Strasbourg, 26 April 2007

Dear Mr V.,

On 24 September 2006, you submitted a complaint to the European Ombudsman against the European Anti-Fraud Office ("OLAF") concerning the latter's failure to answer your letters of 2 August 2006 and 6 September 2006.

On 29 November 2006, I forwarded your complaint to OLAF and asked it to submit an opinion.

OLAF sent its opinion on 20 December 2006, and supplemented it by letter of 13 February 2007.

I forwarded the opinion, as well as its supplement, to you with invitations to make observations. You sent your observations on 10 April 2007.

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

THE COMPLAINT

The present complaint relates to the complainant's previous complaint against the European Agency for Reconstruction ("EAR") and a private company. This earlier complaint concerned an aid project in the Former Yugoslav Republic of Macedonia assigned to that company (the "contractor"). The contractor subcontracted the complainant, but later on excluded him from the project. The complainant requested EAR to protect him against what he considered to be the contractor's illegal action. Given that the complainant found EAR's reaction to his request unsatisfactory and considered that EAR had been bribed by the contractor, he brought the matter to the attention of OLAF.

By letter of 2 June 2006, OLAF informed the complainant that "OLAF's investigation has now been completed. Based on the findings, OLAF has recommended that no further action be taken."

In his letter of 2 August 2006 to OLAF, the complainant pointed out that, in its above letter of 2 June 2006, OLAF failed to inform him of the conclusions of its investigation, and requested to be informed of those conclusions.

Given that the complainant received no answer from OLAF, he wrote to it again on 6 September 2006. He repeated his request to receive the conclusions of OLAF's investigation.

OLAF did not answer the complainant's letter of 6 September 2006 either. Therefore, on 23 September 2006, the complainant submitted a complaint to the European Ombudsman. He alleged that OLAF failed to answer his letters of 2 August 2006 and 6 September 2006, and claimed that OLAF should answer those letters.

THE INQUIRY

The opinion of OLAF

In its opinion of 20 December 2006, OLAF explained that it did not answer the complainant's letters due to a secretarial error, and apologised for this failure to reply. Also, OLAF stated that it had been preparing an answer which would be sent directly to the complainant and a copy of which would be provided to the Ombudsman.

By letter of 13 February 2007, OLAF supplemented its opinion and informed the Ombudsman that it had answered the complainant's letters, and provided a copy of its answer to the complainant dated 5 February 2007.

In its answer to the complainant, OLAF apologised for the fact that, due to an administrative mistake, it did not provide the complainant with a formal answer to his letters although it had continued communicating with him on a regular basis.

In its answer to the complainant, OLAF went on to say that it interprets his requests, contained in his above letters, as a request for the Final Case Report (the "Report"). A copy of the Report was attached to OLAF's answer to the complainant.

At the same time, OLAF informed the complainant that parts of the Report are covered by two of the exceptions under Article 4 of Regulation 1049/2001(1). More precisely, OLAF explained that, in order to protect the privacy and integrity of the individual concerned in accordance with the Community legislation regarding the protection of personal data, it had excluded from the Report all information referring, directly or indirectly, to any identified or identifiable individual whose interests might be at stake (Article 4(1)(b) of Regulation 1049/2001)(2). OLAF also explained that, in order to protect commercial interests of a natural or legal person, it had excluded from the Report all information disclosure of which could undermine the commercial interests of a legal entity mentioned in the Report (Article 4(2), first indent, of Regulation 1049/2001)(3).

Finally, OLAF informed the complainant of his right to make a confirmatory application, as well as of the modalities of making such an application.

The complainant's observations

In his observations, the complainant took the view, in substance, that OLAF's investigation did not seek to determine whether or not he had suffered any damage, but only investigated whether damage had been suffered by the European Communities.

THE DECISION

1 Preliminary remark

With respect to the complainant's observations according to which OLAF only investigated whether the European Communities had suffered any damage, the Ombudsman recalls that the present inquiry concerned exclusively the complainant's allegation of failure by OLAF to answer his letters. However, the complainant is free to submit a new complaint to the Ombudsman in this regard, if he so wishes.

2 Alleged failure to answer the complainant's letters

2.1 The complainant alleged that OLAF failed to answer his letters of 2 August 2006 and 6 September 2006, and claimed that OLAF should answer those letters.

2.2 OLAF acknowledged that, due to a secretarial error, it failed to answer the complainant's letters, and apologised for this failure. At a later stage of the present inquiry, OLAF informed the Ombudsman that, by letter of 5 February 2007, a copy of which it provided the Ombudsman with, it had answered the complainant's letters.

2.3 The Ombudsman welcomes OLAF's apologies for not having answered the complainant's letters, which were contained both in its opinion of 20 December 2006 and in its answer of 5 February 2007 to the complainant. In addition, the Ombudsman notes that, on 5 February 2007, OLAF sent an answer to the complainant and provided the Ombudsman with a copy thereof.

3 Conclusion

On the basis of his inquiries into this complaint, the Ombudsman concludes that, by presenting its apologies to the complainant and by providing its answer to the complainant's letters, OLAF has taken steps to settle the matter. The Ombudsman therefore closes the case.

The Director-General of OLAF will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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

(2) "The institutions shall refuse access to a document where disclosure would undermine the protection of (…) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data."

(3) "The institutions shall refuse access to a document where disclosure would undermine the protection of (…) commercial interests of a natural or legal person (…)"