Strasbourg, 19 December 2005

Dear Mr X.,

On 31 January 2005, you made a complaint to the European Ombudsman against the European Commission in relation to its decision of 19 January 2005 to reject an internal complaint you had made in July 2004. By e-mail of 9 February 2005, my Office invited you to submit copies of the documents to which you referred in your complaint. On 10 February 2005, you telephoned my Office in relation to this request. On this occasion, you clarified that your complaint was not directed at the decision of 19 January 2005, but at the Commission's refusal to grant you access to comments made by the Commission's Legal Service regarding your internal complaint. On 21 February 2005, I received the copies that I had asked you to provide.

On 28 February 2005, I informed you that I considered that there were insufficient grounds for an inquiry into your allegation and the main claim but that I had forwarded the complaint to the President of the European Commission for an opinion (to be submitted by 31 May 2005) as regards your subsidiary claim.

On 7 March 2005, you requested me to consider shortening the period of time granted to the Commission for its opinion, given that a possible appeal against the Commission's decision of 19 January 2005 had to be filed with the Court of First Instance within a period of three months. You also invited me to reconsider my position as regards your allegation and main claim.

In my reply of 16 March 2005, I informed you that, in view of the contents of your letter, I had asked the Commission to submit its opinion as quickly as possible and preferably before 15 April 2005. I also explained that I continued to believe that no inquiry was justified as regards your allegation and main claim.

The Commission was informed accordingly on the same day.

On 23 March 2005, you sent me further comments in relation to your case. This e-mail did not reach my Office. On discovering this, you re-sent me this e-mail on 4 May 2005.

In this e-mail, you reiterated your request that I should reconsider your main allegation and claim.

After a thorough examination of this request, I arrived at the conclusion that it would be appropriate to extend the scope of my inquiry so as to cover your allegation and main claim. On 10 May 2005, I therefore wrote to the Commission, inviting it to deal with this allegation and this claim in its opinion or (if the Commission's opinion had already been dispatched) in a supplementary opinion. You were informed accordingly on the same day.

The Commission sent its opinion, dated 3 May 2005, on 10 May 2005. I forwarded a copy of this opinion to you on 18 May 2005 and informed you that you would be invited to make observations after I had received and forwarded to you the Commission's supplementary opinion.

On 7 June 2005, you submitted observations on the Commission's opinion.

On 5 July 2005, the Commission sent me its supplementary opinion. On 6 July 2005, I forwarded a copy of it to you with an invitation to make observations on the Commission’s supplementary opinion and further observations on its opinion.

On 9 August 2005, you sent me observations on the Commission's opinions.

On 29 August 2005, I asked the Commission for access to its file and for further information in relation to your complaint. You were informed accordingly on the same day.

On 22 September 2005, my services inspected the Commission's file, in particular the two replies given by the Commission's Legal Service, on 22 December 2004 and 10 January 2005, to requests for consultation.

On 21 October 2005, the Commission replied to my request for further information.

Copies of the report on the inspection of the file and of the Commission's reply to my request for further information were forwarded to you on 24 October 2005 with an invitation to make observations, which you sent on 10 November 2005.

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

THE COMPLAINT

On 12 July 2004, the complainant, an official of the European Commission, lodged an internal appeal on the basis of Article 90 (2) of the Staff Regulations of officials of officials of the European Communities ("Staff Regulations") against his Career Development Report ("CDR") for the period from 1 January until 30 November 2003. On 6 January 2005, the complainant made further submissions to the Commission concerning his complaint.

According to the complainant, he was informed by Directorate-General Personnel and Administration of the European Commission ("DG ADMIN") that the Commission's Legal Service had been consulted as regards his complaint, including his further submissions of 6 January 2005.

On 19 January 2005, DG ADMIN rejected this appeal.

On 24 January 2005, the complainant sent an e-mail to the official in charge of the matter at DG ADMIN in which he noted that it did not appear from the decision of 19 January 2005 that any consultation of the Legal Service had taken place. The complainant asked whether his note of 6 January 2005 had been forwarded to the Legal Service. He also pointed out that he expected to receive a copy of the written opinion of the Legal Service.

In his reply of 24 January 2005, the official in charge at DG ADMIN confirmed that the Legal Service had been consulted. He added that no access could be given to the opinion of the Legal Service. On 25 January 2005, the same official replied to a further query from the complainant by saying that no access to the comments of the Legal Service could be given since Article 4 (2), second indent and Article 4 (3) of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 on public access to European Parliament, Council and Commission(1) ("Regulation 1049/2001") prevented the Commission from doing so.

In his reply of 25 January 2005, the complainant queried how Article 4 (3) of Regulation 1049/2001 could be applicable in the present case. He added that if the Commission should still feel that it was prevented from granting access to the opinion of the Legal Service, it should at least show him that the latter had been consulted.

In a further e-mail, sent on 26 January 2005, the complainant disputed the view that Article 4 (3) of Regulation 1049/2001 was applicable, referring to the Ombudsman's decision in case 1874/2003/GG. He added that it followed from the Ombudsman's decision that such documents should at least be available to the Ombudsman and that it was good administrative practice to keep an inventory of these documents. The complainant therefore asked the Commission to review its decision to refuse to give him access to the document concerned.

In his reply by e-mail, sent on the same day, the Commission official in charge pointed out that his refusal had not been based on Article 4 (3) of Regulation 1049/2001 alone. He also submitted that even if the Legal Service had not been consulted, the validity of the decision would not be affected.

In his reply of 26 January 2005, the complainant took the view that the relevant document could at least be shown to somebody else (like the Ombudsman) or that an inventory or diary relating to the documents and consultations on the file could be shown to himself.

In his complaint to the Ombudsman lodged at the end of January 2005, the complainant had indicated that he wished to complain about the decision that had been communicated to him on 19 January 2005. However, in a telephone conversation with the Ombudsman's Office on 10 February 2005 the complainant clarified that his allegation was that the Commission had been wrong to refuse to grant him access to the comments made by the Legal Service and that he claimed that he should be given access to these comments. In case he should be legally prevented from having access to these comments, he claimed that he should be given access to evidence, such as a certified inventory, that demonstrated that a consultation of the Legal Service had taken place.

THE INQUIRY

The Ombudsman's approach

In his complaint, the complainant alleged that the Commission had been wrong to refuse to grant him access to the comments made by the Legal Service and claimed that he should be given access to these comments. In case he should be legally prevented from having access to these comments, he claimed that he should be given access to evidence that demonstrated that a consultation of the Legal Service had taken place.

In the light of the judgment of the Court of First Instance in Case T-84/03 Turco v Council(2), the Ombudsman considered that there were insufficient grounds for an inquiry into the allegation and the main claim raised by the complainant. However, as regards the subsidiary claim, according to which the complainant should be given access to evidence that demonstrated that a consultation of the Legal Service had taken place, the Ombudsman considered that it merited examination.

By letter sent on 28 February 2005, the Ombudsman therefore asked the Commission to submit an opinion on this subsidiary claim by 31 May 2005. The complainant was informed accordingly.

Further correspondence
The letter of 7 March 2005

In a further letter, sent on 7 March 2005, the complainant explained that the deadline of three months for bringing an action before the Court of First Instance against the decision rejecting his internal complaint had begun to run on 19 January 2005. He therefore asked the Ombudsman to shorten the period given to the Commission for submitting its opinion, preferably to 15 April 2005.

The complainant also suggested that the Ombudsman should review his position as to his allegation and main claim. He submitted (1) that the Court had held, in the judgment referred to by the Ombudsman, that is, Case T-84/03 Turco v Council, that whilst an institution could refuse access to an opinion of its Legal Service, "it can do so only after analysing each legal opinion individually and establishing the concrete reasons justifying refusal of access" (paragraph 37 of the judgment); (2) that Sweden had argued that the institution must assess the possibility of disclosure in the light of the information which the documents contain and determine whether that disclosure would undermine the protection of legal advice (paragraph 43); (3) that the Council had released the first paragraph of the relevant opinion in the Turco case; and (4) that the relevant judgment concerned a request for access made 'in the public interest' whereas he was in a different position, being a civil servant of the Commission.

The Ombudsman's reply

In his reply of 16 March 2005, the Ombudsman informed the complainant that he had written to the Commission in order to ask it to provide its opinion as quickly as possible and preferably by 15 April 2005.

As regards the first two of the four points on substance made by the complainant, the Ombudsman noted that paragraphs 37 and 43 of Case T-84/03 Turco v Council rendered the opinions of the parties, not that of the Court. The Ombudsman stressed that the considerations that appeared to have been decisive for the Court were those set out at paragraphs 77 to 80 of its judgment on which the complainant had not commented. As to the third point made by the complainant, the Ombudsman explained that the paragraph of the Legal Service's opinion that had been released by the Council in that case merely described the subject of the opinion (cf. paragraph 75 of the judgment). Finally, the Ombudsman pointed out that the fact that the complainant was an official did not appear to be relevant for the handling of a request for access made under Regulation 1049/2001.

The Ombudsman concluded that in these circumstances he continued to believe that no inquiry was justified as regards the complainant's main allegation and claim.

The complainant's further e-mail

In an e-mail dated 23 March 2005 the complainant made further comments. This e-mail did not reach the Ombudsman's Office. On discovering this, the complainant re-sent this e-mail on 4 May 2005.

In his e-mail, the complainant reiterated his request that the Ombudsman should review his decision. The complainant referred to two paragraphs of the Turco judgment: First, in paragraph 69, the Court had held that an institution was "bound to assess in each individual case" whether one of the exceptions set out in Regulation 1049/2001 applied. Secondly, in paragraph 71, the Court had stressed that "the fact that the document in question is a legal opinion cannot, of itself, justify application of the exception relied upon". The complainant submitted that the Court's subsequent reasoning, accepting that the relevant exception (Article 4 (2), second indent of Regulation 1049/2001) applied, was based on the fact that the relevant legal opinion concerned the area of legislation. He also queried why the fact that he was a Commission official should not be relevant for his application.

The Ombudsman's reply

In his reply sent on 10 May 2005, the Ombudsman informed the complainant that, after a thorough examination of the latter's e-mail, he had arrived at the conclusion that it would be appropriate to extend the scope of his inquiry so as to cover the complainant's main allegation and claim. On the same day, the Ombudsman therefore wrote to the Commission, inviting it to deal with this allegation and this claim in its opinion or (if the Commission's opinion had already been dispatched) in a supplementary opinion.

The Commission's opinions

The Commission sent its opinion on 10 May 2005 and its supplementary opinion on 5 July 2005.

In these opinions, the Commission made the following comments.

The opinion of 10 May 2005

By note dated 12 July 2004, registered by unit B.2 (the 'Appeals' Unit) of DG ADMIN on 14 July 2004 under no R/568/04, the complainant had lodged a complaint under Article 90 (2) of the Staff Regulations against his Career Development Report ("CDR") for the period from 1 January to 30 November 2003.

On 14 December 2004, Mr R., the head of unit B.2, had apologised to the complainant for the fact that the four-month deadline for replying to the complaint had been missed and he had informed him that he had taken over the file. In a series of subsequent exchanges, Mr R. had explained to the complainant which aspects of a CDR were subject to review by the Appointing Authority and which were not.

As a consequence, on 6 January 2005, the complainant had submitted a note listing alleged factual inaccuracies in the contested CDR as well as evidence that he was prepared to submit. By e-mail of 10 January 2005, Mr R. had replied that none of the allegations warranted annulment of the contested CDR. In several e-mail messages starting on 24 January 2005, the day he had received the decision rejecting his complaint, the complainant had asked Mr R. for a copy of the opinion that the Legal Service had given in reply to its consultation by unit B.2. Mr R. had refused to grant access on the basis of Regulation 1049/2001.

A 'certified inventory' on complaint no R/568/04 did not exist. However, the Commission confirmed that unit B.2 had consulted the Legal Service on a draft decision in reply to the complaint. This consultation had been carried out by e-mail sent to the functional mailbox 'Consult Interservice SJ' on 14 December 2004. The Legal Service had replied by note dated 22 December 2004.

As to the complainant's note of 6 January 2005, Mr R. had consulted the Legal Service both on the note and on his reading thereof by e-mail of 10 January 2005. The Legal Service had replied by e-mail on the same day.

The supplementary opinion of 5 July 2005

As regards the complainant's main allegation and claim, it should firstly be noted that the complainant had never lodged a confirmatory application under Article 8 of Regulation 1049/2001.

Secondly, the refusal to grant access to the opinion of the Legal Service was justified on the basis of Article 4 (2), second indent of Regulation 1049/2001, since disclosure would undermine the protection of legal advice. The opinion of the Legal Service in the context of a complaint against a CDR was an important instrument enabling the Appointing Authority to ensure that its acts were compatible with Community law. Disclosure of the present opinion could give rise to uncertainty as regards the role of reporting officers and validators within the framework of a CDR and indeed the assessment of their evaluation within the framework of future CDR exercises following such an opinion. Only clear, independent and objective legal advice could play an effective role in influencing the internal decision-making process. Consistent with that, in order to guarantee that these opinions were delivered in complete independence and objectivity, it was essential that their confidentiality was preserved. As the Court of First Instance had held in Case T-84/03 Turco v Council, making particular reference to the contents of legal opinions, to which the complainant now requested access, would deprive the exception relied on of its effect(3).

Thirdly, there was no indication of the existence of an overriding public interest in disclosure. Therefore, and in view of its content and structure, it was not possible to grant access to the said document, whether in whole or in part.

Last but not least, the fact that the complainant was a member of the Commission's staff was not relevant as regards the right of access under Regulation 1049/2001. Disclosure of a document under this Regulation put the document in the public domain. The Regulation did not provide a specific right of access to certain categories of applicants. This interpretation had been confirmed by the Court of First Instance in Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council(4).

The complainant's observations

In his observations, which were sent on 7 June 2005 and on 9 August 2005, the complainant made the following comments.

He would expect and request to receive copies of the Commission's consultation with the Legal Service. In any event, the entire consultation should be made available to the Ombudsman. As to the exchange of e-mails between the Commission and the Legal Service on 10 January 2005, he would like to know the substance of the Legal Service's reply.

The complaint primarily, but not only, concerned access to the second consultation of the Legal Service on 10 January 2005 as regards his note of 6 January 2005. The consultation must have taken place during a very short period of time, and in fact during the afternoon of 10 January 2005, given that unit B.2 had only informed him in its e-mail of 10 January 2005 (sent at 12.49) that his note would be forwarded to the Legal Service. The note of 6 January 2005 had comprised eight examples of manifest errors of fact in the CDR concerned with reference to available evidence. The fact that the Legal Service had replied by e-mail in such haste gave the impression that it had not considered the content of his note seriously. The independence and objectivity of the reply of the Legal Service could thus be questioned, unless access was given.

No evidence of the consultation had been provided by the Commission. According to Article 11 of Regulation 1049/2001, each institution had to provide access to a register of documents.

The Commission had never informed him about the possibility of making a confirmatory application, as required by Article 7 (1) of Regulation 1049/2001. Actually, he had asked the Commission to review its decision to deny access in an e-mail he had sent to it on 26 January 2005.

The reasons given by the Commission for maintaining its refusal to disclose the relevant document were not convincing. If the Legal Service's opinion expressed any views on the role of reporting officers and validators, its disclosure would contribute to increasing clarity as regards the roles of these persons. No explanation had been given as to why the ability of the Commission to seek independent and objective advice from its Legal Service would be jeopardised if he were given access to the opinion in question. The Sison judgment referred to by the Commission, concerned a situation that was different from the present one.

In the light of these considerations, he hoped to be given access to the opinion of the Legal Service of 10 January 2005 on his note of 6 January 2005. Alternatively, and as requested in the complaint, he expected to be given access to documents that demonstrated that a proper consultation had taken place. In the latter case, the opinion should be made available to the Ombudsman for information.

Further inquiries

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

Request for further information and to inspect the Commission's file

On 29 August 2005, the Ombudsman therefore asked the Commission (1) to specify in more detail, and taking into account the complainant's observations, the reasons on the basis of which it considered that Article 4 (2), second indent of Regulation 1049/2001 was applicable in the present case and (2) to allow his services to inspect its file.

The inspection of the Commission's file

On 22 September 2005, the Ombudsman's services inspected the Commission's file, in particular the two replies given by the Commission's Legal Service, on 22 December 2004 and 10 January 2005, to requests for consultation.

The Commission's reply to the request for further information

In its reply to the Ombudsman's request for further information, the Commission made the following comments.

There was no procedural requirement to consult the Legal Service in staff cases. The complainant's primary aim, that is, to find out whether the Commission had consulted the Legal Service at all, was therefore of no relevance to the assessment of the lawfulness of the Appointing Authority's final decision or indeed to uncovering maladministration.

Likewise, the Commission's duly motivated reading of Article 4 (2), second indent of Regulation 1049/2001, subject to the control of the Community courts, could not be an instance of maladministration either. Moreover, the complainant had not lodged a confirmatory application for access pursuant to Article 7 (2) of Regulation 1049/2001. His complaint was therefore inadmissible.

It was respectfully submitted that the complainant aimed at perpetuating very serious allegations, namely that his hierarchical superiors had misrepresented facts in his CDR, instead of challenging the Appointing Authority's decision of 19 January 2005 upholding this CDR.

As regards the complainant's comment on the timing of the Legal Service's reply, it appeared to be unrelated to the Commission's interpretation of Regulation 1049/2001 and rather concerned the substance of the Legal Service's consultation.

The subject-matter of the second consultation of the Legal Service of 10 January 2005 had partly been a note drawn up by the complainant on 6 January 2005 listing alleged examples of 'manifest errors of fact in the appraisal report'. The official in charge at DG ADMIN had assessed this note and had found none of the assertions to stand up to the test for a manifest error of fact. He had sent the complainant a detailed assessment of this note and consulted the Legal Service on the complainant's note, his assessment thereof and on whether the final decision should include details of both.

It should be borne in mind that, on 10 January 2005, the Legal Service had not had to assess a complicated issue but merely to determine whether the official in charge at DG ADMIN had rightly concluded that the complainant's assertions would not hold up in court.

As regards the complainant's reference to Article 11 of Regulation 1049/2001, there was no 'certified inventory' of the elements on file no R/568/04 yet. Pursuant to Article 8 of Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure(5), the "coverage of the register provided for by Article 11 of Regulation (EC) No 1049/2001 shall be extended gradually". In any event, the complainant appeared to misconstrue the purpose of such an inventory. Article 11 (1) of Regulation 1049/2001 provided that such a register was to be established "to make citizens' rights under this Regulation effective". Its purpose was therefore not for the Commission to prove the existence of a document but for citizens better to target their requests for access under Regulation 1049/2001. However, in the present case there was no doubt as to which documents the complainant sought to obtain access to. Hence, the present coverage of Article 11 of Regulation 1049/2001 was of no relevance to the complaint.

As regards the interpretation of Article 4 (2), second indent of Regulation 1049/2001, reference was made to the detailed observations submitted by the Commission in its supplementary opinion. In addition to that, independent legal advice was an indispensable element of an institution's internal decision-making process even where, as in the case at hand, it was not required under the procedural rules.

In staff cases, members of the Legal Service were called on to assess the competing merits of often emotional and sensitive allegations made by and against staff members (who might well be known to the lawyers concerned) and their institutional hierarchy. It was the role of the Legal Service to advise the Commission, not the complainant, and to perform that role properly, it was vital that it could give advice candidly, without the risk of individual members of the Legal Service being drawn into direct and possibly personal conflict with a complainant.

Article 4 (2), second indent of Regulation 1049/2001 applied to the entirety of the Legal Service's opinion in this case. In the absence of an overriding public interest, neither full nor partial access would be granted.

The complainant's observations

Copies of the report on the inspection of the file and of the Commission's reply to the request for further information were forwarded to the complainant.

In his observations, the complainant submitted that the fact that the Ombudsman had accepted to investigate the complaint showed that it was admissible. The complainant added that the purpose of asking for access to the relevant documents had been to assess the prospects of an appeal against the decision of 19 January 2005.

The complainant noted that the Ombudsman's report on the inspection of the file did not shed any light on the contents of the relevant documents. He therefore asked whether the Legal Service, in its e-mail of 10 January 2005, had just stated that it did not have any comments on his note of 6 January 2005; whether it had agreed with the position of DG ADMIN; whether it had commented on any of the eight examples mentioned in this note; or whether it had asked for copies of the evidence mentioned in this note.

The complainant submitted that a disclosure of the relevant documents might lead to a self-correction of the material errors in the appraisal report if it turned out that no proper consultation had taken place. He also stressed that the Commission's claim that he was aiming at perpetuating very serious allegations was totally unfounded and without any relevance to the present case.

THE DECISION

1 Introductory remarks

1.1 On 12 July 2004, the complainant, an official of the European Commission, lodged an internal appeal on the basis of Article 90 (2) of the Staff Regulations of officials of the European Communities ("Staff Regulations") against his Career Development Report ("CDR") for the period from 1 January until 30 November 2003. On 6 January 2005, the complainant made further submissions to the Commission concerning his complaint. Directorate-General Personnel and Administration of the European Commission ("DG ADMIN") informed the complainant that the Commission's Legal Service had been consulted as regards his complaint, including his complementary comments of 6 January 2005. On 19 January 2005, DG ADMIN rejected this appeal.

On 24 January 2005, the complainant sent an e-mail to the official in charge at DG ADMIN in which he pointed out that he expected to receive a copy of the written opinion of the Legal Service.

In his reply of 24 January 2005, the official in charge at DG ADMIN explained that no access could be given to the opinion of the Legal Service. On 25 January 2005, the same official explained, in reply to a further query from the complainant, that no access to the comments of the Legal Service could be given since Article 4 (2), second indent and Article 4 (3) of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 on public access to European Parliament, Council and Commission(6) ("Regulation 1049/2001") prevented the Commission from doing so.

In his reply of 25 January 2005, the complainant queried how Article 4 (3) of Regulation 1049/2001 could be applicable in the present case. He added that if the Commission should still feel that it was prevented from granting access to the opinion of the Legal Service, it should at least show him that the latter had been consulted. In a further e-mail sent on 26 January 2005, the complainant added that such documents should at least be available to the Ombudsman and that it was good administrative practice to keep an inventory of the documents. The complainant therefore asked the Commission to review its decision to refuse to give him access to the document concerned.

In his reply sent by e-mail on the same day, the Commission official in charge pointed out that his refusal had not been based on Article 4 (3) of Regulation 1049/2001 alone.

In his complaint to the Ombudsman lodged at the end of January 2005, the complainant had indicated that he wished to complain about the decision that had been communicated to him on 19 January 2005. However, in a telephone conversation with the Ombudsman's Office on 10 February 2005, the complainant clarified that his allegation was that the Commission had been wrong to refuse to grant him access to the comments made by the Legal Service and that he claimed that he should be given access to these comments. In case he should be legally prevented from having access to these comments, he claimed that he should be given access to evidence, such as a certified inventory, that demonstrated that a consultation of the Legal Service had taken place.

1.2 In its opinion on the complainant's allegation and main claim, the Commission pointed out that the complainant had never lodged a confirmatory application under Regulation 1049/2001. In its reply to the Ombudsman's request for further information, the Commission repeated this statement and submitted that the complaint was therefore inadmissible, given that the complainant had not made the appropriate prior approaches that were required by Article 2 (4) of the Statute of the European Ombudsman(7).

1.3 Article 7 (2) of Regulation 1049/2001 provides that where a request for information based on that Regulation is rejected totally or partially, the applicant may, within 15 working days, make a confirmatory application asking the institution to reconsider its position. The Ombudsman has consistently taken the position that the requirement set out in Article 2 (4) of the Statute of the European Ombudsman that a complainant needs to make the "appropriate" prior approaches before being able to complain to the Ombudsman means that the complainant must have made both an initial and a confirmatory application under Regulation 1049/2001.

1.4 The Ombudsman notes, however, that after DG ADMIN refused to grant access to the documents concerned on 24 January 2005, the complainant asked it, in his e-mail of 26 January 2005, "to review its decision". Regard should also be had to the fact that the complainant did not refer to Regulation 1049/2001 in his e-mail of 24 January 2005 in which he stated that he expected to receive a copy of the written opinion of the Legal Service. It was the Commission itself, in its reply sent on the same day, that referred to Regulation 1049/2001 and thus manifested that it interpreted the complainant's request as a request for access to documents under Regulation 1049/2001. The Ombudsman considers that in view of these circumstances, it appears logical to assume that the Commission was bound to comply with the provisions of the Regulation that it had itself invoked. However, Article 7 (1) of Regulation 1049/2001 stipulates that, in case of a refusal to accept a request for access to documents under the Regulation, the institution has to "inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article". It is clear from the documents submitted to the Ombudsman that no such information was provided to the complainant.

1.5 In these circumstances, the Ombudsman considers that the Commission's view that the complaint is inadmissible is incorrect (1) because the complainant did ask the Commission to review its initial refusal to grant access and (2) because the Commission can in any event not reproach the complainant for having failed to make a confirmatory application under Regulation 1049/2001 in a case where it has itself failed to comply with its own obligation under that Regulation to inform the complainant of his right to make such an application.

1.6 The Commission has put forward a number of arguments that appear to concern the substance of the case in the course of which the relevant documents were drafted. However, given that the present complaint concerns the Commission's refusal to grant access to these documents, and not the substance of the underlying procedure, these arguments are without relevance for the present case. This conclusion applies in particular to the Commission's argument that there was no procedural requirement to consult the Legal Service in staff cases. It should be noted that Regulation 1049/2001 does not entitle the administration to deny access to a document on the grounds that there was no legal obligation to draw up such document. The above conclusion also applies to the Commission's argument that the complainant aimed at perpetuating very serious allegations, namely that his hierarchical superiors misrepresented facts in his CDR, instead of challenging the Appointing Authority's decision of 19 January 2005 upholding this CDR. The Ombudsman notes that this view has in any event been challenged by the complainant.

1.7 In its reply to the Ombudsman's request for further information, the Commission submitted that its duly motivated reading of Article 4 (2), second indent of Regulation 1049/2001, subject to the control of the Community courts, could not be an instance of maladministration. The Ombudsman agrees that there is no maladministration where a Community institution has correctly applied Regulation 1049/2001. Whether this has been the case here will be discussed below (see point 2). However, the Commission's argument could also be understood as meaning that the Commission considers that the Ombudsman is unable to examine whether its application of Regulation 1049/2001 was correct. It is clear that such a proposition would both be wrong and unacceptable. The Ombudsman considers it useful to recall that Article 195 of the EC Treaty entrusts him with the mission of examining instances of maladministration in the activities of the Community institutions and bodies, with the exception of the Community courts acting in their judicial capacity. The handling of requests for access to documents is thus not beyond the mandate of the Ombudsman, a fact that is expressly confirmed by Article 8 (1) of Regulation 1049/2001.

1.8 A considerable part of the arguments exchanged between the parties in the present case concerned the fact that the Legal Service's reply to the second request for consultation, made on 10 January 2005, was sent shortly after that request for access had been made. It should be noted that these arguments concern the substance of the Legal Service's consultation and reply. In the Ombudsman's view, these arguments are therefore irrelevant for the present case which concerns the question as to whether the Commission was entitled to refuse access to the opinions of the Legal Service.

2 Allegedly incorrect handling of request for access to documents

2.1 The complainant alleged that the Commission had been wrong to refuse to grant him access to the comments made by the Legal Service and that he claimed that he should be given access to these comments. In case he should be legally prevented from having access to these comments, he claimed that he should be given access to evidence, such as a certified inventory, that demonstrated that the Legal Service had actually consulted his internal appeal concerning his CDR.

2.2 In its opinion, the Commission pointed out that DG ADMIN had consulted the Legal Service on two occasions in this case. The first consultation had been carried out by e-mail on 14 December 2004. The Legal Service had replied by note dated 22 December 2004. The second consultation had been carried out by e-mail on 10 January 2005. The Legal Service had replied by e-mail on the same day. The Commission added that a 'certified inventory' regarding these documents did not exist.

As to substance, the Commission considered that the refusal to grant access to the opinion of the Legal Service was justified on the basis of Article 4 (2), second indent of Regulation 1049/2001, since disclosure would undermine the protection of legal advice. The Commission noted that the opinion of the Legal Service in the context of a complaint against a CDR was an important instrument enabling the Appointing Authority to ensure that its acts were compatible with Community law. According to the Commission, disclosure of the present opinion could give rise to uncertainty as regards the role of reporting officers and validators within the framework of a CDR and indeed the assessment of their evaluation within the framework of future CDR exercises following such an opinion. The Commission stressed that only clear, independent and objective legal advice could play an effective role in influencing the internal decision-making process. Consistent with that, in order to guarantee that these opinions were delivered in complete independence and objectivity, it was essential that their confidentiality was preserved. The Commission submitted that making particular reference to the contents of the legal opinions, to which the complainant now requested access, would - as the Court of First Instance had held in Case T-84/03 Turco v Council(8) - deprive the said exception of its effect.

The Commission further submitted that there was no indication of the existence of an overriding public interest in disclosure and that the fact that the complainant was a member of the Commission's staff was not relevant as regards the right of access under Regulation 1049/2001. It concluded that it was therefore not possible to grant access to the relevant documents, whether in whole or in part.

2.3 In his observations on the Commission's opinion, the complainant took the view that the entire consultation should, in any event, be made available to the Ombudsman. In the complainant's view, the independence and objectivity of the reply of the Legal Service of 10 January 2005 could be questioned on account of the speed with which it had been sent, unless access was given. The complainant stressed that no evidence had been provided by the Commission to show that the Legal Service had actually been consulted. He noted that, according to Article 11 of Regulation 1049/2001, each institution had to provide access to a register of documents.

The complainant pointed out that the reasons given by the Commission for maintaining its refusal to disclose the relevant documents were not convincing in his view. If the Legal Service's opinion expressed any views on the role of reporting officers and validators, its disclosure would contribute to increasing clarity as regards the roles of these persons. The complainant added that no explanation had been given as to why the ability of the Commission to seek independent and objective advice from its Legal Service would be jeopardised if he were given access to the opinion in question.

2.4 In the light of these observations, the Ombudsman considered that further inquiries were necessary.

2.5 On 29 August 2005, the Ombudsman therefore asked the Commission (1) to specify in more detail, and taking into account the complainant's observations, the reasons on the basis of which it considered that Article 4 (2), second indent of Regulation 1049/2001 was applicable in the present case and (2) to allow his services to inspect its file.

2.6 On 22 September 2005, the Ombudsman's services inspected the Commission's file, in particular the two replies given by the Commission's Legal Service, on 22 December 2004 and 10 January 2005, to requests for consultation of the Legal Service's opinion.

2.7 In its reply to the Ombudsman's request for further information, the Commission submitted that the purpose of the inventory foreseen by Article 11 (1) of Regulation 1049/2001 was "to make citizens' rights under this Regulation effective". However, in the present case, there was no doubt as to which documents the complainant sought to obtain access to. In the Commission's view, Article 11 of Regulation 1049/2001 was therefore of no relevance to the complaint.

As regards the interpretation of Article 4 (2), second indent of Regulation 1049/2001, the Commission referred to the comments it had made in its opinion. The Commission added that independent legal advice was an indispensable element of an institution's internal decision-making process. It further pointed out that in staff cases, members of the Legal Service were called on to assess the competing merits of often emotional and sensitive allegations made by and against staff members (who might well be known to the lawyers concerned) and their institutional hierarchy. It was the role of the Legal Service to advise the Commission, not the complainant, and in order to perform that role properly, it was vital that it could give advice candidly, without the risk of individual members of the Legal Service being drawn into direct and possibly personal conflict with a complainant.

2.8 Copies of the report on the inspection of the file and of the Commission's reply to the request for further information were forwarded to the complainant. In his observations, the complainant noted that the Ombudsman's report on the inspection of the file did not shed any light on the contents of the relevant documents. He therefore asked whether the Legal Service, in its e-mail of 10 January 2005, had just stated that it did not have any comments on his note of 6 January 2005; whether it had agreed with the position of DG ADMIN; whether it had commented on any of the eight examples mentioned in this note; or whether it had asked for copies of the evidence mentioned in this note.

2.9 The Ombudsman notes, first of all, that the inspection of the Commission's file by his services has confirmed that the Commission did indeed consult the Legal Service on two occasions and that the Legal Service replied to these consultations on 22 December 2004 and 10 January 2005 respectively. The fact that these replies were sent was also recorded in the Ombudsman's report on the inspection of the Commission's file. Given that the complainant's subsidiary claim for evidence that demonstrated that a consultation of the Legal Service had taken place was apparently meant to verify that these consultations had indeed taken place, the Ombudsman considers that there is thus no need for further inquiries as regards this subsidiary claim.

2.10 In so far as the complainant's main allegation and claim is concerned, the Ombudsman notes that the inspection of the Commission's file has confirmed that the relevant documents - the opinions of the Legal Service given in reply to consultations by DG ADMIN - constitute "legal advice" within the meaning of Article 4 (2), second indent of Regulation 1049/2001.

2.11 In order to justify its refusal to grant access to these documents, the Commission thus had to show that their disclosure would undermine the protection of legal advice.

2.12 In the light of the results of the inspection of the relevant documents, the Ombudsman is not convinced that disclosure of the relevant opinions of the Legal Service could give rise to uncertainty as regards the role of reporting officers and validators within the framework of a CDR and indeed the assessment of their evaluation within the framework of future CDR exercises following such opinions, as the Commission claimed in its opinion.

2.13 However, regard should be had to the fact that in Case T-84/03 Turco v Council, the Court of First Instance accepted that the independence of the opinions of the Legal Service can constitute an interest to be protected(9). In its reply to the Ombudsman's request for further information, the Commission has provided specific and detailed comments in this regard, particularly as regards the need for independent legal advice in staff matters (see point 2.7 above). The Ombudsman finds these arguments convincing. Disclosing the views of members of the Legal Service in staff cases could indeed involve these officials in discussions or disputes with those other officials on whose cases they were asked to provide a legal opinion. In these circumstances, the Ombudsman considers that the Commission's view that the exception set out in Article 4 (2), second indent of Regulation 1049/2001 could be applied in the present case appears reasonable.

2.14 The Ombudsman notes that the complainant has not invoked any overriding public interest in disclosure of the relevant documents. As the Commission has correctly observed, the complainant's specific interest in disclosure (resulting from the fact that he was an official of the Commission and that the relevant documents concerned an internal complaint he had lodged) cannot be taken into account in this context. Regulation 1049/2001 does not require an applicant to adduce any reasons for his request to access to documents. Conversely, however, any such reasons that might exist cannot be taken into account for the purpose of deciding whether access has to be granted, unless they constitute an overriding public interest in disclosure. Regard should be had to the fact that a document that has been disclosed to one applicant under Regulation 1049/2001 must subsequently be disclosed to all other applicants for access as well. However, it may be useful to add that these considerations only apply to requests for access made on the basis of Regulation 1049/2001. They are thus not necessarily transferable to the handling of requests for access that are based on other provisions (for example, the Staff Regulations).

2.15 Where no access can be granted to a document in its entirety under Regulation 1049/2001, the institution concerned has to examine the possibility of giving partial access. However, in the light of the results of the inspection of the relevant documents, the Ombudsman considers that the Commission’s refusal to give partial access in the present case appears to be justified.

2.16 In his observations on the Commission's reply to the request for further information, the complainant submitted a number of questions concerning the contents of the Legal Service's opinion of 10 January 2005. In this context, it should be stressed that the Ombudsman's task is to examine possible instances of maladministration, and not to reply to questions submitted by the complainant. In a case where a refusal to grant access to documents falls to be examined and where the Ombudsman finds that this refusal is justified, the Ombudsman would in any event be unable to answer such questions if doing so would make it necessary to disclose the contents of these documents. Since the complainant's questions would oblige the Ombudsman to do precisely that, the Ombudsman cannot reply to the complainant's questions.

2.17 In view of the above considerations, the Ombudsman takes the view that there was no maladministration by the European Commission in the present case.

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) OJ 2001 L 145, p. 43.

(2) Case T-84/03 Turco v Council, judgment of 23 November 2004.

(3) Case T-84/03 Turco v Council, cited above, paragraph 74.

(4) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgment of 26 April 2005.

(5) OJ 2001 L 345, p. 94.

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

(7) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(8) Case T-84/03 Turco v Council, judgment of 23 November 2004.

(9) Loc. cit., paragraph 79.