The background to the complaint

1. The present case concerns the European Commission's alleged failure to grant full access to the documents to which the complainant had requested access under Regulation 1049/2001[1].

2. The complainant holds an interest in a company, which holds the commercial rights for several varieties of durum wheat. On 10 March 2010, the complainant submitted an infringement complaint to the Commission, alleging that Italian Decree No. 2440 of 25 February 2010 implementing Article 68 of Regulation (EC) 73/2009[2] was not in compliance with EU legislation. In particular, the complainant argued that Italian authorities wrongly eliminated the mandatory requirement to use certified seeds for durum wheat in the framework of specific support to farmers. The Commission registered his infringement complaint under reference CHAP (2010)00764.

3. On 6 July 2010, the complainant sent an e-mail to the Commission and requested access to all documents exchanged between itself and Italy in the framework of the above infringement complaint.

4. By letter dated 3 August 2010, the Commission rejected the complainant's request, informing him that the requested documents fell under the exceptions to access to documents provided for by Article 4(2), third indent[3], and Article 4(3)[4], first sentence of Regulation 1049/2001. On the same day, the complainant made a confirmatory application for access to the requested documents to the Commission's Secretariat-General.

5. On 24 August 2010, the Commission informed the complainant that it still had not finalised the analysis of the requested documents and that it had extended the time-limit for its reply by 15 working days. On 14 September 2010, the Commission informed the complainant that it was not yet in a position to provide a reply, without indicating by which time it would take a decision.

6. On 16 September 2010, the complainant turned to the Ombudsman and complained that the Commission had not yet replied to his confirmatory application for access to documents.

7. On 25 October 2010, the Commission informed the complainant of its decision to reject his confirmatory application for access on the grounds of the exceptions already invoked in its earlier reply.

8. On 27 October 2010, the complainant informed the Ombudsman of his intention to drop his original allegation concerning the Commission's failure to reply to his confirmatory application for access. He stated that instead he wished to complain about the merits of the Commission's decision to deny access.

The subject matter of the inquiry

9. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation

The Commission failed to provide valid and adequate grounds for refusing to grant full access to all the documents concerning the complainant's infringement complaint CHAP (2010)00764.

Claim

The Commission should reconsider its decision to refuse the complainant access to all the documents concerning his infringement complaint CHAP (2010)00764.

The inquiry

10. On 11 May 2011, the Ombudsman asked the Commission to submit an opinion on the complainant's allegation and claim.

11. On 29 July 2011, the Commission submitted its opinion, which was forwarded to the complainant for observations by 30 September 2011. The complainant did not submit any observations by that or a later date.

The Ombudsman's analysis and conclusions

A. Allegation that the Commission failed to provide valid and adequate grounds for refusing access to the requested documents and related claim

Arguments presented to the Ombudsman

12. In his complaint to the Ombudsman, the complainant essentially argued that the conditions for invoking the exceptions relied on by the Commission were not fulfilled in the case at hand. He therefore considered that its decision lacked valid grounds.

13. In its opinion, the Commission drew attention to the fact that, on 1 March 2011, it had granted the complainant access to all the documents concerning his infringement complaint CHAP (2010)00764, since it considered that the grounds for refusing access no longer applied.

The Ombudsman's assessment

14. The Ombudsman notes that, by the time he opened his inquiry, the Commission had already granted the complainant access to the requested documents. The complainant did not submit any observations. In view of these circumstances, the Ombudsman concludes that there are no grounds for further inquiries into the case.

B. Conclusions

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

There are no grounds for further inquiries into the case.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 10 December 2012

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[1] European Parliament and Council Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commissions documents, OJ 2001 L145, p. 43.

[2] Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003, OJ 2009 L 30, p. 16.

[3] Article 4 (2), third indent, of Regulation 1049/2001 reads: "The institutions shall refuse access to a document where the disclosure would undermine the protection of [...] the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure".

[4] Article 4 (3) of Regulation 1049/2001 reads: "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."