Commission provided no information on what these consultations were and why they could not be carried out within the prescribed time-limits. The delay is even more surprising since, in the reasoning of the refusal to make the minutes public, the Commission simply relies on the protection (in general) of the Commission’s decision making process (when it concerns “special minutes”) and the principle of collegiality. It is not evident why it took so long to arrive at this view.

14.  Further, the Commission gave the complainant no clear indication, in its second letter of 28 June 2016 informing the complainant of the delay, as to when a reply could be expected. It simply apologised to the complainant for the delay that had occurred without giving any indication as to when a reply was to be expected.

15. This constitutes maladministration. On the basis of this finding the Ombudsman will make the appropriate recommendation to the Commission.

16. The Commission now has the opportunity to submit an opinion in relation to the finding of the Ombudsman and the related recommendation.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman has reached the following conclusions:

The Commission has settled the allegation of failure to reply.

The Commission provided no valid reasons as to why it delayed providing a reply to the complainant and did not indicate to the complainant when a reply would be sent to him.

Recommendation

The Commission should always seek to ensure that it meets the deadlines set out in Regulation 1049/2001 for responding to requests for public access to documents.

If the Commission is faced with an objective need for an extended period of time to process an application, in conformity with principles of good administration it should explain to the applicant the reasons why this need arises, provide the applicant with an indication of how long it will take to process the application and inform the applicant of the time limit for lodging an appeal before the EU courts.

The Commission and the complainant will be informed of this recommendation.  In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 3 March 2017. The detailed opinion could consist of the acceptance of the recommendation and a description of how it has been implemented.

Strasbourg, 02/12/2016

Emily O'Reilly

 

[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] See  http://www.consilium.europa.eu/en/meetings/european-council/2016/02/18-19/

[3] The Ombudsman underlines that the present inquiry does not address the issue whether the reasons put forward by the Commision for refusing access are justifed.

[4] The initial 15 working days deadline for replying to the request for review of 17 May 2016 expired on 8 June 2016. The Commission extended the deadline with another 15 working days until 29 June 2015. Four further months passed before the Commission decided on the request for review.

[5] See paragraphs 30 and 31 of the the Decision of the Ombudsman in case 1302/2009/TS http://www.ombudsman.europa.eu/en/cases/decision.faces/en/5539/html.bookmark.