Dear X,

On 14 March 2000, you lodged a complaint with the European Ombudsman concerning the funding of a road construction project on a Carribbean island by the Directorate General for Development (former DG 8) of the European Commission.

On 14 April 2000, I forwarded the complaint to the President of the European Commission. The European Commission sent its opinion on 7 August 2000 and I forwarded it to you with an invitation to make observations, if you so wished. I did not receive any observations from you.

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

THE COMPLAINT

The complainant is a citizen of the European Union who regularly stays on a Caribbean island. He got to know about a project aiming at rehabilitating a road section on the island. Believing that the European Union planned to fund the rehabilitation, he contacted the European Commission to question the public interest of the project and to obtain some documents in relation to it.

The complainant considered that there was no need for this particular road in this area of the island, that the island had other priorities, that the local parliament would not have the resources to maintain this road and finally that the whole project had a negative environmental and sociological impact. In summary, the complainant considered that the project should not be funded by the EU.

Considering that he was not given access to the documents he requested and that the project had not been properly assessed, the complainant lodged a complaint with the European Ombudsman. He in summary made following claims:

1. The information provided by the Commission further to the complainant's request was not satisfactory, and the complainant never received the information he actually asked for.
2. The road construction project on the island was not adapted to the local situation.
3. The project had a major environmental and sociological impact which should have been taken into account by the Commission.
4. Finally the complainant asked for a suspension of the building works and an independent assessment of the project.

THE INQUIRY

The European Commission's opinion

The opinion of the European Commission on the complaint was in summary the following:

The rehabilitation of the road mentioned by the complainant had been identified by the local government as a possible candidate for EDF (European Development Fund) funding. It aimed at improving the economic activity in an attractive area of the island which was disadvantaged by a difficult dirt road.

In relation to the complainant's claim, the Commission made the following statement:

1. The complainant has been complaining about the project since late 1998. The points raised in his letters were answered on three occasions, i.e 26 January, 15 February and 8 March 1999. Given the preparatory stage of the project, the complainant was provided with sufficient information.

   According to the Commission:

   " The documents requested by [the complainant] are all internal Commission documents meant to facilitate the identification and the instruction of the project.

   Documents referred to this project identification stage are preliminary documents dealing with different aspects of the project idea. Until a project reaches a certain maturity, it might be counter-productive and sometimes misleading to disclose any such documents."

2. The Commission was aware of a possible negative aspect of the project. In 1998, the Commission and the local parliament agreed to prepare and enforce a Management plan to strictly regulate the development of the area involved in the project and in particular to preserve the natural resources.
3. The complainant was informed that EDF funds would not finance the project unless studies and assessments were carried out. As it stands, the project does not seem economically justified and has therefore been put on hold. Alternatives are discussed with the local authorities.
4. If rehabilitation works have already been executed, they were undertaken by the local authorities out of their own funds. Given the priority attributed by the local authorities to this rehabilitation, it could be assumed that the works will go on without EDF funding.

The complainant's observations

The complainant did not hand in any observations.

THE DECISION

1 Information provided to the complainant

1.1 The complainant alleged that the Commission failed to disclose the documents he requested.

1.2 The Commission in turn put forward that the complainant has been sufficiently informed and that it might be counterproductive and sometimes misleading to disclose preliminary documents.

1.3 With a decision of 8 February 1994, the Commission adopted a Code of conduct concerning public access to Commission and Council documents(1). The aim of this Decision is to give effect to the principle of the largest possible access for citizens to information, with a view to strengthening the democratic nature of the institutions and the trust of the public in the administration. As the Community courts have held, Decision 94/90 is a measure conferring on citizens legal rights of access to documents held by the Commission(2), and is intended to apply generally to requests for access to documents(3)

1.4 The Code of conduct concerning public access to Commission and Council documents provides for a limited list of exceptions to the right of access to documents. The Commission did not rely on any of them to justify its refusal to disclose the documents requested by the complainant. In the absence of such justification the Ombudsman considers that the Commission has not considered the complainant's request under the light of its decision 94/90. This constitutes an instance of maladministration.

2 Suitability of the project for the local situation

2.1 The complainant considered that the road-construction project aiming at rehabilitating a road section on the island was not adapted to the local situation.

2.2 The Commission agreed on that point and stressed that together with the local parliament it decided to prepare and enforce a Management plan to strictly regulate the development of the area.

2.3 The measures taken by the European Commission appear to be reasonable. The inquiry has revealed no instance of maladministration as regards this aspect of the case.

3 Failure to take into account the sociological and environmental impact of the project

3.1 The complainant claimed that the Commission should have taken into account the sociological and environmental impact of the project.

3.2 The Commission stressed that the project would not be financed without further studies and assessments. As it stands the project has been put on hold because it was economically unjustified.

3.3 The inquiry has revealed no instance of maladministration as regards this aspect of the case.

4 Suspension of the building works and independent assessment of the project

4.1 The complainant requested an immediate suspension of the works and an independent assessment of the project.

4.2 The Commission stated that the works which had been carried out were financed directly by the local authorities and not out of EDF funds.

4.3 It appears that the Commission has no power to intervene in works which are carried out and financed by the island's authorities. The inquiry has therefore revealed no instance of maladministration as regards this aspect of the case.

5 Conclusion

On the basis of the European Ombudsman's inquiries in this case, it appears necessary to make the following critical remark:

The Code of conduct concerning public access to Commission and Council documents provides for a limited list of exceptions to the right of access to documents. The Commission did not rely on any of them to justify its refusal to disclose the documents requested by the complainant. In the absence of such justification the Ombudsman considers that the Commission has not considered the complainant's request under the light of its decision 94/90. This constitutes an instance of maladministration.

Given that the complainant, further to the information he received in the course of the present inquiry, did not appear to show any specific interest in obtaining the documents he had originally asked for, the Ombudsman decides to close the case.

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

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Commission Decision of 8 February 1994 on public access to Commission documents (94/90/ECSC, EC, Euratom), Official Journal L 046 , 18/02/1994 p. 0058 - 0061.

(2) Case T-105/95, WWF UK v. Commission, [1997] ECR-II-0313, par. 55.

(3) Case T-124/96, Interporc v. Commission, [1998] ECR-II-0231, par. 48.