Strasbourg, 6 September 2005

Dear Mrs E.,

On 10 November 2004, you made a complaint to the European Ombudsman on behalf of RATS (Residents Against Toxic Site) concerning the European Commission's handling of a request for access to documents made under Regulation 1049/2001.

On 9 December 2004, I forwarded the complaint to the President of the European Commission. On the same day, I wrote to the United Kingdom Permanent Representation to the European Union and asked for information as to whether the UK authorities would object to the release of the documents to which you had requested access.

The Commission sent its opinion on your complaint on 8 February 2005. I forwarded it to you with an invitation to make observations, which you sent on 13 April 2005.

On 14 June 2005, I wrote to the Commission, making a further request relating to the complaint. The Commission sent its reply on 15 July 2005.

In a telephone conversation with my services on 24 August 2005, you explained that you consider the matter to have been settled.

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

THE COMPLAINT

According to the complainant, the relevant facts are, in summary, the following:

In 2002, RATS (Residents Against Toxic Site) made an Article 226 complaint(1) to the Commission (complaint 2002/4402) concerning the UK authorities' alleged failure to follow Community legislation as regards a large landfill site near the residents' homes. By letter of 9 February 2004, the Commission informed RATS of its intention to close the case. Since RATS assumed that the Commission had forwarded the allegations and evidence to the UK authorities and received replies, RATS requested access to the Commission's correspondence with the UK authorities.

By letter of 18 March 2004, the Commission refused access to the documents concerned on the basis of the exception in Article 4.2 of Regulation 1049/2001(2), arguing that a disclosure of the documents would undermine the protection of the purpose of inspections, investigations and audits. The Commission referred to a judgement by the Court of Justice and stated that the safeguarding of sincere co-operation and a climate of mutual confidence between the Commission and the Member State concerned by an infringement procedure warranted the refusal of access. The Commission also stated that the conclusions of the investigation of the allegations brought forward by RATS were to be re-examined in the light of the new documents that RATS had submitted. The Commission concluded that it did not consider a disclosure of the requested documents, which related to the ongoing investigation of case 2002/4402, to constitute an overriding public interest in relation to the completion of the assessment of the case and maintaining the dialogue between the national authorities and the Commission.

By letter of 25 March 2004, RATS made a confirmatory application to the Commission, challenging its decision not to provide access to the requested documents. RATS considered it to be unreasonable that the residents would not be allowed to check the veracity of the evidence provided by the UK authorities, on the basis of which the Commission had decided to close the case. However, despite reminders sent on 25 March, 20 May and 17 June 2004, RATS received no reply from the Commission to its confirmatory application.

The complainant alleges that the Commission:

1. Wrongly and unreasonably refused access to the requested documents; and

2. Failed to reply to RATS' confirmatory application.

The complainant claims that the Commission should grant access to the documents in question.

Following the opening of an inquiry into the complaint, the Ombudsman also wrote to the United Kingdom Permanent Representation to the European Union asking for information as to whether the United Kingdom authorities would object to the release of the documents to which the complainant had requested access.

THE INQUIRY

The Commission's opinion

During its investigation of the Article 226 complaint, which concerned a landfill site in the UK, the Commission contacted the UK authorities to seek clarifications on a number of allegations made by the complainant. The Commission wrote to the UK authorities on 14 October 2002 and received a reply on 12 December 2002. Following an assessment of this reply, the Commission again wrote to the UK authorities on 19 August 2003 to seek further clarifications. The UK authorities replied on 17 October 2003. The evidence provided by the complainant and the information provided by the UK authorities were assessed and the conclusions were communicated to the complainant by letter of 9 February 2004, concluding that no breach of Community environmental legislation had been identified. The Commission therefore proposed to close the file, unless the complainant submitted further evidence to support the case.

By letter of 21 February 2004, the complainant protested against the proposed closure of the file and presented additional evidence. In this letter, the complainant also requested copies of the Commission's requests to the UK authorities and of their subsequent replies and submitted evidence. The Commission replied that these documents were covered by the exception to access laid down in Article 4(2), third indent, of Regulation 1049/2001, since their disclosure would adversely affect the ongoing investigation regarding a possible infringement of Community law. The Commission points out that, at the time of the request for access, the complaint file had not yet been closed and was still being investigated.

The complainant reacted by letter of 2 March 2004, asking the Commission to reconsider the request for access to documents. Although the letter was sent to the Secretary-General, it was forwarded to DG Environment, which is responsible for the handling of environmental complaints. Unfortunately, the letter was not copied to the services in the Secretariat-General that are responsible for the handling of confirmatory applications for access to documents. By letter of 8 July 2004 to DG Environment, the complainant complained that the Secretariat-General had failed to reply to her confirmatory application, despite her reminders. The complainant's letter was forwarded to the responsible services within the Secretariat-General, which apologised for the administrative mistake and promised to handle the confirmatory application as quickly as possible.

The Secretariat-General replied to the complainant's confirmatory application on 20 August 2004, confirming the refusal to disclose the requested documents.

In the meantime, DG Environment investigated the additional information provided by the complainant from February 2004 onwards. A meeting was also held with the complainant's MEP regarding the matter. On 24 June 2004, the Commission wrote to the complainant indicating that the additional evidence that she had provided did not change the Commission's conclusion outlined in its letter of 9 February 2004. Further evidence was forwarded to the Commission by the complainant's MEP on 25 August 2004. This was again assessed, but did not change the Commission's opinion that there was insufficient evidence of a breach of Community environmental law. The complaint file was therefore formally proposed for closure and was subsequently closed on 13 October 2004. The complainant was informed of this decision by letter of 15 December 2004.

As regards the refusal to provide access to the requested documents, the Commission argues that its decision not to disclose the documents at that stage of the proceedings is consistent with relevant case law(3). However, since the file has now been formally closed, the Commission has decided to release its letters of 14 October 2002 and of 19 August 2003 addressed to the UK Permanent Representation to the European Union. Pursuant to Article 4(5) of Regulation 1049/2001, the Commission has consulted the UK authorities as regards possible disclosure of their replies. Since the UK authorities have confirmed that they do not object to disclosure, the two letters in question are also disclosed. The Commission therefore encloses with its opinion copies of its correspondence with the UK authorities.

As regards the Commission's alleged failure to reply to the confirmatory application, the Commission regrets the administrative mistake and that the handling of the complainant's confirmatory application was unduly delayed.

The request to the United Kingdom Permanent Representation

The Ombudsman received no direct reply from the UK Permanent Representation to his request. However, the necessary information appears to have been given directly to the Commission by the Representation.

The complainant's observations

In her observations, the complainant makes, in summary, the following comments:

RATS is grateful for the copies of the correspondence between the Commission and the UK authorities.

However, RATS has consistently asked for access also to the information submitted by the UK authorities to support its arguments. In the letter from the UK Permanent Representation to the Commission of 17 October 2003, this information is referred to as being in electronic form on three CD-ROMs. The complainant would like to obtain copies also of this information.

Further inquiries

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

The Ombudsman noted the complainant's argument, put forward in her observations, that RATS had consistently asked for access not only to the letters exchanged between the Commission and the UK authorities, but also to the information submitted by the UK authorities to support its arguments. In the complainant's view, this information is in the form of three CD-ROMs, to which she would like access.

The Ombudsman further noted that the complainant's original request for access to documents covered "a copy of [the Commission's] requests and the correspondence and evidence from the UK government". [The Ombudsman's underlining.]

On the basis of the above, and of the arguments provided by the Commission as to why it is now possible to disclose the correspondence between it and the UK authorities, the Ombudsman asked the Commission to consider providing the complainant with access also to the three CD-ROMs referred to by the UK Permanent Representation in its letter of 17 October 2003.

The Commission's reply

In reply to the further inquiries, the Commission informed the Ombudsman that it had decided to provide the complainant with the three CD-ROMs in question.

The complainant's observations

In a telephone conversation with the Ombudsman's services on 24 August 2005, the complainant acknowledged receipt of the remaining documents covered by the request for access, i.e., the three CD-ROMs. She therefore considered the matter to be settled.

THE DECISION

1 The alleged wrongful refusal of access to documents, the alleged failure to reply to the confirmatory application, and related claim

1.1 The complaint concerns the Commission's handling of a request for access to documents made under Regulation 1049/2001(4). In 2002, RATS (Residents Against Toxic Site) made an Article 226 complaint(5) to the Commission (complaint 2002/4402) concerning the UK authorities' alleged failure to follow Community legislation as regards a large landfill site near the residents' homes. In February 2004, the Commission informed RATS of its intention to close the case. Since RATS assumed that the Commission had forwarded the allegations and evidence to the UK authorities and received replies, RATS requested access to the Commission's correspondence with the UK authorities. However, the Commission refused access to the documents concerned on the basis of the exception in Article 4.2 in Regulation 1049/2001, arguing that a disclosure of the documents would undermine the protection of the purpose of inspections, investigations and audits. The Commission did not consider a disclosure of the requested documents, which related to the ongoing investigation of case 2002/4402, to constitute an overriding public interest in relation to the completion of the assessment of the case and maintaining the dialogue between the national authorities and the Commission. RATS made a confirmatory application to the Commission to which it never received a reply. The complainant alleges that the Commission: 1) wrongly and unreasonably refused access to the requested documents; and 2) failed to reply to RATS' confirmatory application. The complainant claims that the Commission should grant access to the documents in question.

1.2 The Commission argues that its decision not to disclose the documents at that stage of the proceedings is consistent with relevant case law(6). However, since the file has now been formally closed, the Commission has decided to release its letters of 14 October 2002 and of 19 August 2003 addressed to the UK Permanent Representation to the European Union. Since the UK authorities have confirmed that they do not object to disclosure of its replies, the two letters in question are also disclosed. The Commission regrets the administrative mistake leading to undue delay in the handling of the complainant's confirmatory application.

1.3 In her observations on the Commission's opinion, the complainant states that RATS is grateful for the copies of the correspondence between the Commission and the UK authorities. She stresses, however, that RATS has consistently asked for access also to the information submitted by the UK authorities to support its arguments. In the letter from the UK Permanent Representation to the Commission of 17 October 2003, this information is referred to as being in electronic form on three CD-ROMs. The complainant explains that she would like to obtain copies also of this information.

1.4 The Ombudsman considered that further inquiries were necessary into the matter and therefore asked the Commission to consider providing the complainant with access also to the three CD-ROMs referred to by the UK Permanent Representation in its letter of 17 October 2003.

1.5 In its reply to the further inquiries, the Commission informed the Ombudsman that the complainant had been provided with the three CD-ROMs in question. In a telephone conversation with the Ombudsman's services on 24 August 2005, the complainant acknowledged receipt of the three CD-ROMs and explained that she considered the matter to be settled.

1.6 In view of the above, the Ombudsman considers that the Commission appears to have taken adequate steps to settle the matter and has thereby satisfied the complainant.

2 Conclusion

It appears from the Commission's comments and the complainant's observations that the Commission has taken steps to settle the matter and has thereby satisfied the complainant. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Article 226 of the EC Treaty empowers the Commission to proceed against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law.

(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, p. 43.

(3) Case T-191/99, David Petrie and others v. Commission [2001] ECR II-3677.

(4) 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, p. 43.

(5) Article 226 of the EC Treaty empowers the Commission to proceed against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law.

(6) Case T-191/99, David Petrie and others v. Commission [2001] ECR II-3677.