The background

1. In May 2011, the Ombudsman launched a programme of visits to EU agencies with the aim of identifying and spreading best practices used by the agencies in their relations with citizens[1]. These visits are formally carried out on the basis of the Ombudsman's competence to conduct own-initiative inquiries. The visit to Eurojust took place on 6 June 2012.

2. Eurojust was set up by Council Decision 2002/187/JHA of 28 February 2002 (the "Eurojust Decision"[2]). Its mission is to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime. Eurojust's competence extends to crime and offences such as terrorism, drug trafficking, trafficking in human beings, money laundering, criminal offences affecting the European Union's financial interests, and participation in a criminal organisation.

3. To date, the Ombudsman has conducted only a limited number of inquiries (seven in total) involving Eurojust. These inquiries have, for the most part, shown that Eurojust is willing to cooperate with the Ombudsman to further improve its administration. One of the seven aforementioned inquiries (case 2168/2012/BEH) was closed on 10 December 2012 because it was considered more effective to deal with the matters raised in that complaint within the framework of the present own initiative inquiry.

4. Following the visit in this case, the Ombudsman drew up a report[3] in which he made nine suggestions. The Director of Eurojust responded to these suggestions in detail[4], confirming that "Eurojust strives to maintain its high commitment to an administrative culture of service to citizens and welcomes the suggestions which aim at reinforcing it even further". In the analysis below, the Ombudsman will examine Eurojust's replies to his suggestions one by one. The observations of the complainant in case 2168/2012/BEH will also be taken into account in the framework of the present inquiry.

(1) Suggestion to make Eurojust's Code of Good Administrative Behaviour more prominently visible on its website

Eurojust's reply

5. Eurojust stated that its Code of Good Administrative Behaviour was published on its website[5].

The Ombudsman's assessment

6. The Ombudsman notes that the suggestion made in his report of 16 January 2013 was linked to the difficulty in finding the Code on Eurojust's website (a citizen would need to go to the document library section of the site, and subsequently to "other relevant documents" under the "Eurojust legal framework"). Eurojust's reply does not show that the Code has been made more prominently visibly. The Ombudsman will thus reiterate the suggestion made by making a further remark.

(2) Suggestion to establish a public register of documents

Eurojust's reply

7. Eurojust stated that it currently has no public register of documents in place, but that its intention is to have such a register for non-case related documents.

8. As regards non-case-related documents, Eurojust explained that it has a document management system (DMS) in which it stores such documentation. In the near future, Eurojust is planning to migrate to a new DMS, the technical specifications of which would make it easier to develop a public register of non-case related documents. Eurojust however stated that the Document Library on its website will be further expanded to make as many documents as possible publicly available.

9. As regards case-related documents, Eurojust explained that they are stored in the secure environment of the case management systems (CMS) which is only accessible to national members of Eurojust and to those authorised by the Eurojust Decision. The CMS constitutes an essential tool in the management and coordination of investigations and prosecutions for which Eurojust provides assistance. Therefore, due to the "judicial cooperation" nature of Eurojust's case-related documents, a public register was not envisaged when the College of Eurojust adopted the Decision of 13 July 2004 to Adopt Rules regarding Public Access to Eurojust Documents[6]. Nor is it contemplated in the future for case-related documents.

The observations of the complainant in case 2168/2012/BEH

10. The complainant, referring to Eurojust's statement that it has the intention to have a register for non-case related documents, stated that it could be expected that such a register would only contain a small proportion of documents produced or received by Eurojust. He also argued that a precise date was necessary.

The Ombudsman's assessment

11. The Ombudsman is pleased to note that Eurojust intends to set up a public register for non-case related documents. She hopes that Eurojust will develop such a public register as soon as possible. As her own Office is in the final stages of setting up its public register, she reiterates the offer of assistance to Eurojust in developing its public register. The Ombudsman expects that Eurojust will inform her as soon as the register has been set up and will make a further remark in this regard.

(3) Suggestion that, once a public register is established, information on the number of sensitive documents not recorded in the register could be included in the "Public access to Eurojust documents" overview in its annual reports.

Eurojust's reply

12. Eurojust stated that this suggestion would be included in the discussions linked to the process of redrafting Eurojust's rules on Public Access to Documents in light of the outcome of the recast of Regulation 1049/2001.

The observations of the complainant in case 2168/2012/BEH

13. The complainant argued that "sensitive documents" cannot be treated as a category of documents to which access is automatically refused. The complainant stated that Eurojust had not responded to the Ombudsman's suggestion that, at the very least, a reference number should be recorded in the public register. The complainant also pointed out that Eurojust knows that there has been an institutional "impasse" for over three years on the recast of Regulation 1049/2001 and that there is little prospect that this will be resolved in the near future. The complainant argued that Eurojust should redraft its rules on Public Access to Documents immediately.

The Ombudsman's assessment

14. The Ombudsman welcomes Eurojust's statement that this suggestion will form part of the discussions aimed at redrafting Eurojust's Decision on Access to Documents. However, the Ombudsman notes that Eurojust has not specifically replied to the suggestion made in paragraph 29 of the report that, at the very least, a reference number of sensitive documents should be recorded in the public register, in a manner which would not identify their content. The Ombudsman will make a further remark calling on Eurojust to take this into account when it brings its Decision into line with Regulation 1049/2001 as it currently stands, notwithstanding the need to revisit this issue in the event that Regulation 1049/2001 is revised.

(4) Suggestion to bring Eurojust's Decision on Public Access to Documents in line with Regulation 1049/2001 as regards a) the time-limit for dealing with initial and confirmatory requests for access and b) the indication of the possibilities of appeal

Eurojust's reply

15. As regards point a), Eurojust stated that, due to its specific remit, a time-limit of 30 (and not 15) working days is considered necessary in the context of processing access to documents requests concerning case-related matters in order to allow Eurojust National Members sufficient time to consult with their counterparts in national authorities and for subsequent internal consultation. The same time-limit applies to all requests for access to documents in order to avoid any confusion for applicants, particularly as regards 'mixed requests' which concern both case-related and non-case-related documents and in the interests of administrative efficiency. Notwithstanding this, Eurojust strives to process requests for access within a shorter time-period where possible.

16. As regards point b), Eurojust stated that, in the event of a partial or total refusal of access, it has been standard practice (since the Eurojust Decision on Public Access to Documents entered into force) to inform applicants of the appeal possibilities in replies to confirmatory applications. Eurojust added that it undertook to explicitly indicate the appeal possibilities in its future revised Decision.

The observations of the complainant in case 2168/2012/BEH

17. As regards point a), the complainant argued that, while he can accept that 30 days may be needed to consult National Members for case-related documents, requests for access to non-case related documents should be dealt with within 15 working days. As regards point b), the complainant argued that Eurojust should immediately revise its Decision on Public Access to Documents. The complainant stated that it was quite extraordinary that Eurojust had been allowed to operate for nine years with a Decision which deviates substantially from the principles of Regulation 1049/2001. The complainant argued that Eurojust was postponing the revision of its Decision to an undefined point in the future.

The Ombudsman's assessment

18. The Ombudsman notes that recital 1 of the Eurojust Decision on Public Access to Documents states that, according to Article 39 of the Eurojust Founding Decision (2002/187/JHA), the College of Eurojust shall adopt rules for access to Eurojust documents "taking into account the principles and limitations" of Regulation 1049/2001. One of the principles of the Regulation is that initial and confirmatory requests shall be dealt with within 15 working days. The Ombudsman is not convinced by the arguments put forward by Eurojust that, as regards case-related documents, its specific remit and consultation of the national authorities requires 30 working days (namely six weeks) instead of 15 for dealing with such requests. The Ombudsman does not consider that consultation of the national authorities justifies a general extension of the deadline by 15 additional working days. Regulation 1049/2001 does not envisage an automatic extension of the deadline when a third party needs to be consulted. The interpretation of the Court of Justice (in Sweden v. Commission[7]) of the provisions concerning consultation of Member States confirms this view. The Ombudsman is even less convinced by Eurojust's additional argument that, in order to avoid confusion, a 30 working day deadline should also apply to non-case related documents, especially since - as pointed out in paragraph 17 of his report - the figures show that Eurojust in fact replies to requests for access to non-case related documents within two weeks (10 working days). Moreover, the Ombudsman draws Eurojust's attention to the fact that FRONTEX, an EU agency which also referred to the specific and sensitive nature of its tasks and which equally cooperates closely with Member State authorities, foresees, in its recently adopted decision on public access to documents and in line with Regulation 1049/2001, a 15 working day deadline for dealing with initial and confirmatory applications[8]. The Ombudsman therefore invites Eurojust to follow that example and to amend its rules in line with the principles of Regulation 1049/2001. She will make a further remark in this regard.

19. As regards the indication of the possibilities of appeal, the Ombudsman is happy to note that Eurojust has, in its replies to the confirmatory applications, informed applicants of the appeal possibilities. The Ombudsman also welcomes Eurojust's commitment to indicate the appeal possibilities in its future revised Decision. As indicated above, the Ombudsman urges Eurojust to revise its Decision as soon as possible.

(5) Suggestion to bring Eurojust's Decision on Public Access to Documents in line with Article 4(3) of Regulation 1049/2001

Eurojust's reply

20. Eurojust agreed to implement the Ombudsman's suggestion in the future revised Decision on Public Access to Documents.

The Ombudsman's assessment

21. The Ombudsman welcomes Eurojust's commitment to implement this suggestion and urges Eurojust to revise its Decision as soon as possible.

(6) Suggestion to inform non-shortlisted candidates in selection procedures of the outcome of their application

Eurojust's reply

22. Eurojust stated that it had already modified its practice in this regard: since 21 February 2013, Eurojust has been informing all applicants, including unsuccessful ones, about the outcome of their applications.

The Ombudsman's assessment

23. The Ombudsman commends Eurojust for having taken concrete measures in response to this suggestion.

(7) Suggestion to inform candidates, in the notice of vacancy, that they may complain to the Ombudsman

Eurojust's reply

24. Eurojust stated that, from April 2013 onwards, it would systematically inform candidates, in the notice of vacancy, that they may complain to the European Ombudsman.

The Ombudsman's assessment

25. The Ombudsman commends Eurojust's actions in this regard.

(8) Suggestion to include in the tender and contract documents and on its website information on the right to complain to the Ombudsman

Eurojust's reply

26. Eurojust stated that, on 1 February 2013, it inserted the following text on its webpage on procurement procedures:

"Remedies

The court responsible for hearing appeal procedures is the General Court of the European Union. The European Ombudsman investigates complaints about maladministration in the institutions and bodies of the European Union".

27. In addition, Eurojust inserted the same text in its tender specifications template and included the website addresses of both the General Court and the European Ombudsman.

The Ombudsman's assessment

28. The Ombudsman commends Eurojust for having taken concrete measures to implement this suggestion.

(9) Suggestion to inform staff of the Public Service Principles and to make these Principles and the Ombudsman's Guide to complaints available on its website.

Eurojust's reply

29. Eurojust stated that it had already implemented this suggestion: on 25 March 2013, it published the Public Service Principles and the Ombudsman's Guide to complaints on its website[9]. Eurojust further explained that it had published the two documents on its intranet site.

The Ombudsman's assessment

30. The Ombudsman commends Eurojust for having taken concrete measures to inform its staff of the Public Service Principles.

Conclusion

31. On the basis of her examination of Eurojust's reply, the Ombudsman concludes that Eurojust has taken appropriate steps to adopt most of the suggestions made in the Ombudsman's letter of 16 January 2013. However, with regard to some of the suggestions relating to access to documents, the Ombudsman makes the further remarks below. In particular, she encourages Eurojust to follow the example of Frontex in respect of the deadlines for dealing with requests for access. The Ombudsman underlines the importance of agencies implementing access to documents policies that are consistent with the framework defined in Regulation 1049/2001. The Ombudsman trusts that Eurojust will reply positively in the follow-up to her further remarks. The Ombudsman therefore closes her inquiry.

Eurojust and the complainant in case 2168/2012/BEH will be informed of this decision.

Further remarks

Eurojust could make its Code of Good Administrative Behaviour more prominently visible on its website.

Eurojust could consider revising, as soon as possible, the College of Eurojust's Decision of 13 July 2004 to Adopt Rules regarding Public Access to Eurojust Documents, to bring it into line with Regulation 1049/2001, and this independently from the ongoing revision of the Regulation. This revision could concern in particular i) the deadlines for dealing with initial and confirmatory applications, ii) the indication of the possibilities of appeal and iii) the formulation of Article 4(3) of the College of Eurojust's Decision.

Eurojust could consider setting up a Public Register of documents as soon as possible. This Register should include at least the references of sensitive documents, in a manner which would not identify their content.

 

Emily O'Reilly

Done in Strasbourg on 11 June 2014

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[1] Information on the visits to the EU agencies can be found at: www.ombudsman.europa.eu/activities/visits.faces

[2] Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (OJ 2002 L 63, p. 1), as amended by Council Decision 2003/659/JHA of 18 June 2003 (OJ 2003 L 245, p. 44) and by Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust (OJ 2009 L 138, p. 14). The consolidated version of the Eurojust Decision is available at:

http://eurojust.europa.eu/doclibrary/Eurojust-framework/ej-legal-framework/Pages/ej-decision.aspx

[3] http://www.ombudsman.europa.eu/en/activities/visitreport.faces/en/48925/html.bookmark

[4] http://www.ombudsman.europa.eu/en/activities/visitreport.faces/en/50149/html.bookmark

[5] http://eurojust.europa.eu/doclibrary/eurojust-framework/ej-legal-framework/pages/other-relevant-documents.aspx

[6] http://eurojust.europa.eu/about/Pages/Access-to-documents.aspx

[7] Case 64/05 P Sweden v Commission [2007] ECR I-11389, see in particular paragraph 86.

[8] See the decision of the Management Board of FRONTEX of 19 February 2014 on public access to documents of FRONTEX, available at http://www.ombudsman.europa.eu/en/activities/visitreport.faces/en/54007/html.bookmark

[9] http://www.eurojust.europa.eu/doclibrary/Pages/eu-framework.aspx