Strasbourg, 13 July 2005

Dear Mr M.,

On 2 June 2004, you made a complaint to me against the European Parliament concerning access to the decision of the Appointing Authority modifying the place of employment of one of your colleagues.

On 30 June 2004, I forwarded the complaint to the President of the European Parliament. On 29 July 2004, the Register Service of the European Parliament informed me that the document to which you requested access was dated 19 November 2003, and not 20 February 2004, as mentioned by mistake in my letter of 30 June 2004 to the European Parliament.

On 21 September 2004, the European Parliament sent its opinion on the complaint.

On 4 October 2004, I sent you a further letter in which I informed you that the decision of the Appointing Authority, object of the present complaint, was dated 19 November 2003.

On 29 October 2004, I forwarded the opinion of the European Parliament to you with an invitation to make observations, which you sent on 10 November 2004.

I am writing now to let you know the results of the inquiries that have been made. I apologize for the length of time it has taken to deal with your complaint.

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant is an official of the European Parliament. On 20 February 2004, the complainant contacted the Register Service of the European Parliament and made a request for access to the decision of the Appointing Authority modifying the place of employment of one of his colleague, Ms G.C., to Saragossa (Spain) as of 1 January 2004. This document is dated 19 November 2003.

In its reply of 3 March 2004, the Register Service of the European Parliament informed the complainant that he had the possibility to request access to the relevant document entitled "Decision of the Appointing Authority modifying the place of employment of Ms G.C. to Saragossa (Spain) as of 1 January 2004" directly from the Appointing Authority.

On the same day, the complainant requested the Secretary General of the European Parliament to give him access to the decision of the Appointing Authority.

In his reply of 31 March 2004, the Secretary General stated that the complainant had to contact "the Director of Personnel" of the European Parliament. On 2 April 2004, the complainant wrote to the Director of Personnel and requested to have access to the document.

On 23 March 2004, the complainant lodged a complaint with the European Ombudsman (complaint 901/2004/MF). He stated that the Secretary General of the European Parliament had failed to give him access to the relevant decision. He claimed that he should be given access to this document. The Ombudsman understood that the complainant's request for access had been made under Regulation (EC) No 1049/2001(1). Given that the complainant did not appear to have made the confirmatory application foreseen in this regulation, the Ombudsman decided to close the case on the basis of article 2(4) of his Statute on 28 April 2004.

On 2 June 2004, the complainant again wrote to the European Ombudsman. He stated that, given that the Parliament had failed to reply to his letter dated 2 April 2004, which constituted, in his view, a refusal of his application for access, he had made the confirmatory application for access to documents on 3 May 2004. On 12 May 2004, the Director of Personnel had proposed a meeting. The complainant had refused this proposal, stating that he preferred the procedure under Regulation (EC) No 1049/2001 to be followed. On 19 May 2004, the Director of Personnel had informed him that he intended to give him access to the relevant document, unless the Head of the unit in charge of data protection had any objections.

The complainant's letter dated 2 June 2004 was registered as a new complaint by the European Ombudsman (complaint 1756/2004/MF).

In this complaint, the complainant alleged that the European Parliament had failed to give him access to the relevant decision within the deadline foreseen in Regulation 1049/2001.

The complainant claimed that the European Parliament should give him access to the relevant document.

THE INQUIRY

The Parliament's opinion

The opinion of the European Parliament on the complaint was in summary as follows:

In case of requests for access to documents made by officials of the European Parliament, and given that the latter benefit from a privileged access to the different sources of information, namely via the Documentation Centre and the Archives department, the Register Service of the Parliament advised the applicants not to use the procedure set out in Regulation 1049/2001 when the request for access concerned documents already made public. The aim of such an advice was to rationalize the treatment of the requests for access and to focus the efforts of the Register Service on the ever increasing number of requests for access to documents coming from citizens.

On 20 February 2004, the complainant had contacted the Register Service and made a request for access to the document entitled "Decision of the Appointing Authority modifying the place of employment of Ms G.C. to Saragossa (Spain) as of 1 January 2004".

Given that, in principle, the decisions of the Appointing Authority were published, the Register Service, on 3 March 2004, had informed the complainant that he had the possibility to request access to the said document directly from the Appointing Authority. The complainant had further been informed that, in case he should have difficulties obtaining the document from the Appointing Authority, he could request access to the document from the Register Service. In view of the absence of any further communication from the complainant, the Register Service had closed the case.

On 3 March 2004, the complainant had referred to the Appointing Authority in order to request access to the document. His request had not been dealt with within the legal framework of Regulation 1049/2001. The deadline foreseen in Regulation 1049/2001 had therefore not been taken into consideration and the Register Service had not been informed of the outcome of the complainant's request. Given that the DG in charge of giving access to the document had noted that the latter contained personal data, it had asked the Data Protection Officer to give an opinion on the application of the relevant Community legislation (Regulation (EC) No 45/2001(2)) to the document to which the complainant had requested access.

The Data Protection Officer had noted that the document to which the complainant had requested access contained personal data pursuant to Regulation 45/2001, and that its disclosure was governed by the exception set out in Article 4(1) point b) of Regulation 1049/2001. The Data Protection Officer had proposed that the document be disclosed, with the exception of parts of the document covered by the relevant exception, pursuant to Article 4(6) of Regulation 1049/2001.

The Ombudsman's letter dated 30 June 2004(3) sent to the then President M. Cox, had been brought to the attention of the Register Service on 19 July 2004. The Register Service had then noted that the document to which the complainant had requested access had not yet been forwarded to him. It had subsequently made the relevant approaches in order that an answer could be given to the complainant as soon as possible.

On 9 August 2004, an official letter signed by the Secretary General of the European Parliament had been sent to the complainant. The document to which the complainant had requested access had been enclosed. Parts of the document covered by the legislation on data protection had been blanked out. The Parliament had then received a reply from the complainant in which the latter had expressed the view that the change of the place of employment of Ms. G.C. had probably been the object of a decision of the Appointing Authority prior or simultaneous to the one dated "13 November 2003"(4). The complainant therefore requested access to this document. Given that this document did not exist, the complainant had been informed accordingly in a letter of the Secretary General dated 31 August 2004.

The legal uncertainty which resulted from the lack of hierarchy between the Staff Regulations, Regulation 1049/2001 and Regulation 45/2001 explained the lack of consistency in the treatment of the complainant's request.

It had to be pointed out that appropriate measures had been taken in order to enable the different services of the Parliament to deal rapidly with requests for access to documents, either by answering directly to the request in case of documents already made public, or by forwarding the request to the Register Service responsible for the application of the procedure set out in Regulation 1049/2001.

The complainant's observations

In his reply, the complainant maintained his complaint and made in summary the following further comments;

The decision of the Appointing Authority concerning the change of the place of employment of Ms. G.C. to Spain as from 1 January 2004 had never been published, in contrast with other decisions of the Appointing Authority modifying the place of employment of an official, which are published in accordance with Article 25 of the Staff Regulations(5).

On 20 February 2004, he had made a request for access to the decision of the Appointing Authority concerning the change of the place of employment of Ms. G.C. to the Register Service of the European Parliament. Following this request, he had successively received:

-an e-mail of 3 March 2004 from the Register Service in which he had been advised to refer directly to the Appointing Authority;

- a letter from the Secretary General dated 31 March 2004 informing him that the relevant decision had been taken on a provisional basis and asking him to contact the Director of Personnel;

- a letter from the Director of Personnel of 12 May 2004 in which the latter had expressed his regrets that, for inexplicable reasons, the complainant had not received his letter dated 6 April 2004, and in which the Director of Personnel had invited the complainant to a meeting in his office on 18 May 2004;

- a letter dated 17 May 2004 from the Director of DG Personnel and Social Affairs in which the latter had informed him that he intended to give him access to the document requested as soon as possible, unless the Head of the Department for the protection of personal data had any objections;

- a letter dated 6 July 2004 from the Director of Personnel in which a copy of a decision of the latter authorising Ms. G.C. to work in Spain had been enclosed;

- a letter dated 9 August 2004 from the Secretary General in which a copy of the decision of the Appointing Authority dated 19 November 2003 authorising Ms. G. C. to work in Spain had been enclosed;

- following his confirmatory application sent to the Secretary General on 11 August 2004, a letter of 31 August 2004 informing him that there was no specific decision of the Appointing Authority modifying the place of employment of Ms. G. C.

Six months after his confirmatory application for access to documents, he had thus received a copy of the decision of the Appointing Authority dated 19 November 2003 concerning the change of the place of employment of Ms. G.C. as from 1 January 2004. Parts of the document had been deleted in view of the protection of personal data.

He had not received the specific decision of the Appointing Authority modifying the place of employment of his colleague given that such a decision did not exist. In his view, however, only a specific decision of the Appointing Authority could lead to the change of place of employment of Ms G.C. If such a specific decision did not exist, there was an infringement of the rules related to the change of employment of officials and other agents.

In the meantime, the change of the place of employment of Ms. G.C. to Spain which had been decided on a provisional basis had been extended as from 1 July 2004 for six months. The decision on the extension had not been published.

THE DECISION

1 The scope of the Ombudsman's inquiry

1.1 On 20 February 2004, the complainant, an official of the European Parliament, requested the Register Service of the European Parliament to give him access to the decision of the Appointing Authority modifying the place of employment of one of his colleagues, Ms. G. C. On 2 June 2004, the complainant lodged a complaint with the European Ombudsman. He alleged that the European Parliament had failed to give him access to the relevant decision within the deadline foreseen in Regulation 1049/2001.

1.2 In its opinion, the European Parliament stated that, on 9 August 2004, an official letter signed by the Secretary General of the European Parliament had been sent to the complainant. The document to which the complainant had requested access had been enclosed.

1.3 In his observations, the complainant put forward that he had not received the specific decision of the Appointing Authority modifying the place of employment of his colleague given that such a decision did not exist. However, in the complainant's view, only a specific decision of the Appointing Authority could lead to the change of employment of Ms G.C. If such a specific decision did not exist, there was an infringement of the rules related to the change of employment of officials and other agents. The complainant further put forward that in the meantime, the change of the place of employment of Ms. G.C. to Spain which had been decided on a provisional basis had been extended for six months, as from 1 July 2004. The decision on the extension had not been published. The complainant thus appeared to make new allegations.

1.4 Concerning the allegation that the complainant had not received the specific decision of the Appointing Authority modifying the place of employment of his colleague, the Ombudsman notes that in its opinion, the Parliament stated that such a decision did not exist and that the complainant had been informed accordingly in a letter of the Secretary General dated 31 August 2004.

The Ombudsman notes that the decision of the Appointing Authority dated 19 November 2003 authorized the complainant's colleague, Ms G.C., to go and work in Spain, as of 1 January 2004, for a six-month period of time, eventually renewable. In the light of this decision, it is difficult to see what further decision should have been needed to enable Ms G.C. to work in Spain. The Ombudsman considers that the complainant has not submitted sufficient arguments or evidence to support his view that such another decision ought to exist. In these circumstances, the Ombudsman considers that the position adopted by the Parliament pursuant to which such a decision did not exist appears to be correct. Therefore, there appear to be no grounds for further inquiries into this aspect of the complaint.

The Ombudsman however notes that, in his observations, the complainant put forward that if such a specific decision did not exist, there was an infringement of the rules related to the change of employment of officials and other agents. He also stated that the decision on the extension of the change of the place of employment of Ms. G.C. to Spain for six months had not been published. The Ombudsman notes that these allegations were not included in the original complaint. He takes the view that it does not appear to be appropriate to extend the scope of this inquiry so as to include these new allegations presented in the complainants' observations because the complainant does not appear to have exhausted the internal remedies foreseen in Article 90 (2) of the Staff Regulations. The complainant is free to lodge a new complaint with the Ombudsman after having exhausted the internal remedies.

2 The allegation that the European Parliament had failed to give the complainant access to the relevant document within the deadline foreseen in Regulation 1049/2001

2.1 The complainant alleged that the European Parliament had failed to give him access to the decision of the Appointing Authority modifying the place of employment of one of his colleague, Ms G.C., to Saragossa (Spain) as of 1 January 2004 within the deadline foreseen in Regulation 1049/2001.

2.2 The Parliament stated that, on 20 February 2004, the complainant contacted the Register Service of the European Parliament and made a request for access to the relevant document. On 3 March 2004, the Register Service of the European Parliament had informed the complainant that he had the possibility to request access to the relevant document directly from the Appointing Authority. The complainant had further been informed that, in case he should have difficulties in obtaining the said document, he could request access to the document from the Register Service. On 3 March 2004, the complainant had requested the Secretary General of the European Parliament to give him access to the relevant document. On 31 March 2004, the Secretary General had informed the complainant that he had to contact the Director of Personnel of the European Parliament.

On 2 April 2004, the complainant had written to the Director of Personnel and had requested to have access to the document. On 3 May 2004, the complainant had requested access to the document entitled "Decision of the Appointing Authority modifying the place of employment of Ms G.C. to Saragossa (Spain) as of 1 January 2004".

On 9 August 2004, an official letter signed by the Secretary General of the European Parliament had been sent to the complainant. The document to which the complainant had requested access had been enclosed. Parts of the documents covered by the legislation on data protection had been blanked out.

The Parliament stated that the legal uncertainty which resulted from the lack of hierarchy between the Staff Regulations, Regulation 1049/2001 and Regulation 45/2001 explained the lack of consistency in the treatment of the complainant's request.

2.3 The Ombudsman notes that, in his observations, the complainant pointed out that six months after his confirmatory application for access had been made, he had received a copy of the decision of the Appointing Authority dated 19 November 2003 modifying the place of employment of Ms. G.C. as from 1 January 2004. The Ombudsman therefore considers that access to the document to which the complainant had requested access, namely the decision of the Appointing Authority modifying the place of employment of one of his colleague, Ms G.C., to Saragossa (Spain) as of 1 January 2004, had been granted to him by the Parliament.

The Ombudsman further notes that, in its opinion, the Parliament stated that parts of the document covered by the legislation on data protection had been blanked out. In the absence of any comment from the complainant which could call into question the Parliament's decision not to grant him access to certain parts of the document, the Ombudsman considers that access to the relevant document had been properly granted to the complainant by the Parliament.

2.4 The Ombudsman notes that the Parliament submitted, in its opinion, that a legal uncertainty had resulted from the lack of hierarchy between the Staff Regulations, Regulation 1049/2001 and Regulation 45/2001.However, principles of good administration require the institution in any event to act with consistency. Article 10 (1) of the European Code of Good Administrative Behaviour(6) namely states that "[t]he official shall be consistent in his own administrative behaviour as well as the administrative action of the Institution. (…)". A further remark will be made as regards the relationship between the legal provisions referred to by Parliament.

2.5 The Ombudsman notes that Article 7(1) of Regulation 1049/2001(7) states that: "An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article".

In the present case, the complainant clearly mentioned Regulation 1049/2001 as the legal basis for his request for access to documents on 3 May 2004. In the complainant's view, this request for access was a confirmatory application, given that the Parliament had failed to reply to his letter dated 2 April 2004. In his letter dated 3 May 2004, the complainant had clearly stated that his request for access was a confirmatory application.

2.6 The Ombudsman notes that in his letter of 9 August 2004, the Secretary General of the Parliament stated that "[t]he reply to your application for access to document had been examined in conformity with provisions of Regulation (EC) no 1049/2001". The Ombudsman considers that it clearly emerges from this statement that the Parliament intended to apply Regulation 1049/2001 to the complainant's case. However, the complainant had already lodged what he referred to as a confirmatory application on 3 May 2004. This confirmatory application followed requests for access to the relevant document made by the complainant to the Register Service of the European Parliament on 20 February 2004, to the Secretary General of the European Parliament on 3 March 2004 and to the Director of Personnel on 2 April 2004.

In these circumstances, the Ombudsman takes the view that the Parliament should thus have handled the complainant's letter of 3 May 2004 as a confirmatory application in conformity with Regulation 1049/2001 or explained the reasons why it considered that this letter should be treated as a new request for access.

The Ombudsman observes however that the Parliament neither handled the complainant's letter of 3 May 2004 as a confirmatory application nor explained the reasons why it considered that this letter should be treated as a new request for access.

The Ombudsman further notes that more than three months elapsed between the complainant's letter of request for access to which he referred as a confirmatory application dated 3 May 2004 and the day when the complainant was granted access to the relevant document. In these circumstances, the Ombudsman considers that, in any event, the Parliament's letter of 9 August 2004 in which the document to which the complainant had requested access had been enclosed, was belated. The Ombudsman therefore considers that the Parliament has failed to give access to the relevant document to the complainant within the deadlines foreseen in Regulation 1049/2001.

2.7 In view of the above, the Ombudsman considers that, by failing to give access to the relevant document within the deadlines foreseen in Regulation (EC) No 1049/2001, the European Parliament has failed to act with consistency and to respect Article 10 (1) of the European Code of Good Administrative Behaviour. This is an instance of maladministration. A critical remark will be made in this context.

3 The complainant's claim

3.1 The complainant claimed that the European Parliament should give him access to the relevant document.

3.2 The Ombudsman notes that the complainant finally did obtain access to the document requested, namely the decision of the Appointing Authority dated 19 November 2003 modifying the place of employment of Ms. G.C. as from 1 January 2004. The Ombudsman therefore considers that there is no need for further inquiries into this aspect of the complaint.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

By failing to give the complainant access to the relevant document within the deadlines foreseen in Regulation (EC) No 1049/2001, the European Parliament has failed to act consistently and to respect Article 10 (1) of the European Code of Good Administrative Behaviour. This constitutes an instance of maladministration.

Given that the complainant finally did have access to the document requested, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Further remark

In its opinion, the Parliament stated that there was legal uncertainty resulting from the lack of hierarchy between the Staff Regulations, Regulation 1049/2001 and Regulation 45/2001.

The Ombudsman considers that it is not excluded that Parliament could deal with requests for access to documents made by officials without applying the provisions on public access laid down in Regulation 1049/2001, unless the applicant has made it clear that he wishes his request to be dealt with on the basis of that Regulation. In the Ombudsman's view, it is for Parliament to resolve any problems that might arise in this context, either generally or when confronted with a request for access to documents. The Ombudsman considers that Parliament should in any event ensure that a rapid reply is given to the official's request for access.

The Ombudsman is confident that the Parliament will take the appropriate measures when dealing with requests for access to documents made by officials in the future.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) 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, Official Journal L 145, 31/5/2001, p. 43.

(2) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12/1/2001, p.1).

(3) The Ombudsman understands that the European Parliament here refers to the Ombudsman's letter dated 30 June 2004 in which he informed the President of the Parliament of the complaint.

(4) The Ombudsman assumes that this reference should read "19 November 2003".

(5) Article 25 of the Staff Regulations states that: "(…) Specific decisions regarding appointment, establishment, promotion, transfer, determination of administrative status and termination of service of an official shall be published in the institution to which the official belongs. The publication shall be accessible to all staff for an appropriate period of time".

(6) The European Code of Good Administrative Behaviour is available on the European Ombudsman's website at the following address: http://www.ombudsman.europa.eu/code/en/default.htm.

(7) See Article 7 of Regulation (EC) No 1049/2001 entitled "Processing of initial applications".