Strasbourg, 26 May 2005

Dear Dr. K.,

On 9 March 2004, you made, acting on behalf of Internationaler Hilfsfonds e.V., a complaint to the European Ombudsman concerning the European Commission's alleged failure to grant you full access to its file.

On 22 March 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 6 July 2004. I forwarded it to you on 15 July 2004 with an invitation to make observations, which you sent on 22 September 2004.

On 4 October 2004, I asked the Commission to provide further information in relation to your complaint. The Commission sent its reply on 9 December 2004.

On 15 December 2004, I asked the Commission for access to a certain document (an e-mail of 23 September 1999). You were informed accordingly the same day, and a copy of the Commission's reply to my request for further information was forwarded to you on that occasion.

On 23 December 2004, you made further comments in relation to your complaint. In particular, you asked the Ombudsman to inform the European Parliament about what you considered to be the delaying tactics and the unjustified excuses of the Commission.

On 11 January 2005, my services inspected the e-mail of 23 September 1999 on the Commission's premises. A copy of the relevant document was taken on that occasion.

On 18 January 2005, I forwarded a copy of the report on this inspection (without the copy of the relevant document) to you, inviting you to make observations on this report and on the Commission's reply to my request for further information that I had already sent to you. You submitted your observations on 4 March 2005.

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

THE COMPLAINT

In November 2001, the complainant, a German NGO, lodged a complaint (1702/2001/GG) against the European Community Humanitarian Office (ECHO) concerning its application for signing the “Framework Partnership Agreement”. In this complaint, the complainant made several allegations, including (a) an allegation that the Commission’s insistence on checking the complainant’s compliance with the eligibility requirements by means of an audit constituted discrimination and (b) an allegation that the Commission had failed to give the complainant access to its file. In his decision of 21 May 2002, the Ombudsman came to the conclusion that in so far as allegation (a) was concerned, the complainant had not shown that there had been discrimination. As to allegation (b), the Ombudsman found that the Commission had not contested the complainant’s right to access. The Ombudsman also noted that such access had in the meantime been granted. In these circumstances, the Ombudsman considered that there appeared to be no maladministration in so far as this allegation was concerned. The case was therefore closed. The Ombudsman's decision made a number of critical remarks, however, as regards other aspects of the complaint.

The complainant subsequently obtained access to another file of the Commission. The list of documents for this file (concerning LIEN contract 97-2011) comprised two e-mails that had, according to the complainant, been sent by the relevant service of the Commission to ECHO (an e-mail from T. J. to Mr/Mrs V. at ECHO of 23 September 1999 and an e-mail from Mr/Mrs J. to Mr/Mrs S.). According to the complainant, these documents were not part of the file to which it had been granted access. The complainant further alleged that it had only belatedly discovered that what it had considered to be an internal e-mail of ECHO dated 8 August 2001 was in reality a message to the German Foreign Office. According to the complainant, the file to which it had been granted access had not contained the reply that the German Foreign Office had presumably given to this e-mail. On the basis of a note drawn up by ECHO on 17 November 1995 (to which the complainant had been given access), the complainant further assumed that there must be another document to which it had not been given access. The complainant therefore claimed that it should be given access to information that in its view had been provided by Mr S., a Commission official.

In its complaint to the Ombudsman, the complainant thus basically alleged that the Commission had failed to grant it full access to its file concerning its application for signing the “Framework Partnership Agreement” handled by ECHO.

In its complaint, the complainant also made comments regarding the Ombudsman’s decision on allegation (a). However, given that no allegations appeared to have been made in this context the Ombudsman informed the complainant that these comments would not be dealt with in the present inquiry.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The relevant file concerned the complainant's application to sign the “Framework Partnership Agreement”. It was therefore a thematic file, with no vocation whatsoever to contain every document, however related to the complainant, exchanged within the Commission. The file was supposed to contain official documents, such as letters and notes. As a rule, e-mails were informal communications, equivalent to a telephone call, unless they were registered by the archive service in that they constituted an official exchange of information. Unregistered e-mails could be enclosed in a file, if deemed relevant, but were not filed systematically and any insistence that a file should contain the entirety of the e-mails exchanged among individuals on a given topic was simply unrealistic.

The documents the complainant alleged had been removed from the file to which the complainant was given access on 15 January 2002 were the following:

a) two e-mails from an SCR official (SCR subsequently became "EuropeAid Co-operation Office") to two Commission officials, one sent on 23 September 1999, another with no specific date;

b) one reply (either written or verbal) that the German Foreign Office should have provided to an e-mail from ECHO of 8 August 2001; and

c) one message (of unspecified nature) that an official of Directorate-General ("DG") Development might have sent to an ECHO official in 1995.

As regards the documents mentioned under a), a search had been carried out which had led to retrieving an e-mail from the SCR to ECHO of 23 September 1999. No record of any answer given by ECHO to the SCR in writing had been found. No record of a second e-mail from SCR had been found on the basis of the references provided in the complaint. However, assuming that this e-mail had also been sent in 1999 it could not have been addressed to ECHO, given that in 1999 the recipient indicated by the complainant had worked in the SCR, and not in ECHO.

The following conclusions could therefore be drawn:

- the first e-mail certainly addressed to ECHO had been replied to orally and had had no further follow-up in writing;

- the second e-mail had been part of an internal exchange of information within the SCR and had not been copied to ECHO;

- the ECHO department in charge did not deliberately withhold these e-mails from the complainant, since it had only learnt from the complainant of their existence and had only been able to ascertain the existence on ECHO servers of one of them on the basis of the indications provided by the complainant.

Under these circumstances, it was difficult to see why these e-mails should have been included in the file.

On 28 April 2004, the Commission's EuropeAid Co-operation Office had informed ECHO that these two e-mails were classified as confidential and could therefore not be provided to the complainant.

As regards the document mentioned under b), a direct reply from the German Foreign Office to ECHO's e-mail of 8 August 2001 had never been received, neither by e-mail nor by telephone. It should however be noted that one purpose - however secondary - of this e-mail had been to request updated information on any development in the judicial proceedings against the complainant in Germany. A communication from the German Foreign Office on this issue had been sent to ECHO on 15 November 2001, and this document had been on the file accessed by the complainant in January 2002. It would be surprising if the Ministry should have provided this information twice.

It should further be noted that the main and clearly identifiable purpose of ECHO's e-mail of 8 August 2001 had been to inform the German Foreign Office that it would request its permission to disclose the entire contents of the file to the complainant, including documents from third parties. Using this e-mail to demonstrate ECHO's unwillingness to give full access to the file therefore seemed to be a deliberate distortion of the Commission's intentions.

As regards the document mentioned under c), there was no documentary evidence about when, if, or how such information had been requested or obtained. If the relevant information had been provided orally, it was no longer possible to carry out an investigation by contacting the officials dealing with the file at that time (1995), as these officials were no longer in their posts.

In all cases, had the information been available, it was unclear what reasons or advantages ECHO would have had in censoring this source of information.

The complainant had made at least three affirmations (that a number of approaches had been needed to obtain such access, that access had been given thanks to the Ombudsman's intervention and that ECHO had at first deliberately withheld 22 pages from the application file) which could be proved to be false.

On the basis of the above, the Commission took the view that the complainant had not substantiated its allegation that the ECHO file had been deliberately manipulated in order to withhold relevant pieces of information from it. The documents mentioned by the complainant were either non-existent, had not been copied to ECHO or had not been included in the file to which the complainant had had access as they had had no relevance in the processing of that file.

The Commission submitted that the complainant's writing style amounted to verbal abuse. It also took the view that, by reiterating the same claim on the same subject, the complainant was abusing its right of complaint with the deliberate purpose of causing disturbance to the European institutions.

The complainant's observations

In its observations, the complainant maintained its complaint and insisted that it should be given access to the entire file of ECHO. As regards the e-mail of 8 August 2001, the complainant submitted that such e-mails were not written for the purpose of not receiving an answer. In case the reply had been given by telephone or otherwise, it had to be asked where the relevant note for the file had gone.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

Request for further information

On 4 October 2004, the Ombudsman therefore wrote to the Commission in order to ask for further information. In his letter, the Ombudsman noted that the Commission had mentioned that it had been able to find the e-mail sent to ECHO on 23 September 1999 by an SCR official but that its EuropeAid Co-operation Office considered that this e-mail was confidential and could therefore not be provided to the complainant. The Ombudsman therefore asked the Commission to explain on what legal basis and for which reasons access to this document had been denied.

The Commission's reply

In its reply, the Commission made the following comments:

The document at issue was not part of ECHO's file concerning the complainant's application for signing the “Framework Partnership Agreement” in 1996. It had had no pertinence to and no bearing on the processing of that file. The relevant document was part of another file concerning the complainant, held by the EuropeAid Cooperation Service. The Commission had informed the Ombudsman of its position as regards the disclosure of this document in its opinion on the Ombudsman's draft recommendation in case 1874/2003/GG. The document had been mentioned in this opinion as document 2 of File 4, Part I (i.e., among the documents not to be disclosed).

Request for access to the Commission's file

On 15 December 2004, the Ombudsman asked the Commission for access to the relevant document. The complainant was informed accordingly the same day.

The complainant's letter of 23 December 2004

On 23 December 2004, the complainant made further comments in relation to its complaint. In particular, the complainant asked the Ombudsman to inform the European Parliament about what it considered to be the delaying tactics and the unjustified excuses of the Commission. The complainant also submitted that the Ombudsman should inspect all the documents to which access had been refused, and not just one.

The inspection of the Commission's file

On 11 January 2005, the Ombudsman's services inspected the e-mail of 23 September 1999 on the Commission's premises. A copy of the relevant document was taken on that occasion.

The complainant's observations

A copy of the report on the inspection (without the copy of the relevant document) and of the Commission's reply to the Ombudsman's request for further information were sent to the complainant for its observations.

In its observations, the complainant maintained its complaint. It also submitted that there must be further documents on ECHO's file as regards (1) ECHO's contacts with the German Foreign Office and (2) ECHO's examinatory work and that it should be given access to these documents.

In addition to that, the complainant submitted comments on the handling of its application for signing the “Framework Partnership Agreement” by ECHO.

The complainant noted that the Commission had informed it, in a letter of 10 January 2002, that when dealing with its request for access to the file, "ECHO followed scrupulously the instructions given by the Secretariat General of the Commission, which was informed and consulted step by step from the very beginning." In the complainant's view, the documents proving this step-by-step consultation had been removed from the file. The complainant therefore called on the Ombudsman to find these documents and put them at its disposal or, if these documents could not be traced, to find that there was maladministration.

The complainant also commented on certain aspects of the Commission's opinion on complaint 2862/2004/GG. In addition to that, the complainant asked the Ombudsman to take into account any relevant facts that were mentioned in its observations on the Commission's opinion on that complaint(1).

THE DECISION

1 Introductory remarks

1.1 The complainant, a German NGO, had applied to the European Commission's European Community Humanitarian Office (ECHO) for signing the “Framework Partnership Agreement”. This application had given rise to a dispute between the complainant and the Commission and ultimately to a complaint to the European Ombudsman (complaint 1702/2001/GG). In this complaint, the complainant had inter alia alleged that the Commission had failed to give access to its file. During his inquiry, the Ombudsman found that the Commission had not contested the complainant’s right to access and that such access had in the meantime been granted. In these circumstances, the Ombudsman considered that there appeared to be no maladministration in so far as this allegation was concerned. The case was therefore closed. The Ombudsman's decision made a number of critical remarks, however, as regards other aspects of the complaint.

1.2 In March 2004, the complainant lodged a new complaint with the Ombudsman. In this complaint, the complainant alleged that the Commission had failed to grant it full access to its file. The complainant identified or described the documents to which access had been denied in its view. Two of these documents were mentioned in the list of documents in another Commission file (concerning LIEN contract 97-2011).

1.3 After having obtained the Commission's opinion, the Ombudsman decided to carry out further inquiries by asking the Commission for additional information and by inspecting a document on the Commission's file. In its observations on the results of these further inquiries, the complainant submitted that there must be further documents on ECHO's file as regards (1) ECHO's contacts with the German Foreign Office and (2) ECHO's examinatory work and that it should be given access to these documents.

1.4 The Ombudsman considers that by doing so, the complainant submitted a new allegation and thus invited the Ombudsman to enlarge the scope of the present inquiry so as to cover the further documents to which the complainant had referred. The Ombudsman considers, however, that there is not enough evidence to suggest that the documents referred to by the complainant exist. In these circumstances, the Ombudsman takes the view that there are insufficient grounds to ask the Commission for a supplementary opinion on the complainant's further allegation.

1.5 In its observations on the results of the further inquiries carried out by the Ombudsman, the complainant noted that the Commission had informed it, in a letter of 10 January 2002, that when dealing with its request for access to the file, "ECHO followed scrupulously the instructions given by the Secretariat General of the Commission, which was informed and consulted step by step from the very beginning." In the complainant's view, the documents proving this step-by-step consultation had been removed from the file. The complainant therefore called on the Ombudsman to find these documents and put them at its disposal or, if these documents could not be traced, to find that there was maladministration.

1.6 The Ombudsman considers that the complainant thus submitted a further allegation. This further allegation basically concerns access to the (internal) correspondence that appears to have been exchanged between ECHO and the Commission's Secretariat-General as regards the complainant's request for access to the Commission's file. It should be noted, however, that the complainant does not yet appear to have submitted a formal request for access to these documents. The request for access to the Commission's file that the complainant did make obviously could not cover the said documents, given that the relevant correspondence was only conducted after this request had been lodged. The Ombudsman furthermore considers that there is nothing to suggest that the Commission would be under an obligation to add such documents (which concern the internal procedures of the Commission concerning requests for access to documents) to the very file to which access is requested. In these circumstances, the Ombudsman takes the view that it would not be appropriate to extend his inquiry so as to cover this aspect of the case.

1.7 In its observations on the results of the further inquiries carried out by the Ombudsman, the complainant referred to another complaint he had lodged with the Ombudsman (complaint 2862/2004/GG), asking the latter to take into account any relevant facts that were mentioned in its observations on the Commission's opinion on that complaint. The Ombudsman has carefully considered the observations that were submitted by the complainant in case 2862/2004/GG(2). He considers, however, that these observations do not contain any factual elements that would affect the examination of the present complaint. In its observations in case 2862/2004/GG, the complainant took the view that the Commission had infringed Article 23 of the European Code of Good Administrative Behaviour(3) as regards its handling of the requests for access to documents. However, Article 23 of the Code states that requests for access to documents are to be handled in accordance with the rules adopted by the institution concerned and in accordance with the general principles and limits laid down in Regulation 1049/2001. Given that the complainant's original allegation was that the Commission had failed to comply with Regulation 1049/2001, the Ombudsman considers that the complainant's reference to Article 23 of the Code does not need to be addressed separately.

2 Alleged failure to grant full access to the Commission's file

2.1 The complainant alleged that the Commission had failed to grant it access to certain documents. These documents may (using the summary provided by the Commission in its opinion) be described as follows:

a) two e-mails from an SCR official (SCR subsequently became "EuropeAid Co-operation Office") to two Commission officials, one sent on 23 September 1999, another with no specific date;

b) one reply (either written or verbal) that the German Foreign Office should have provided to an e-mail from ECHO of 8 August 2001; and

c) one message (of unspecified nature) that an official of DG Development might have sent to an ECHO official in 1995.

2.2 In its opinion, the Commission made the following comments:

As regards the documents mentioned under a), a search had been carried out which had led to retrieving an e-mail from the SCR to ECHO of 23 September 1999. This e-mail had been replied to orally and had had no further follow-up in writing. No record of a second e-mail from the SCR had been found on the basis of the references provided in the complaint. However, assuming that this e-mail had also been sent in 1999 it could not have been addressed to ECHO, given that in 1999 the recipient indicated by the complainant had worked in the SCR, and not in ECHO. It was difficult to see why these e-mails should have been included in the file. On 28 April 2004, the Commission's EuropeAid Co-operation Office had informed ECHO that these two e-mails were classified as confidential and could therefore not be provided to the complainant.

As regards the document mentioned under b), a direct reply from the German Foreign Office to ECHO's e-mail of 8 August 2001 had never been received, neither by e-mail nor by telephone. It should however be noted that one purpose - however secondary - of this e-mail had been to request updated information on any development in the judicial proceedings against the complainant in Germany. A communication from the German Foreign Office on this issue had been sent to ECHO on 15 November 2001, and this document had been on the file accessed by the complainant in January 2002. It would be surprising if the Ministry should have provided this information twice.

As regards the document mentioned under c), there was no documentary evidence about when, if or how such information had been requested or obtained. If the relevant information had been provided orally, it was no longer possible to carry out an investigation by contacting the officials dealing with the file at that time (1995), as these officials were no longer in their posts.

On the basis of the above, the Commission took the view that the documents mentioned by the complainant were either non-existent, had not been copied to ECHO or had not been included in the file to which the complainant had had access as they had had no relevance in the processing of that file.

2.3 The Ombudsman notes that the documents mentioned under a) comprise two e-mails sent by an official of the Commission's SCR service (Mr J.) to Mr V. and Mr S. respectively. He further notes that in the inventory list for LIEN contract 97-2011, both messages are listed as having been sent on 23 September 1999.

The Commission argued that the second of these e-mails (the one sent to Mr S.) could not have been addressed to ECHO, given that in 1999 the recipient indicated by the complainant had worked in the SCR, and not in ECHO. The Ombudsman notes that the complainant did not dispute this statement. In these circumstances, the Commission's argument that this e-mail had not been included in the file to which the complainant had had access because it had had no relevance in the processing of that file appears to be reasonable.

As regards the other e-mail from Mr J., the Ombudsman notes that the Commission did not deny that this e-mail was indeed addressed to ECHO. In order to ascertain whether the Commission's argument that this e-mail did not need to be included in the file kept by ECHO, either, on the grounds that it had no relevance in the processing of that file was correct, the Ombudsman proceeded to an inspection of this document.

It should be noted that this document is among the documents which the Commission considered to be confidential when the complainant asked for access to its file concerning LIEN contract 97-2011. The request for access to this file has given rise to another complaint by the complainant (complaint 1874/2003/GG) which the Ombudsman closed on 14 December 2004 with a critical remark. This critical remark was based on the Ombudsman's view that the Commission had failed to provide valid reasons for refusing access to this and numerous other documents.

The inspection of the relevant e-mail showed that this message constituted a request for information from the SCR to ECHO. In the light of this, the Ombudsman considers that the Commission's decision not to include this e-mail in the file kept by ECHO was acceptable.

2.4 In so far as the reply supposedly given by the German Foreign Office to the e-mail of 8 August 2001 (the document mentioned under b) is concerned, the Ombudsman notes that in this e-mail ECHO informed the German Foreign Office that the complainant has asked for access to the Commission's file and that this file contains information provided by the German Foreign Office. ECHO further explained that it did not object to granting the complainant access to this information but that it would, in accordance with the rules then in force, only do so after the German Foreign Office had given its authorisation. It added that "an official request for authorisation will be sent to your office by Mrs [A.]". As regards the request for information on the complainant that was also contained in this e-mail, the Ombudsman notes that the complainant did not dispute the Commission's argument that such information was sent by the German Foreign Office on 15 November 2001. In these circumstances, the Ombudsman considers that the explanation provided by the Commission appears to be reasonable.

2.5 As regards the document mentioned under c), the Ombudsman notes that the internal note of 17 November 1995 (on which the complainant bases its assumption that such a document must exist) simply states that the recipient could contact another Commission official in order to obtain information ("tu pourrais t'informer d'une manière plus satisfaisante auprès de M. [S.]". Even on the (likely) assumption that this advice was followed, there is nothing to suggest that the information provided by Mr S. was given in writing. It is true that the complainant appears to assume that this ought indeed to have been done. It should be recalled, however, that the right of access to the Commission's file only covers existing documents. The question as to whether the Commission would have been obliged to keep a record of any information thus exchanged is therefore not covered by the present complaint.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) These observations were sent to the Ombudsman on 17 March 2005.

(2) These observations were sent to the Ombudsman on 17 March 2005.

(3) Available on the Ombudsman's website (http://www.ombudsman.europa.eu/).