THE BACKGROUND TO THE COMPLAINT

1. In May 2007, the complainant participated in Open Competition EPSO/AD/77/06 and sat two computer-based admission tests. On 1 June 2007, EPSO informed him that his marks were not high enough to allow him to participate in the next stage of the competition.

2. On 4 June 2007, he requested EPSO to provide him with copies of the questions put to him, his answers, as well as the correct answers. On 27 June 2007, EPSO informed the complainant of its refusal to grant his request and explained the reasons for this decision.

3. On 10 July 2007, the complainant submitted to EPSO a confirmatory application referring to his rights under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents ('Regulation 1049/2001')[1] and requesting access to the above documents. On 20 July 2007, EPSO informed the complainant that he should address his confirmatory application to the Secretariat-General of the European Commission ('the SG').

4. On 21 July 2007, the complainant submitted his confirmatory application to the SG concerning EPSO's refusal to grant him access to the requested documents.

5. On 22 September 2007, not having received a reply to his confirmatory application, the complainant brought an action before the Court of First Instance of the European Communities against EPSO's refusal to provide him with copies of the requested documents. The case is still pending before that court[2].

6. On 17 January 2008, after apologising for the delay, the SG rejected the complainant's confirmatory application of 20 July 2007. In particular, it noted that the complainant's letter of 20 July 2007 had been "lost/misplaced[3]". It was only after the Commission was informed of the complainant's relevant action before the Court of First Instance that the SG became aware of the letter's existence. The SG rejected explicitly the confirmatory application and explained the reasons why.

7. In the meantime, the complainant also challenged EPSO's decision to exclude him from the next stage of the competition. On 6 December 2007, following EPSO's refusal to review its decision, the complainant lodged an application before the Civil Service Tribunal[4]. The application is still pending.

8. On 14 April 2008, the complainant turned to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

9. On 5 June 2008 the Ombudsman opened an inquiry into the complainant's following allegation:

The SG's statement that his letter of 20 July 2007 had been lost/misplaced was unacceptable and showed a violation of the Commission's obligations to maintain adequate records and to acknowledge receipt of incoming mail.

THE INQUIRY

10. On 5 June 2008, the Ombudsman invited the Commission to submit an opinion on the complainant's allegation, which it did on 3 October 2009. The Ombudsman then invited the complainant to submit observations, which he did on 28 November 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

11. The Ombudsman first notes that the present case concerns the Commission's alleged failure to keep adequate records and to acknowledge receipt of incoming mail and points out that such failure resulted in the loss of the complainant's letter. The fact that the said letter was a confirmatory application concerning EPSO's refusal to grant access to the requested documents is not a decisive factor in the present case. Therefore, although the Ombudsman has doubts concerning the SG's competence to examine confirmatory applications against EPSO's refusal to grant access to a document under Regulation 1049/2001[5], he considers that this issue could eventually be examined more thoroughly at a later stage. Accordingly, his present review will only include an assessment of the complainant's allegation.

A. Arguments presented to the Ombudsman

12. The complainant expressed his dissatisfaction with the fact that the Commission lost his letter and only replied to him after he had lodged an application before the Court of First Instance.

13. In its opinion, the Commission questioned the admissibility of the complaint. According to the Commission, its failure to answer to the complainant's request is subject to legal proceedings before the Court of First Instance. Case T-374/07 concerns an action for annulment of the Commission's decision to reject his confirmatory request.

14. Although the Commission suggested that the case should be declared inadmissible, it nevertheless provided an opinion on the substance of the complainant's allegations. More specifically, the Commission expressed its regrets over the fact that the document in question had been lost, and explained that this was due to an administrative error. It pointed out that the SG received more than two hundred confirmatory applications per year and that, until that time, no similar incident had been reported. The Commission concluded that its system of keeping records and of acknowledging the receipt of incoming mail was reliable and adequate.

15. In his observations, the complainant reiterated that the fact the Commission had lost a letter sent by registered mail was unacceptable.

B. The Ombudsman's assessment

(a) On the admissibility

16. According to the first paragraph of Article 195(1) of the EC Treaty, the Ombudsman is not empowered to examine a case where the relevant facts are or have been the subject of "legal proceedings". Furthermore, Article 1(3) of the Ombudsman's Statute provides that "[t]he Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling." However, it should be noted that this exclusion only applies if the parties, as well as the subject matter of the dispute, are identical.

17. In the present case, the action brought before the Court of First Instance concerns EPSO's refusal to provide the complainant with the requested documents. In contrast, the subject matter of the complaint lodged before the Ombudsman concerns the Commission's alleged failure to keep records of incoming mail and to acknowledge receipt of the complainant's letter. Therefore, there is no doubt that the subject matter of the two proceedings is different. The mere fact that the complainant's letter was sent to the Commission for the same purposes as the action brought before the Court of First Instance, namely, to obtain copies of the requested documents, cannot alter the above consideration and lead to the conclusion that the present complaint is outside the Ombudsman's mandate. Consequently, there are no grounds to accept the Commission's preliminary objection.

(b) On the substance

18. The Ombudsman reiterates that principles of good administration, as reflected in the Commission's Code of Good Administrative Behaviour[6], require that every written communication shall receive an acknowledgement of receipt within a period of two weeks, as well as a substantive reply within a reasonable period of time.

19. In the present case, the Commission failed to acknowledge receipt of the complainant's letter of 21 July 2007 and to provide him with a substantive reply within a reasonable period of time. The Ombudsman stresses that the Commission should always pay special attention when processing incoming mail. Having said that, the Ombudsman cannot overlook the fact that, once this omission was brought to its attention, the Commission explicitly recognised and apologised for losing the complainant's letter. Furthermore, it provided the complainant with a detailed reply concerning the merits of his allegations. Thus, in light of the above considerations and given that the Ombudsman has received the Commission's reassurance that no similar incidence had been reported until that time, no further inquiries into the present complaint are justified.

C. Conclusions

For the reasons given in paragraph 19, no further inquiries are justified into the present complaint. The Ombudsman therefore closes the case.

The complainant and Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 26 March 2009

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[1] OJ 2001 L 145, p. 43.

[2] Case T-374/07, Pachtitis v. Commission of the European Communities and EPSO.

[3] "se soit égarée", according to the term used in the original letter.

[4] Case F-35/2008, Pachtitis v. Commission of the European Communities.

[5] For a more detailed assessment, see the Ombudsman's decision on complaint 1150/2008/(ID)(BU)CK.

[6] http://ec.europa.eu/civil_society/code/_docs/code_en.pdf