# Decision of the European Ombudsman on complaint 1402/2002/GG against the European Commission
- Autor: Europejski Rzecznik Praw Obywatelskich
- Data : 2003-11-26T00:00+01:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/pl/decision/pl/1776)
---
Strasbourg, 26 November 2003

Dear Mr T.,

On 30 July 2002, you made a complaint to the European Ombudsman concerning the
European Commission's alleged refusal to provide you with information.

On 30 August 2002, the Ombudsman forwarded the complaint to the President of
the European Commission. The Commission sent its opinion on 12 December
2002. The Ombudsman forwarded it to you on 16 December 2002 with an invitation
to make observations, which you sent on 14 January 2003.

On 24 January 2003, the Ombudsman forwarded a copy of your observations to the
Commission and asked the latter to comment thereon. The Commission sent
its further opinion on 25 February 2003. The Ombudsman forwarded it to
you on 4 March 2003 with an invitation to make observations, which you
sent on 5 March 2003.

On 21 May 2003, I submitted a proposal for a friendly solution to the Commission.
The Commission sent its reply on 14 July 2003. I forwarded it to you
on 21 July 2003 with an invitation to make observations. On 25 July 2003,
I sent you the translation into German of the Commission's reply.

On 19 August 2003, you sent me your observations on the Commission's reply.

On 3 September 2003, I asked the Commission for further information in relation
to your complaint. The Commission sent its reply on 29 September 2003,
and I forwarded it to you on 6 October 2003 with an invitation to make
observations by 15 November 2003 at the latest.

No observations were received from you. In a telephone conversation with my office
on 17 November 2003, you stressed that you found it regrettable that
you had had to turn to me in order to obtain the relevant information.
You confirmed, however, that a friendly solution had been brought about.

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

THE COMPLAINT
-------------

The complainant is the Brussels correspondent of the "Stern", a German weekly.
Since February 2002, the publication has covered a number of alleged
financial irregularities concerning the European Commission, particularly
at Eurostat, the Statistical Office of the European Communities (one
of the Directorates-General of the Commission). The complainant submitted
copies of written questions and letters that he had sent to the Commission
on 12 March 2002, 26 March 2002, 28 March 2002, 5 April 2002, 8 July
2002, 22 July 2002, 26 July 2002 and 7 August 2002 as well as some replies
from the Commission. Several of these questions concerned the contracts
that a company called Eurogramme had concluded with Eurostat.

The complainant alleged that time and again the Commission had refused to provide
information on the grounds that the relevant questions concerned ongoing
investigations by OLAF, the European Anti-Fraud Office. According to
the complainant, the Commission on occasions even refused to provide
basic information such as what contracts the Commission had entered into
with a particular company. The complainant considered that the Commission's
behaviour was incorrect and impeded the publication's efforts to inform
the public about the relevant issues.

The complainant put forward a number of arguments to support his case. First,
he took the view that the Commission had given no explanations as to
how providing the information requested could affect the investigations
carried out by OLAF. In his view, publications in the press would on
the contrary rather appear to have speeded up such investigations. Second,
the complainant submitted that there was no evidence to suggest that
OLAF had asked the Commission to withhold the relevant information. Third,
the complainant argued that investigations by OLAF sometimes took an
extraordinary amount of time. According to him, some of the allegations
concerning Eurostat were being investigated since 1998. The complainant
stressed that the Commission would thus be able to withhold basic information
for years, not to mention subsequent criminal or administrative investigations
that could also be used as a reason for not disclosing information. Fourth,
the complainant argued that the Commission behaved in an arbitrary way, given that on occasions it answered questions relating to issues that were the
subject-matter of investigations by OLAF whilst on other occasions it
refused to do so. Finally, the complainant argued that the Commission
sometimes arbitrarily changed the reasons it gave for refusing to provide
the information requested. According to the complainant, in one case
the Commission had first informed him that the relevant issues were being
verified, then written that the relevant questions could not be answered
"at present" before finally informing him that it could not provide the
relevant information "as it partly relates to an ongoing OLAF investigation".

The complainant claimed that the Commission should answer the questions that
had been submitted to it without success since March 2002.

THE INQUIRY
-----------

**The Commission's opinion**

In its opinion, the Commission made the following comments:

The Commission's Code of good administrative behaviour applied equally to requests
for information by citizens and to requests for information by the media.
Media (i.e. journalists) were not entitled under the present Code to
any particular and/or additional rights beyond what the Code foresees
for dealing with inquiries from the general public.

The Press and Communication Service had been scrupulous in adhering to the deadlines
stipulated, that is to say, a reply has to be sent within fifteen working
days of the receipt of inquiries. However, the Commission acknowledged
that no reply had been given to the complainant's message of 5 April
2002 and apologised for this omission.

The perception that the Commission had been arbitrary in its decisions regarding
requests for sensitive information arose from the fact that there had
to be a case by case approach. The inquiries of the complainant for factual
information had been properly answered by the Commission. However, most
of the inquiries cited in the complaint did not relate to straightforward
existing information, but required that the Commission in its reply take
formal positions on very specific issues. In this respect the Commission
had a discretionary power over the position it wanted to take and when
to take it and could, therefore, reserve the right not to make statements
on an issue.

In respect of the allegation that the Commission had refused to answer questions
on the grounds that the information related to an OLAF investigation,
the Commission wished to note that questions concerning a matter under
such investigation should be directed to OLAF.

All requests for documents were dealt with under Regulation No. 1049/2001 on
access to documents. The Commission was of the opinion that the specific
inquiry by the complainant -- requesting a list of all existing contracts
concluded with a specific company -- fell within the remit of this regulation.
There was no database which provided a comprehensive list of contracts.
A list of "commitments" to companies called "Eurogramme" did however
exist, and this had been used to produce the contract list manually,
in co-operation with the different Directorates-General. The Commission
considered that in this specific case, the requested list did not constitute
a document that would fall under one of the exceptions provided under
the regulation and could therefore be released to the complainant.

A copy of the list of contracts with Eurogramme was attached to the Commission's
opinion.
**The complainant's observations**

In his observations, the complainant maintained his complaint
and made the following further comments:

The duty of public authorities to provide information was enshrined in the press
law of the Member States and had its foundation also in the principle
of the freedom of the press recognised throughout the Union. The Charter
on Fundamental Rights also mentioned the right to "freedom of information".

The Commission was of course free to decide as to how and when it should take
a position. The questions put to the Commission however did not concern
any expressions of opinion by the Commission but were aiming at facts
such as Commission decisions, administrative acts and allegations that
had been made in public or in documents and in respect of which a confirmation
or rebuttal was asked for. The question as to what conclusions the Commission
had drawn from cases of bad management of Community funds was not a question
aiming at an expression of opinion but had the purpose of finding out
what the Commission had in fact done. If the Commission should have done
nothing, this was also a fact the public was entitled to learn about.

The Commission's suggestion that inquiries could be put directly to OLAF was
misleading. OLAF practically always refused to provide information in
relation to pending investigations. Moreover the relevant questions did
not concern investigations by OLAF but facts within the sphere of the
Commission.

It was also misleading to allege that the Commission had, apart from one exception,
always complied with its Code of good administrative behaviour. As a
matter of fact, the Commission often left questions concerning sensitive
issues (like the Commission's accounting system or legally disputed elements
of the remuneration of members of the Commission) unanswered. This applied
to the inquiries of 7 June 2002, 16 June 2002 and 22 July 2002 (concerning
the submission of a report) in their entirety and to part of the inquiry
of 2 June 2002.

The complainant claimed that the Commission should change its administrative
practice and answer his questions.

Copies of the questions of 2 June 2002, 7 June 2002, 16 June 2002 and 22 July
2002[(1)](#(1)){#Footnote1} were attached to the complainant's observations.
**Further inquiries**

After careful consideration of the Commission's opinion and
the complainant's observations, it appeared that further inquiries were
necessary. The Ombudsman therefore asked the Commission to comment on
the complainant's observations.
*The Commission's second opinion*

In its second opinion, the Commission made the following comments:

The complainant did not specify to which article of the Charter he referred by
mentioning the right to "freedom of information". The Commission nevertheless
presumed that the complainant referred to article 11 ("freedom of expression
and information") and article 42 ("right of access to documents") of
the Charter.

Article 42 of the Charter had exactly the same wording as Article 255 of the
EC Treaty. The principles and limits of the public's right of access
to European Parliament, Council and Commission documents had been laid
down in Regulation No. 1049/2001.

The Commission's Code of good administrative behaviour contained a commitment
to answer inquiries in the most appropriate manner and as quickly as
possible. It did not oblige Commission staff to provide all the information
requested. According to the Code, a member of staff could consider that
it was not in the Community interest for the information to be disclosed.
In this case, the refusal to provide information should be justified.

Concerning the alleged lack of reasoning for the refusal to provide information,
the Commission was of the opinion that both the existence of ongoing
OLAF and Commission-internal investigations represented sufficient grounds
for the refusal.

All inquiries by the complainant for purely factual information had been properly
answered or had been referred to as currently being the object of an
investigation and that, therefore, the Commission could not answer at
that specific point in time.

Questions relating to issues under investigation by OLAF should be addressed
to OLAF. It should be stated, however, that it was OLAF's policy never
to comment on ongoing investigations. Likewise the Commission considered
that it was not appropriate to provide information that could prejudice
the proper conduct of investigations. Moreover, the protection of the
purpose of investigations was a specific exception to the right of access
to documents under Regulation No. 1049/2001.

With regard to the inquiries of 2 June 2002, 7 June 2002, 16 June 2002 and 22
July 2002, the first of these had been answered in writing on 5 June
2002. The questions raised in the notes of 7 June and 22 July 2002 had
been answered orally by telephone. In so far as the note of 16 June 2002
was concerned, the complainant had been asked to address the questions
relating to corrective coefficients to Mr M., the spokesman responsible.
Mr M. had not received the questions and had been personally unaware
of them. This was the reason why no response had been sent. The Commission
noted, however, that the complainant's questions were almost identical
to some of the questions raised by Mrs Gabriele Stauner MEP in questions
P-1805/02 and E-2807/02.

Excerpts from the Commission's answer to Mrs Stauner's questions were enclosed
with the Commission's second opinion.
*The complainant's observations*

In his observations on the Commission's second opinion, the
complainant made the following comments:

If the Commission should be of the opinion that on the European level there was
no duty to provide information to journalists, it would point at a notable
gap in Community law and the Commission would be called upon to submit
a legislative proposal to stop that gap. On the other hand, this would
not free the Commission of its obligation to act on the basis of clear
and coherent principles when it did provide information.

However, this was not the case at present. The Commission used the reference
to investigations by OLAF in an arbitrary manner. On occasions, the Commission
did provide information, on others it did not. This was done not because
of ongoing investigations by OLAF but for reasons that were not explained.

The Commission was of course entitled to refuse to provide information in certain
clearly defined cases (for example, disciplinary proceedings) in order
to protect for example personality rights. However, detailed reasons
should be given for such refusals instead of a mere reference to an investigation
by OLAF.

It was pleasing to note that one of the questions -- the one concerning Eurogramme
-- had been answered. It was however a reason for criticism that a complaint
to the Ombudsman had been necessary to achieve this outcome.

Neither the questions of 7 June 2002 nor those of 22 July 2002 had been answered,
either in writing or orally. It was telling that the Commission had neither
submitted any evidence to prove that it had answered these questions
nor named the person who had answered them or the day when this had happened.
In his note of 22 July 2002, he had referred to the fact that the inquiry
of 7 June 2002 had not yet been answered. At the time, the Commission
had not denied this.

Regarding the inquiry of 16 June 2002, he had assumed that the relevant questions
would be passed on to Mr M.

The inquiry of 2 June 2002 had indeed been replied to. However, the reply had
left open most of the questions. He had pointed this out in his messages
of 7 June 2002 and 22 July 2002.

The complainant concluded by claiming that written replies should be sent to
the relevant questions.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION
------------------------------------------------------

After careful consideration of the opinions and observations, the Ombudsman was
not satisfied that the Commission had responded adequately to all the
complainant's allegations.
**The proposal for a friendly solution**

Article 3 (5) of the Statute of the Ombudsman[(2)](#(2)){#Footnote2} directs the
Ombudsman to seek, as far as possible, a solution with the institution
concerned to eliminate the instance of maladministration and satisfy
the complaint. The Ombudsman's provisional conclusion was that the Commission's
refusal to answer the complainant's questions, in so far as the latter
requested the Commission to provide information, could be an instance
of maladministration.

The Ombudsman therefore made the following proposal for a friendly solution to
the Commission:
> The European Commission should consider providing the information requested by
> the complainant, unless there are valid reasons for not doing so.

This proposal was based on the following considerations:

1 On the basis of the complainant's comments and the Commission's opinions, the
Ombudsman assumes that the complainant still wishes to receive a reply
to questions 6 to 9 of the inquiry of 12 March 2002, questions 1 to 8
and 10 of the inquiry of 26 March 2002, questions 1 to 4 of the inquiry
of 28 March 2002, questions 2 to 8 of the inquiry of 2 June 2002, to
the inquiry of 7 June 2002 and to the inquiry (concerning the submission
of a report) of 22 July 2002.

2 The Ombudsman considers that it is good administrative practice for the administration
to provide information that has been requested by citizens, unless there
are valid reasons for refusing to do so. It appears useful to recall
that Article 1 of the Treaty on European Union stipulates that decisions
should be taken as openly as possible and as closely as possible to the
citizen. The Ombudsman takes the view that only a transparent and service-minded
administration will do justice to this requirement. Account should furthermore
be taken in this context of the vital role of the media in informing
citizens about the work of the EU, thus allowing citizens to hold the
institutions and bodies of the EU to account.

3 The Ombudsman considers that a distinction has to be drawn in this context
between a request for information and a request to take a position on
a certain issue. Given that the complainant accepts that the Commission
is free to decide as to how and when it should take a position on a specific
issue, only the Commission's alleged failure to reply to requests for
information needs to be discussed here. The Commission argues that many
of the questions did not relate to straightforward existing information
but required it to take a position on very specific issues. An examination
of the documents submitted by the complainant shows that this argument
is not without merit. The Ombudsman notes, however, that there are also
various questions asking for straightforward information, for example
question 10 of the inquiry of 26 March 2002 (in which the complainant
asked whether it was true that tasks previously carried out by a certain
company for 1.5 Mio € a year had now been entrusted to another company
for 500 000 € a year) or question 3 of the inquiry of 28 March 2002 (asking what the Commission
had done to recover a debt owed to it by a certain company).

4 If a citizen asks for information that the administration considers cannot
be given to him, it is good administrative practice to inform the applicant
of the reasons why the information that he has requested cannot be provided
to him. In the present case, the Commission has limited itself to stating
that the relevant information cannot be provided since it concerned a
matter under investigation by OLAF.

5 The Ombudsman considers that it is legitimate for the administration to refuse
to provide information that could prejudice the proper conduct of investigations,
be they carried out by OLAF or the Commission itself. He is not convinced,
however, that the Commission has shown that it was entitled to refuse
to provide all the information requested by the complainant on the basis
of this consideration. To cite only one example in addition to those
already mentioned in point 1.5 above, question 8 of the inquiry of 2
June 2002 asks the Commission to specify how many persons are authorised
to handle the Sincom system and what their names are. It has not been
explained how answering such questions could prejudice the proper conduct
of the investigation carried out by OLAF. The Ombudsman accepts that
there may be cases where the administration cannot provide more detailed
reasoning because doing so would already jeopardise the aim which justifies
the refusal of information. It does not appear, however, that this would be the case with all the requests for information submitted by the complainant
in the present case.

6 In his observations on the Commission's second opinion, the complainant accepted
that there may be other reasons that could justify a refusal to provide
information. The Ombudsman notes, however, that the Commission has not
relied on any other reasons in order to justify its refusal to provide
the information that had been requested.
**The Commission's reply**

In its reply, the Commission stated that it appreciated the
proposal for a friendly solution. The Commission noted that it had reviewed
all the questions that had been addressed to it by the complainant and
that a complete list of the Commission's replies thereto was enclosed.
**The complainant's observations**

In his observations, the complainant noted that he regretted
the fact that many of his questions had been answered only now. The complainant
stressed that this had seriously impeded his work as a journalist. He
also listed a number of questions that in his view had still not been
answered.
**Further inquiries**

In reply to the Ombudsman's letter, the Commission submitted
an amended list of its replies to the complainant's questions.
*The complainant's observations*

No written observations on this reply were received from the
complainant. In a telephone conversation with the Ombudsman's office
on 17 November 2003, the complainant stressed that he found it regrettable
that he had had to turn to the Ombudsman in order to obtain the relevant
information. The complainant confirmed, however, that a friendly solution
had been brought about.

THE DECISION
------------

**1 Failure to provide information requested by the complainant**

1.1 The complainant, the Brussels correspondent of the "Stern",
a German weekly, alleged that the Commission had refused to provide information
that he had requested on a number of occasions on the grounds that the
relevant questions concerned ongoing investigations by OLAF, the European
Anti-Fraud Office. In his observations on the Commission's opinion, the
complainant further alleged that some inquiries had not been answered
at all.

1.2 The Commission took the view that it had complied with its Code of Good Administrative
Behaviour and that its Press and Communication Service, which was responsible
for contacts with the media, had been scrupulous in answering within
the deadline stipulated, that is to say within fifteen working days of
the receipt of inquiries. It admitted, however, that no reply had been
given to a message sent by the complainant on 5 April 2002 and apologised
for this omission. The Commission further provided the complainant with
a list of contracts it had entered into with a company called Eurogramme
that the complainant had requested.

1.3 The Ombudsman came to the conclusion that the Commission's refusal to answer
the complainant's questions, in so far as the latter requested the Commission
to provide information, could be an instance of maladministration. On
21 May 2003, he therefore submitted a proposal for a friendly solution
to the Commission according to which the latter should consider providing
the information requested by the complainant, unless there were valid
reasons for not doing so.

1.4 In its reply to this proposal and in its reply to a subsequent request for
further information, the Commission submitted an amended list of its
replies to the complainant's questions.

1.5 In a telephone conversation with the Ombudsman's office on 17 November 2003,
the complainant stressed that he found it regrettable that he had had
to turn to the Ombudsman in order to obtain the relevant information.
The complainant confirmed, however, that a friendly solution had been
brought about.
**2 Conclusion**

Following the Ombudsman's initiative, it appears that a friendly
solution to the complaint has been agreed between the Commission and
the complainant. The Ombudsman therefore closes the case.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

*** ** * ** ***

[(1)](#Footnote1){#(1)} It
should be noted that this question is not identical with the question
of the same date mentioned in the complaint.

[(2)](#Footnote2){#(2)} 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.