The background to the complaint

1. This complaint concerns a request for public access to documents originating from Member States, which the European Commission ('Commission') holds.

2. The complainant is a journalist who works in Brussels, Belgium, for an American newspaper. On 20 August 2010, the complainant submitted to the Commission a request for access to documents relating to the 'Standard Remuneration Questionnaire' required by the Working Group on Article 65 of the Staff Regulations.[1] This request, which was made pursuant to Regulation 1049/2001,[2] concerned Member States' replies to the said questionnaire. The data contained in these replies is used by Eurostat (i.e., the Commission) to make calculations concerning the required pay adjustment of officials and other servants working for the EU institutions, bodies, offices and agencies.

3. On 10 September 2010, the Commission informed the complainant that, in accordance with Article 7 of Regulation 1049/2001, it had decided to extend the deadline to reply to the request for access by 15 working days (i.e., until 1 October 2010).

4. On 1 October 2010, the Commission informed the complainant that the relevant calculations were based on information provided by eight Member States. It added that seven of these Member States had already submitted their replies to the questionnaire (i.e., all the Member States concerned except for Spain). However, the Commission further indicated that it had to consult the Member States in question in order to ascertain whether they objected to the disclosure of their replies. Thus, the Commission indicated that it would get back to the complainant as soon as possible in the course of the following week.

5. On 7 and 8 October 2010, the Commission provided the complainant with copies of the replies to the questionnaire submitted by six Member States concerned by the request.

6. On 13 October 2010, the Commission informed the complainant that France and Spain had objected to the disclosure of their replies. In the Commission's view, no access could therefore be granted to these documents, as "disclosure would seriously undermine the decision-making process, inter alia due to the preliminary and specific character of the documents. The documents are established on the basis of an EU methodology which is specifically adapted to EU needs and therefore not necessarily consistent with national practices (Article 4(4) of Regulation 1049/2001)."[3]

7. On 20 October 2010, the complainant submitted a confirmatory application to the Secretary-General of the Commission, pursuant to Article 8 of Regulation 1049/2001. In essence, the complainant contested the Commission's view that disclosure of the replies to the questionnaire would seriously undermine the decision-making process. Moreover, the complainant argued that the fact that the documents had allegedly been established on the basis of an EU methodology which was specifically adapted to the EU's needs did not appear to fall within the scope of any of the exceptions listed in Article 4 of Regulation 1049/2001.

8. On 16 November 2010, the Commission informed the complainant that, in accordance with Article 8(2) of Regulation 1049/2001, it had decided to extend the deadline for replying to the confirmatory application by 15 working days (i.e., until 9 December 2010).

9. On 9 December 2010, the Commission informed the complainant that it was not in a position to provide him with a final reply to the request for access since the 'internal consultations' were still ongoing.

10. On 27 January 2011, the complainant requested an update concerning the status of his confirmatory application.

11. On 9 February 2011, the complainant repeated his request for an update on the status of his confirmatory application.

12. On the same date, the Commission informed the complainant that he would shortly receive a reply.

13. On 11 July 2011, and in the absence of a reply to his confirmatory application, the complainant lodged the present complaint with the Ombudsman.

The subject matter of the inquiry

14. The Ombudsman opened an inquiry into the following allegations and claim:

Allegations:

(1) The Commission failed to grant the complainant access to the replies given by France and Spain to the Standard Remuneration Questionnaire that the Commission had addressed to them for the purpose of preparing its yearly review of the remunerations of officials and other servants of the EU.

(2) When dealing with the said request for access, the Commission failed to respect the applicable deadlines in Regulation 1049/2001.

Claim:

The Commission should grant the complainant access to the replies given by France and Spain to the Standard Remuneration Questionnaire that the Commission had addressed to them.

The inquiry

15. On 29 July 2011, the Ombudsman requested the Commission to provide its opinion on the above allegations and claims. Moreover, the Ombudsman informed the Commission that it had decided to carry out an inspection of the relevant documents. The inspection took place on 26 September 2011 and a copy of the inspection report was sent to the complainant.

16. On 6 October 2011, the complainant informed the Ombudsman that, on the same date, the Commission disclosed the questionnaire submitted by Spain.[4]

17. On 19 October 2011, the Commission informed the Ombudsman that it had not been able to meet the deadline of 30 September 2011 set to provide an opinion. The Commission added that it intended to provide its opinion by 30 November 2011.

18. On 11 January 2012, the Commission provided its opinion, which was forwarded to the complainant for his observations. The complainant submitted his observations on 19 January 2012.

The Ombudsman's analysis and conclusions

A. Allegation of failure to grant access to the replies by Spain and France to the Standard Remuneration Questionnaire and related claim

Arguments presented to the Ombudsman

19. In its opinion, the Commission pointed out that it had granted the complainant access to the reply submitted by France on 28 October 2011.[5] The Commission therefore contended that the allegation of failure to grant the complainant access to the replies given by France and Spain to the Standard Remuneration Questionnaire and the related claim had become devoid of purpose, since it had in the meantime granted access to these documents.

20. The complainant contested the position adopted by the Commission. He argued that the Commission's reasons for withholding the documents were faulty and that, therefore, it was important to note this, in order for the Commission to change its policy in the future. In particular, the complainant took issue with the fact that the Commission only granted access to the documents after receiving clearance from the Spanish and French authorities. The complainant added that, pursuant to Regulation 1049/2001, this was not an acceptable reason.

The Ombudsman's assessment

22. The Ombudsman considers that, as the Commission correctly suggested, the claim that the Commission should grant access to the replies given by France and Spain to the Standard Remuneration Questionnaire has become devoid of purpose in the present circumstances. Indeed, it is clear that there is no need for the Ombudsman to assess whether the Commission should disclose the documents in question after they have been effectively disclosed.

23. As regards the allegation that the Commission failed to disclose the documents in question, it is true that failure to grant access to documents in good time in itself constitutes an act of maladministration. The fact that the Commission subsequently granted access to the documents concerned does not necessarily eliminate this instance of maladministration. However, the Ombudsman notes that the procedural aspects of the handling of the relevant request for access are the subject of the complainant's second allegation. He therefore considers that it is appropriate to address the above issue in the context of examining the second allegation. Thus, the Ombudsman will consider in the following section the complainant's arguments relating to the allegedly wrong reasons which the Commission used to justify its decision to withhold the documents after the expiry of the applicable deadlines.

24. In view of the foregoing, the Ombudsman finds that there are no grounds for further inquiries in relation to the first allegation and the related claim.

B. Allegation of failure to respect the deadlines established in Regulation 1049/2001

Arguments presented to the Ombudsman

25. In its opinion, the Commission indicated that, although the dialogue with the Member States' authorities tends to prolong the handling of confirmatory applications, the time taken in the present case could not be regarded as unreasonable. The Commission acknowledged, however, that it had not handled the complainant's confirmatory application within the time-limits established in Regulation 1049/2001. It added that it apologised to the complainant for the considerable time taken in its decisions of 6 and 28 October 2011 regarding the confirmatory application.

26. In his observations, the complainant noted that the Commission acknowledged its infringement of the time limits established in Regulation 1049/2001 and apologised for the delay. However, the complainant emphasised that the Commission must respect the time limits established in Regulation 1049/2001.

27. According to the complainant, if a Member State requests the Commission not to disclose a document originating from that Member State but fails to communicate its reasons for this refusal within the applicable time limits, the Commission has no valid reason to reject the request for access to documents. Thus, the complainant strongly objected to the fact that the Commission apparently refused to grant access to the documents concerned within the applicable time limits, on the ground that the consultations with the Member States were still ongoing.

28. The complainant argued that the Commission is not allowed to withhold documents until a Member State agrees to their release, without providing any justification. Moreover, he added that the Commission's poor handling of the case also contributed to the considerable delay in handling his request.

The Ombudsman's assessment

29. As a preliminary matter, the Ombudsman notes that Regulation 1049/2001 establishes the principle of public access to all documents held by the European Commission, the Council of the European Union and the European Parliament, unless the institution to which a request for access is submitted can show that one of the exceptions set out in Articles 4(1) to (3) of the Regulation applies. The scope of Regulation 1049/2001 covers documents held by these institutions even if the documents originate from third parties, including from a Member State.

30. As regards third party documents, the Ombudsman notes that Article 4(4) of Regulation 1049/2001 provides that the institution shall consult the third party with a view to assessing whether an exception in paragraph 4(1) or 4(2) is applicable, unless it is clear that the document shall or shall not be disclosed.

31. However, as far as documents originating from a Member State are concerned, Article 4(5) of Regulation 1049/2001 provides that a Member State may request the institution not to disclose without its prior agreement a document originating from that Member State.

32. It should be noted that the Commission's letter of 13 October 2010, which rejected the initial request for access, relied explicitly on the exception established in Article 4(3) of Regulation 1049/2001, namely, that disclosure would seriously undermine the institution's decision-making process. However, the Commission subsequently did not invoke this exception again in relation to the confirmatory application.[6] Instead, it seems that the Commission's refusal to grant access to the documents requested by the complainant was implicitly based on an interpretation of Article 4(5) of Regulation 1049/2001, according to which access to documents originating in a Member state was only possible if that Member State consented to disclosure. In fact, in its letter to the complainant dated 6 October 2011, the Commission made the following statement: "Following the positive outcome of the new consultation of the Spanish authorities as regards the document originating from this Member State, I am pleased to inform you that full access can be granted to this document, which you will find enclosed [...]. As regards the document originating from the French authorities, the relevant consultation procedure is still ongoing. We are therefore not yet in a position to provide you with a final reply to your request in this respect." Furthermore, the above conclusion would appear to be confirmed by the Commission's reference in its opinion to "the dialogue with the Member States' authorities" as one of the reasons for the delayed handling of the request.

33. In relation to the interpretation and implications of Article 4(5) of Regulation 1049/2001, the Court of Justice held as follows in Sweden v Commission:[7]

"85. As to the procedural implications of Article 4(5) of Regulation No 1049/2001 so interpreted, it should be noted, in the first place, that where the implementation of rules of Community law is thus entrusted jointly to the institution and the Member State which has made use of the possibility granted by that provision, and such implementation consequently depends on the dialogue to be carried on between them, they are obliged in accordance with the duty of loyal cooperation set out in Article 10 EC to act and cooperate in such a way that those rules are effectively applied.

86. It follows, first, that an institution which receives a request for access to a document originating from a Member State and that Member State must, once that request has been notified by the institution to the Member State, commence without delay a genuine dialogue concerning the possible application of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, while paying attention in particular to the need to enable the institution to adopt a position within the time-limits within which Articles 7 and 8 of the regulation require it to decide on the request for access.

87. Next, if the Member State concerned, following such dialogue, objects to disclosure of the document in question, it is obliged, contrary to what the Court of First Instance held in paragraph 59 of the judgment under appeal, to state reasons for that objection with reference to those exceptions.

88. The institution cannot accept a Member State’s objection to disclosure of a document originating from that State if the objection gives no reasons at all or if the reasons are not put forward in terms of the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001. Where, despite an express request by the institution to the Member State to that effect, the State still fails to provide the institution with such reasons, the institution must, if for its part it considers that none of those exceptions applies, give access to the document that has been asked for."(emphasis added)

34. Moreover, it is also clear from the case law that the time limits established by Regulation 1049/2001 to deal with requests for access to documents are mandatory.[8]

35. Thus, the fact that the institution has initiated a dialogue with the Member State from which the document requested originates does not entitle it to exceed the time limits established in Regulation 1049/2001. The Commission remains in any event bound to decide on a request for access within the said time limits, either by granting access or by explaining, on the basis of one or more of the exceptions listed in Article 4(1) to (3) of Regulation 1049/2001, why no access can be granted.

36. In the present case, the deadline to handle the confirmatory application expired on 9 December 2010. However, the Commission only gave access to the documents requested on 6 and 28 October 2011. The Commission itself does not dispute that it exceeded the applicable time limits.

37. As regards the complainant's argument that the Commission's poor handling of his request contributed to the considerable delay, the Ombudsman notes the following. As recorded in the report of the inspection of the file, the Commission's representatives informed the Ombudsman's representatives during the inspection that, until the Ombudsman opened the present inquiry, the confirmatory application had not been handled since at least February 2011. The Commission's representatives stated that this was due to difficulties in prioritising the files. They added that the Commission's service which handled confirmatory applications had been assigned one additional staff member approximately at the time of the Ombudsman's inspection.

38. The Ombudsman notes that an institution cannot invoke the lack of staff or other internal difficulties to justify its failure to comply with the obligations imposed upon it under Regulation 1049/2001. The institutions must take the necessary measures in order to be able to fulfil their tasks.[9] Therefore, the Commission's view that it had difficulties to prioritise the files and that it did not have sufficient staff cannot be accepted as a valid justification for its failure to respect the deadlines established in Regulation 1049/2001.

39. In view of the foregoing, the Ombudsman concludes that the Commission committed an instance of maladministration by failing to comply with the time-limits established in Regulation 1049/2001. The Ombudsman further concludes that the fact that the Commission had not completed the consultation process with the Member States concerned before the deadline expired was an insufficient reason not to grant access to the documents requested by the complainant. Moreover, the Commission cannot invoke the lack of staff or other internal difficulties to justify its failure to respect the deadlines established in Regulation 1049/2001.

40. The Ombudsman notes that the Commission has apologised for the delay. However, the Commission's apology only concerns the considerable time that lapsed between the confirmatory application and its replies. It does not appear to relate to the reason for this delay, i.e., the fact that the Commission accepted that the consultation of the Member States concerned took up several months. In fact, it emerges from the Commission's letters of 6 and 28 October 2011 and from its opinion in the present case that the Commission still appears to consider that the need to consult the Member States under Article 4(5) of Regulation 1049/2001 entitles it to exceed the deadlines set out in Regulation 1049/2001 for answering requests for access. However, as the Court of Justice has made clear in its above-mentioned judgment in Sweden v Commission[10], this assumption is entirely unfounded. Thus, there is a clear risk that the Commission's approach may lead to the occurrence of delays in similar cases in the future. Therefore, in view of the foregoing, the Ombudsman considers it appropriate to issue a critical remark in the present case.

C. Conclusions

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

There are no grounds for further inquiries in relation to the first allegation and the related claim.

As regards the second allegation, it should be recalled that the institutions are obliged to handle requests for access within the short deadlines established by Regulation 1049/2001. The Commission clearly failed to respect the time limits in the present case, when handling a request for access to the replies given by France and Spain to the Standard Remuneration Questionnaire. This constitutes maladministration.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 May 2012

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[1] Article 65(1) of the Staff Regulations establishes the following: "The Council shall each year review the remunerations of the officials and other servants of the Communities. This review shall take place in September in the light of a joint report by the Commission based on a joint index prepared by the Statistical Office of the European Communities in agreement with the national statistical offices of the Member States; the index shall reflect the situation as at 1 July (1) in each of the countries of the Communities. During this review the Council shall consider whether, as part of economic and social policy of the Communities, remuneration should be adjusted. Particular account shall be taken of any increases in salaries in the public service and the needs of recruitment."

[2] 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 L145/43.

[3] Article 4(4) of Regulation 1049/2001 establishes the following: "As 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."

[4] On 19 April 2012, following a request from the Ombudsman's services, the Commission's services provided a copy of the Commission's cover letter.

[5] On 19 April 2012, following a request from the Ombudsman's services, the Commission's services provided a copy of the Commission's cover letter.

[6] It is rather doubtful whether the said exception could at all apply in a situation such as the present one, in which the Commission agreed to disclose the replies to the questionnaire from six Member States and refused to grant access to the replies from two other Member States. Indeed, it is difficult to see why the disclosure of the replies from six Member States would not seriously undermine the decision-making process, while the disclosure of the replies from Spain and France would.

[7] See Case C-64/05 P, Sweden v Commission [2007] ECR I-11389, paragraphs 85 to 89. See also the very recent ruling of the General Court in Case T-59/09, Germany v Commission, judgment of 14 February 2012 (not yet reported), which confirms and further develops the previous case-law of the Court of Justice.

[8] See, for instance, Joined Cases T-355/04 and T-446/04 Co-Frutta v Commission, judgment of 19 January 2010 (not yet reported), which established in paragraph 56 that "[t]he period of 15 working days – which may be extended – within which the institution must reply to the confirmatory application, as laid down in Article 8(1) and (2) of Regulation No 1049/2001, is mandatory."

[9] See, for instance, in the context of requests for access to documents, the Opinion of AG Kokott in Case C-139/07 P, Commission v Technische Glaswerke Ilmenau [2010] ECR I-5885, paragraphs 64 and 65, and the Opinion of AG Léger in Case C-353/01 P, Mattila v Council of the European Union [2004] ECR I-1073, paragraph 74.

[10] See point 86 of the judgment (cited in point 32 above), according to which the Commission and the Member State must enter into a genuine dialogue as regards the possible disclosure of the documents to which access is requested "while paying attention in particular to the need to enable the institution to adopt a position within the time-limits within which Articles 7 and 8 of the regulation require it to decide on the request for access."