Strasbourg, 14 December 2007

Dear Mr A.,

On 3 February 2006, you submitted a complaint to the European Ombudsman against the Office for Harmonisation in the Internal Market (the "Office"), concerning its failure to grant access to a document and properly to deal with a request for payment.

On 15 March 2006, I opened an inquiry into this complaint and forwarded it to the President of the Office. The Office sent its opinion on 8 June 2006. I forwarded it to you with an invitation to make observations, which you sent on 18 July 2006. By letter dated 23 January 2007, you sent me further information in relation to your complaint.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the delay in the handling of your case.

THE COMPLAINT AND ITS BACKGROUND

The essential elements of the present complaint may be summarised as follows. The complainant is a lawyer before the Brussels Bar. He represented Mr M. in a case (Case T) before the Court of First Instance ("CFI"), which concerned an action for damages against the Office for Harmonisation in the Internal Market (the Office). The action was sustained in part, and the Office was ordered to pay one fifth of the costs incurred by Mr M. for the purpose of the legal proceedings(1). Following this judgment, rendered on 28 October 2004, the complainant, in his capacity as Mr M.'s lawyer, asked the Office, by letter dated 5 November 2004, to pay him the amount of EUR 2 727.08, which corresponded to one fifth of his fees and expenses (in total EUR 13 635.43) for this case. The complainant stated that this course of action is normal, and when the lawyer is paid the relevant amount, he reimburses his client, but keeps the amount which his client may owe him. Mr M. owed the complainant EUR 4 635.42, and he had been informed of that by a letter dated 16 July 2004. On 7 December 2004, the complainant received from the Office a letter stating that Mr M. had made known to the Office that there was no agreement between him and the complainant concerning the definitive amount of the complainant's fees in the case in question. Consequently, the Office was unable to pay the complainant the requested amount of money until Mr M. had concurred in the final sum of the complainant's fees. The complainant inferred from this reply that his letter of 5 November 2004 had been communicated by the Office to Mr M., although Mr M. was not its recipient.

On 28 December 2004, the complainant addressed a letter to Mr M., reminding him of his debt. On the same date, the complainant wrote again to the Office. In this letter, he repeated the request made in his letter of 5 November 2004, pointing out that it was within his functions as a lawyer to ensure enforcement of the CFI's judgment and, consequently, according to current practice, to request the reimbursement of the costs which the Office had to pay pursuant to that judgment. In the same letter, the complaint added that this function was independent of the question of whether there was an agreement or disagreement between the parties with regard to the amount of fees and expenses.

By letter dated 30 August 2005, the Office informed the complainant that it had paid directly to Mr M. the amount of money the latter had specified as corresponding to 20 percent of the costs incurred by him for the purpose of the legal proceedings. The Office emphasised that, since Mr M. was the one who had the right to be reimbursed for the costs incurred by him in his capacity as an applicant in proceedings before the CFI, the Office had decided to pay him the amount of money he had asked for as reimbursement of 20 percent of the costs. The Office thus considered that, on the one hand, it had complied with its obligations under the CFI's judgment concerning the reimbursement of costs and, on the other hand, that the dispute between Mr M. and the complainant regarding the provision of legal services did not fall within the scope of the Office's mandate.

By letter dated 14 September 2005, the complainant asked Mr M. to pay the sum of EUR 4 635.42 he owed him. However, the letter was returned to the complainant. By letter dated 27 September 2005, addressed to the Office, the complainant stated that the Office could not rely on the disagreement that might exist between him and Mr M. to refuse to pay the costs. The complainant considered that the Office had in fact deliberately favoured Mr M. in the context of his dispute with the complainant, in violation of the rules applicable to the payment of costs. By letter of 10 October 2005, the President of the Office confirmed in essence the statements made in the above-mentioned letter of 30 August 2005. By letter of 26 October 2005, addressed to the President of the Office, the complainant stressed that the Office had obviously been informed by Mr M. that there was a dispute between him and the complainant with respect to the payment of the fees, that the Office had resolved this dispute in favor of Mr M. without having consulted the complainant, and that, in principle, the costs cover lawyers' fees and must normally be paid to the lawyers. Moreover, the complainant asked for (i) a copy of Mr M.'s request for reimbursement and (ii) clarifications as to the date on which the Office had paid the costs to Mr M.

By letter of 22 November 2005, the President of the Office refused to grant the complainant's access to Mr M.'s request for reimbursement. In this regard, the President stated that, according to the Community legislation on access to documents, the request concerned a third-party document, which could not be communicated to the complainant without an ad hoc authorisation by the author of the document. By letter dated 2 December 2005, the complainant filed an appeal, arguing that (a) Mr M. could not be considered as a third party, since he was an official of the Office, and had been represented by him before the CFI; and (b) the exceptions laid down in Article 4 of 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(2) ("Regulation 1049/2001") should be strictly interpreted. In his application, the complainant also asked the Office to specify the legal basis of its position that Mr M. was a third party.

By letter dated 12 January 2006, the President of the Office rejected the appeal, noting the following. His refusal to grant access to the requested document was based on Regulation 1049/2001 and on 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(3) ("Regulation 45/2001"), read together. Mr M. was a third party vis-à-vis the Office, because the requested document concerned neither the exercise of Mr M.'s functions nor the activities of the Office, for which he was working. The document contained personal data, within the meaning of Regulation 45/2001, and, therefore, the Office would be obliged to consult Mr M. before disclosing them. The President, thus, confirmed that, in accordance with Article 4 of Regulation 1049/2001, the requested document constituted a third-party document which could not be communicated to the complainant without the consent of its author, that is, Mr M., since it was likely to contain personal data and its disclosure might be considered to constitute an interference with Mr M.'s private life.

In his complaint to the Ombudsman, the complainant made the following allegations and claims:

(1) The Office (deliberately) failed to deal properly with his request for payment.

(2) The Office wrongly refused to provide him with access to Mr M.'s request for reimbursement.

(3) The complainant should be granted access to Mr M.'s request for reimbursement.

(4) The Office should pay him, without delay, the amount of EUR 2 727,08, which corresponds to 20 percent of the costs that the Office had to pay under the CFI's judgment in Case T.

(5) The Office should pay him interest for late payment of the above-mentioned amount (8 percent per year, calculated as from 7 November 2004).

(6) The complainant should be compensated (in the sum of EUR 15 000) for the non-material damage he has sustained because of the Office's faults.

THE INQUIRY

In its opinion on the complaint, the Office, first, expressed certain concerns about the admissibility of the complaint. It went on to reject the complainant's allegations and claims. As regards the allegation about its failure to deal properly with the complainant's request for payment, it repeated, in essence, the arguments presented in the letters dated 30 August 2005 and 10 October 2005 it had sent to the complainant. With respect to the allegation concerning its refusal to provide the complainant with access to Mr M.'s request for reimbursement, the Office noted, in particular, that it was obliged, pursuant to Article 118a of Council Regulation 40/94, in conjunction with Articles 3 and 4 (paragraphs 1, 2, 4) of Regulation 1049/2001, to consult Mr M. on whether disclosure of the relevant document would be detrimental to his private life. In his letter of 26 October 2005, the complainant asked that his access request be treated confidentially. This prevented the Office from requesting Mr M.'s view as to the possibility of disclosure and, in particular, as to whether he considered that one of the exceptions provided for in Article 4(1) or (2) of Regulation 1049/2001 applied. The Office was, thus, unable to accede to the complainant's request.

In his observations, the complainant maintained his allegations. He also rejected the Office's suggestion that the complaint could be inadmissible.

THE DECISION

1 Preliminary remark

1.1 In its opinion on the complaint, the Office expressed certain concerns about the admissibility of the complaint, by referring to Article 195 of the EC Treaty(4) and to Articles 1(3) and 2(7) of the Statute of the European Ombudsman(5). It noted that the complainant's requests related to the execution of a judgment of the Court of First Instance ("CFI") (in Case T), against which an appeal had been filed (Case C). In his observations, the complainant rejected the Office's suggestion that the complaint could be inadmissible. Subsequently, he informed the Ombudsman that the appeal was rejected by the Court of Justice.

1.2 Relatedly, it suffices to note that the Ombudsman's assessment of the merits of the complainant's allegations cannot, in any way, be considered as questioning the soundness of the judgment of the CFI in Case T or the order of the Court of Justice in Case C. The complainant's allegations inquired into by the Ombudsman concern the Office's dealing with the complainant's requests for payment and access to a document. This issue was not examined in the above-mentioned judgments, which concerned an employment dispute between the Office and Mr M.. It follows that the admissibility concerns expressed by the Office, in view of Article 195 of the EC Treaty and Articles 1(3) and 2(7) of the Statute of the European Ombudsman, are not justified.

2 Allegation that the Office (deliberately) failed to deal properly with the complainant's request for payment

2.1 The complainant, a lawyer, represented Mr M. in a case before the CFI. The case concerned an action for damages against the Office. The action was sustained in part, and the Office was ordered to pay 20 percent of the costs incurred by Mr M. for the purpose of the legal proceedings. It appears that, following this judgment, there was a dispute between Mr M. and the complainant with respect to the payment of the latter's fees. After the issuance of this judgment on 28 October 2004, the complainant, in his capacity as Mr M.'s lawyer, asked the Office, by letter dated 5 November 2004, to pay him the amount of EUR 2 727.08, which corresponded to one fifth of his fees and expenses (in total EUR 13 635.43) for this case. On 7 December 2004, the complainant received from the Office a letter stating that Mr M. had made known to the Office that there was no agreement between him and the complainant concerning the definitive amount of the complainant's fees in the case in question. Consequently, the Office was unable to pay the complainant the requested amount of money until Mr M. had concurred in the final sum of the complainant's fees.

On 28 December 2004, the complainant addressed a letter to Mr M., reminding him of his debt. On the same date, the complainant wrote again to the Office. In this letter, he repeated the request made in his letter of 5 November 2004, pointing out that it was within his functions as a lawyer to ensure enforcement of the CFI's judgment and, consequently, according to current practice, to request the reimbursement of the costs which the Office had to pay pursuant to that judgment. In the same letter, the complainant added that this function was independent of the question of whether there was an agreement or disagreement between the parties with regard to the amount of fees and expenses. By letter dated 30 August 2005, the Office informed the complainant that it had paid directly to Mr M. the amount of money the latter had specified as corresponding to 20 percent of the costs incurred by him for the purpose of the legal proceedings. The Office emphasised that, since Mr M. was the one who had the right to be reimbursed for the costs incurred by him in his capacity as an applicant in proceedings before the CFI, the Office had decided to pay him the amount of money he had asked for as reimbursement of 20 percent of the costs. The Office thus considered that, on the one hand, it had complied with its obligations under the CFI's judgment concerning the reimbursement of costs and, on the other hand, that the dispute between Mr M. and the complainant regarding the provision of legal services did not fall within the scope of the Office's mandate.

In his complaint to the Ombudsman, the complainant alleged that the Office had (deliberately) failed to deal properly with his request for payment. He considered that the Office had taken Mr M.'s side in the context of his dispute with Mr M. In its opinion, the Office rejected this allegation, by repeating, in essence, its above arguments. In his observations, the complainant maintained his allegation.

2.2 The Ombudsman, first, notes that, under Article 91(b) of the Rules of Procedure of the CFI (the Rules), "expenses necessarily incurred by the parties for the purpose of the proceedings, in particular travel and subsistence expenses and the remuneration of agents, advisers or lawyers" are to be regarded as recoverable costs. Under Article 92(1) of the Rules, "[i]f there is [a] dispute concerning the costs to be recovered, the Court of First Instance hearing the case shall, on application by the party concerned and after hearing the opposite party, make an order, from which no appeal shall lie." It is settled case-law that:

(a) recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the CFI and, second, to those which were necessary for that purpose;

(b) in the absence of Community provisions laying down fee scales, the Court must make an unfettered assessment of the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of Community law, as well as the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest which the parties had in the proceedings;

(c) the Court is not empowered to determine the fees payable by the parties to their own lawyers but it may determine the amount of those fees which may be recovered from the party ordered to pay the costs;

(d) in ruling on the application for determination of costs, the Court is not obliged to take account of any national scales of lawyers' fees or any agreement in relation to fees concluded between the party concerned and his agents or advisers(6).

2.3 Taking into consideration the above, the Ombudsman notes the following. First, the complainant does not appear to have challenged the propriety of the Office's position that it was Mr M., in his capacity as a party to the legal proceedings in question, and not the complainant (in his capacity as Mr M.'s lawyer), who had the right to be reimbursed by the Office for 20 percent of the expenses incurred by Mr M. for the purpose of the proceedings before the CFI. Articles 86 et seq. of the Rules, which concern the payment of costs, do not seem to create a right to payment in favour of the lawyers of the parties entitled to recover court costs. Moreover, pursuant to the above-mentioned rules, as interpreted by the CFI, the costs that the Office had to pay were the "expenses necessarily incurred by [Mr M.] for the purpose of the proceedings" (emphasis added) which might, but did not necessarily, coincide with the amount of money the complainant charged Mr M. for the provision of services in the context of the court proceedings or with the amount of money provided for in an agreement concluded between the complainant and Mr M. It follows from the same rules that, since the Office reached an agreement with Mr M. as to the amount of money to be paid as court costs to Mr M., and made the relevant payment to Mr M., the Office should be deemed to have complied with the CFI's judgment (in Case T) with respect to the payment of costs. In this regard, it must also be pointed out that the Office does not appear to have been notified of a Court decision, or other binding act, obliging it to abstain from making this payment to Mr M., with a view to securing payments that Mr M. might have to make to the complainant.

2.4 In view of the above, the Office does not appear to have taken Mr M.'s side in the context of the dispute between the complainant and Mr M. Rather, it appears that the Office merely complied with its obligations under the CFI's judgment as regards the payment of costs. The fact that the Office and Mr M. reached an agreement as to the "expenses necessarily incurred by [Mr M.] for the purpose of the proceedings" does not mean, as the complainant argues, that the Office took a position on whether Mr M. owed the complainant EUR 4 635.42. Furthermore, the Office replied (on 7 December 2004) to the complainant's request for payment (letter dated 5 November 2004), explaining that it could not pay the amount of money requested by the complainant, since Mr M. had made known to the Office that there was no agreement between him and the complainant concerning the final amount of the complainant's fees. By so doing, the Office appears to have acted reasonably. The Office also reasonably considered that no such agreement was necessary for the determination of the "expenses necessarily incurred by [Mr M.] for the purpose of the proceedings", and for discharging its relevant obligation to pay court costs, under the CFI's judgment. Indeed, as observed above, these expenses might, but would not necessarily, coincide with the amount of money provided for in such an agreement.

2.5 Under these circumstances, the Ombudsman concludes that the complainant's allegation has not been substantiated. Hence, the Ombudsman finds no instance of maladministration corresponding to this allegation.

3 Allegation that the Office wrongly refused to give the complainant access to Mr M.'s request for reimbursement

3.1 The complainant, a lawyer, represented Mr M. in a case before the CFI. The case concerned an action for damages against the Office. The action was sustained in part, and the Office was ordered to pay one fifth of the costs incurred by Mr M. for the purpose of the legal proceedings. It appears that, following this judgment, there was a dispute between Mr M. and the complainant with respect to the payment of the latter's fees. By letter dated 30 August 2005, the Office informed the complainant that it had paid directly to Mr M. the amount of money Mr M. had specified as corresponding to 20 percent of the costs incurred by him for the purpose of the above legal proceedings. By letter of 26 October 2005, addressed to the President of the Office, the complainant asked for a copy of Mr M.'s request for reimbursement.

3.2 By letter of 22 November 2005, the President of the Office refused to grant the complainant's above request, on the ground that, pursuant to the applicable Community legislation, it concerned a third-party document, which could not be communicated to the complainant without an ad hoc authorisation of the author of the document. By letter dated 2 December 2005, the complainant filed an appeal (confirmatory application), arguing that (a) Mr M. could not be considered as a third party, since he was an official of the Office, and had been represented by him before the CFI; (b) the exceptions laid down in Article 4 of 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(7) (" Regulation 1049/2001") should be strictly interpreted. In his application, the complainant also asked the Office to specify the legal basis of its position that Mr M. was a third party.

By letter dated 12 January 2006, the President of the Office rejected the confirmatory application, noting the following. His refusal to grant access to the requested document was based on Regulation 1049/2001 and on 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(8) ("Regulation 45/2001"), read together. Mr M. was a third party vis-à-vis the Office, because the requested document concerned neither the exercise of Mr M.'s functions nor the activities of the Office, for which he was working. The document contained personal data, within the meaning of Regulation 45/2001, and, therefore, the Office would be obliged to consult Mr M. before disclosing them. The President, thus, confirmed that, in accordance with Article 4 of Regulation 1049/2001, the requested document constituted a third-party document which could not be communicated to the complainant without the consent of its author, that is, Mr M., since it was likely to contain personal data and its disclosure might be considered to constitute an interference with Mr M.'s private life.

3.3 In his complaint to the Ombudsman, the complainant alleged that the Office wrongly refused to give him access to Mr M.'s request for reimbursement. In support of this allegation, he argued that (a) Mr M. was not a third party in relation to the Office, since he was an official of the Office and he made the request for reimbursement following a court judgment resolving the dispute he had with the Office; (b) the document in question was not, in any way, relevant to Mr M.'s private life and did not contain any personal data, since it was simply a request for payment.

3.4 In its opinion on the present complaint, the Office added, in support of its rejection of the complainant's access application, that it was obliged, pursuant to Article 118a of Council Regulation 40/94 of 20 December 1993 on the Community trade mark(9) ("Regulation 40/94"), in conjunction with Articles 3 and 4 (paragraphs 1, 2, 4) of Regulation 1049/2001, to consult Mr M. on whether disclosure of the relevant document would be detrimental to his private life, particularly to his commercial interests pursuant to Regulation 45/2001. Indeed, it was clear that the complainant wished to have access to this third-party document in the context of a private commercial dispute between the complainant and Mr M. In his letter of 26 October 2005, the complainant asked that his access request be treated confidentially. This prevented the Office from requesting Mr M.'s view as to the possibility of disclosure and, in particular, as to whether he considered that one of the exceptions provided for in Article 4(1) or (2) of Regulation 1049/2001 applied. The Office was, thus, unable to accede to the complainant's request. Furthermore, the complainant asked the Ombudsman to treat his case confidentially.

In his observations, the complainant maintained his allegation.

3.5 Pursuant to Article 118a of Regulation 40/94, Regulation 1049/2001 applies to documents held by the Office.

Article 3 of Regulation 1049/2001 provides that, for the purposes of this Regulation, "'third party' shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and third countries."

According to Article 4(1) of Regulation 1049/2001, "[t]he institutions shall refuse access to a document where disclosure would undermine the protection of: (...) (b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data."

Under Article 4(2) of the same Regulation, "[t]he institutions shall refuse access to a document where disclosure would undermine the protection of: - commercial interests of a natural or legal person (...) unless there is an overriding public interest in disclosure."

Article 4(4) of this Regulation provides that "[a]s regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph[s] 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed."

Article 2 of Regulation 45/2001 provides that, for the purposes of this Regulation, "'personal data' shall mean any information relating to an identified or identifiable natural person (...) ; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity."

3.6 Moreover, the CFI, in its judgment in case T-194/04(10), held, inter alia, the following: (a) access to documents containing personal data falls within the application of Regulation 1049/2001(11); (b) the exception laid down by Article 4(1)(b) of that regulation concerns only disclosure of personal data which would undermine the protection of the privacy and integrity of the individual(12); (c) the fact that the concept of 'private life' is a broad one, in accordance with the case-law of the European Court of Human Rights, and that the right to the protection of personal data may constitute one of the aspects of the right to respect for private life, does not mean that all personal data necessarily fall within the concept of 'private life'(13); (d) a fortiori, not every disclosure of personal data is capable of undermining the private life of the person concerned(14); (e) the mere fact that a document contains personal data does not necessarily mean that the privacy or integrity of the persons concerned is affected(15).

3.7 In the present case, the Office rejected the complainant's confirmatory application in essence on the basis of the following reasoning, which it provided in its opinion on the complaint: (i) the document in question, that is, Mr M.'s request for reimbursement of costs, was a third-party document; (ii) the document contained personal data, within the meaning of Regulation 45/2001, and the exception of Article 4(1)(b) of Regulation 1049/2001 could be applicable; (iii) therefore, the Office would be obliged to consult Mr M. and obtain his consent to the disclosure; (iv) the Office could not proceed to this consultation, because the complainant had designated his access request as confidential.

3.8 As regards element (i), the Ombudsman accepts the Office's position that the document in question was a third-party document, within the meaning of Articles 3 and 4(4) of Regulation 1049/2001. This document was authored by Mr M. not in the context of the performance of his duties as an official of the Office, but rather in his capacity as a private individual and a party to proceedings before the CFI. Consequently, under Article 4(4) of this Regulation, the Office should consult Mr M. with a view to assessing whether an exception of Article 4(1) or (2) was applicable, unless it was clear that the requested document should or should not be disclosed.

3.9 As regards element (ii), the complainant has argued that the document could not contain any personal data, since it was simply a request for payment. This argument cannot be accepted. The document apparently referred to a specific amount of money which was requested - and subsequently received(16) - by Mr M. as corresponding to 20 percent of the costs incurred by him for the purpose of the legal proceedings before the CFI(17). This information amounts to "personal data," within the meaning of Article 2 of Regulation 45/2001.

The complainant has also argued that the document in question was not, in any way, relevant to Mr M.'s private life. This argument cannot be accepted either. The communication to the complainant of the above personal data, concerning the determination and payment to Mr M. of the court costs he was entitled to recover, in his capacity as a private individual and a party to proceedings before the CFI, could reasonably be viewed as an interference with Mr M.'s right to respect for his private life(18).

3.10 As regards element (iii), it must, first, be noted that, contrary to what the Office stated in its reply to the confirmatory application, the requested document could be communicated to the complainant even without the consent of Mr M. In this regard, Article 4(4) requires only a consultation, not an authorisation, of the third party.

Second, such a consultation takes place unless it is clear that the document will or will not be disclosed. This implies that a consultation is necessary if it is not clear that none of the exceptions is applicable or that at least one of the exceptions should be applied. Relatedly, the Ombudsman recalls his remarks in point 3.9 above and the fact that, according to Regulation 45/2001, the requested disclosure of personal data would be lawful if Mr M. unambiguously gave his consent. Taking the above into account, the Ombudsman finds that it was not unreasonable for the Office to consider that it was not clear whether the exception of Article 4(1)(b) of Regulation 1049/2001 should or should not have been applied.

3.11 With respect to element (iv), the confidential character of the complainant's access request has not been contested by him and is confirmed by the documentation submitted to the Ombudsman(19). Moreover, the Office's relevant argument, that the confidentiality of the complainant's access request prevented it from requesting Mr M.'s view on the possibility of disclosure, has not been challenged by the complainant and is reasonable.

3.12 On the basis of the above, the Ombudsman concludes that the complainant's allegation has not been substantiated. Hence, the Ombudsman finds no instance of maladministration corresponding to this allegation.

4 Claims

4.1 In view of his conclusions in points 2.5 and 3.12 of the present decision, the Ombudsman takes the view that the complainant's claims cannot be sustained.

5 Conclusion

On the basis of his inquiry into this complaint, the Ombudsman has found no instance of maladministration corresponding to the complainant's allegations. Therefore, he closes the case.

The President of the Office for Harmonisation in the Internal Market will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The CFI's judgment did not determine the actual amount of the costs to be recovered.

(2) OJ 2001 L 145, p.43.

(3) OJ 2001 L 8, p. 1.

(4) Article 195 of the EC Treaty provides, inter alia, that "(...) the Ombudsman shall conduct inquiries for which he finds grounds (...) except where the alleged facts are or have been the subject of legal proceedings."

(5) Article 1(3) of the Statute provides that "[t]he Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling."

Pursuant to Article 2(7) of the Statute, "[w]hen the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed definitively."

(6) See, for example, Case 178/98 DEP Fresh Marine v Commission [2004] ECR II-3127, paragraphs 26-28, 33 and 41.

(7) OJ 2001 L 145, p.43.

(8) OJ 2001 L 8, p. 1.

(9) OJ 1994 L 11, p. 1. Article 118a (Access to documents) was added by Article 1 of Council Regulation (EC) No 1653/2003 of 18 June 2003 amending Regulation (EC) No 40/94 on the Community trade mark (OJ 2003 L 245, p. 36).

(10) Case T-194/04 Bavaria Lager v. Commission, judgment of 8 November 2007 (not yet published in the ECR).

(11) See paragraph 107 of Case T-194/04 Bavaria Lager v. Commission, cited above.

(12) See paragraph 128 of Case T-194/04 Bavaria Lager v. Commission, cited above.

(13) See paragraph 118 of Case T-194/04 Bavaria Lager v. Commission, cited above.

(14) Cf. paragraph 119 of Case T-194/04 Bavaria Lager v. Commission, cited above.

(15) See paragraph 123 of Case T-194/04 Bavaria Lager v. Commission, cited above.

(16) Relatedly, it is recalled that the Office had informed the complainant, before his access request, that it had paid to Mr M. the sum he had requested.

(17) The Office has not clarified whether the document in question also contained data relating to the particulars of the costs.

(18) Cf. Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others [2003] ECR I-4989, paragraph 74.

(19) The complainant's letter of 26 October 2005, in which he formulated his request for access to the document, bears the note "Confidentielle et personnelle." A copy of this letter was attached to the complaint.