Executive Director European Border and Coast Guard Agency

 

 

Dear Dr X,

During my recent visit to Warsaw, I very much welcomed the constructive dialogue with you and your team concerning a number of issues my Office has identified in recent inquiries. I noted your willingness to take account of my Office’s experience in areas such as transparency in order to help you improve the internal practices and procedures within Frontex. I also welcomed your commitment to promoting an enhanced transparency culture for the agency.

In this context, I am writing to you again about an own-initiative inquiry that I mentioned during my visit. The initial response to my recommendation in this case was regrettably not positive. However, in view of our constructive exchanges in Warsaw, I would like to provide you with an opportunity to consider again your response to that recommendation.

The recommendation concerns an essential aspect of the EU legislation on public access to documents (Regulation 1049/2001), namely the timely handling of access requests. Beyond the legal and procedural points it contains, the recommendation also raises a general issue concerning respect by EU agencies and other bodies for good administrative practices that have evolved over many years, and for which the public and policy-makers alike are entitled to expect a reasonably consistent approach.

Whilst I fully appreciate that EU agencies work with a degree of independence in carrying out their core tasks, I do not believe it is helpful that they re-interpret general administrative principles and rules that are established in line with the case law of the EU Courts. I am of the view that had Frontex applied these long-established practices and rules it could have avoided the instances of maladministration identified in this inquiry.

In light of the above, I invite you to consider further the recommendation enclosed, which incorporates a suggestion for improvement to respect and implement the consolidated practices of the three institutions to whom Regulation 1049/2001 was originally addressed. I also enclose an annex with a summary of the key points.

I would be obliged to hear from you by 30 November 2023 and thank you in advance for your good collaboration.

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 07/11/2023

 

ANNEX

Delayed registration, meaning failure to activate the statutory time-limit

The EU legislation on public access to documents lays down an initial time-limit for replying to a request. The time-limit begins from the moment a request has been registered.

Regulation 1049/2001 does not state that registration shall take place within a set number of hours or days. It would be unusual for EU legislation to stipulate precisely an initial registration time-limit.

The sound approach is therefore to have regard to good administrative practices. It is a good administrative practice to register a communication (letter, email, content of a web-form etc.) rapidly if the content of that communication is clear. Requests for access to documents are usually contained in one single communication, and tend not to be long. It is therefore reasonable to expect that it will not take a modern public administration more than 1-2 working days to know if an access request is sufficiently clear and can be processed. After 1-2 working days, a sufficiently clear request should therefore be registered and the time-limit start running.

Frontex has so far taken the view that this is not so. It considers that it is free to postpone the registration - and hence the activation of the time-limit - if it finds that the request is complex or concerns many documents. In that case, Frontex wants to be able to communicate with the requester (whether s/he is in agreement or not) to limit the request to something that it sees as more manageable. This practice is not only incompatible with good administration, it also impacts on the legal time-limit and right to judicial review contained in the public access regulation.

Suspension of statutory time-limits

The EU legislation on public access to documents specifies two main time-limits. The first is for the initial processing of a request. The second is for the processing of a possible request for review.

Regulation 1049/2001 recognises that the processing of an access request can take more time. It therefore states that the institution in question can exceptionally extend the time-limit once, by a fixed number of working days. The regulation accordingly provides for situations where the institution needs more time to process the request.

There is a direct link between the good management of these time-limits and the requester’s ability to ask for external review. EU institutions cannot amend that unilaterally.

Frontex has taken the view that it can suspend a time-limit when, during the processing of the request, it realises that a request that it registered is unclear for it. The regulation does not provide for such a possibility. It would have done so had such an option been intended. To suspend a statutory time-limit is a serious matter. The Ombudsman’s recommendation in this case pointed to a pragmatic best practice for how to deal with the matter. It is to allow for a correction of the situation where a request was registered, even though it was not sufficiently precise. If a correction can be done, within a maximum of 2-3 working days, that would be good administration.