THE BACKGROUND TO THE COMPLAINT

1. The complainant is an Austrian architect. In September 2000, he complained to the Commission, alleging that Austria infringed a European directive on the award of public service contracts in a number of design contests for architects. In one of these cases, which concerned a contest for the transformation of a building complex in the municipality of Köflach ('the Stadtzentrum Köflach case'), the Commission issued a letter of formal notice to Austria, but subsequently concluded that Community law did not apply. However, following further correspondence with the complainant, the Commission re-opened the case and finally found that Community law did apply and had indeed been infringed. Nevertheless, the Commission decided not to take any further steps.

2. In a complaint to the Ombudsman lodged in September 2005 (complaint 3570/2005/WP), the complainant alleged, among other things, that the Commission decision to abandon the procedure was arbitrary and that it was biased in favour of the Austrian authorities. Following a thorough inquiry, which included an inspection of the Commission's file, the Ombudsman closed the case with a finding of no maladministration on 22 January 2008.

3. In his observations on the Commission's opinion in the above case, the complainant made the additional allegation that he was not given proper access to the Commission's case file pursuant to Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents[1] ('Regulation 1049/2001'). The Ombudsman decided not to take up this issue in his inquiry concerning complaint 3570/2005/WP. However, he informed the complainant that he could submit a new complaint in relation to this point, if he so wished.

THE SUBJECT MATTER OF THE INQUIRY

4. On 7 April 2008, the complainant submitted the present complaint to the Ombudsman (complaint 1059/2008/WP). In summary, he made the following allegations:

(1) The Commission failed properly to handle his applications for access to the documents in the Stadtzentrum Köflach case file.

In support of this allegation, the complainant argued that (i) several requests had been necessary before the Commission made certain documents available, (ii) certain documents he received were not complete in that, for example, enclosures were missing, (iii) the involvement of three different Commission services in the handling of his requests overly complicated matters and (iv) the Commission infringed the relevant deadlines laid down in Regulation 1049/2001.

(2) The Commission gave evasive and unclear replies to specific questions.

The complainant claimed that the Commission should grant him full access to the Stadtzentrum Köflach case file.

5. The Ombudsman opened an inquiry into the complainant's first allegation and claim. He rejected the second allegation as inadmissible because it related to issues that the complainant had not brought to the Commission's attention before turning to the Ombudsman, which meant that he had not made the appropriate prior administrative approaches provided for under Article 2(4) of the Ombudsman's Statute.

6. For the sake of clarity, the Ombudsman considers it useful to point out that the present inquiry concerns only the Commission's handling of the complainant's requests for access to documents in the Stadtzentrum Köflach case. It does not deal with the Commission's handling of the Stadtzentrum Köflach infringement procedure, which was examined in the course of the Ombudsman's inquiry into complaint 3570/2005/WP.

THE INQUIRY

7. On 29 May 2008, the Ombudsman asked the Commission for an opinion on the complainant's first allegation and claim. The Commission's opinion was forwarded to the complainant with an invitation to make observations.

8. By the relevant deadline of 31 December 2008, no observations had been received from the complainant. However, on 12 January 2009, the complainant sent the Commission and the Ombudsman two letters, the first of which related to the Stadtzentrum Köflach case and was registered as a separate complaint (complaint 166/2009/WP)[2]. In the second letter, he stated that he wrote to the Commission's Secretariat-General on 27 June 2008, concerning a document that was disclosed to him in its entirety, even though the Commission indicated that parts thereof had been blanked out. According to the complainant, the Commission ignored the question he raised concerning this issue and instead sent him a version of the document in which the relevant parts were blanked out. The complainant demanded that the Commission should inform him of the consequences of its error and name the responsible official. He indicated that he would otherwise turn to the Austrian authorities. Finally, in addition to the German version of the Commission's opinion that he had already received, the complainant asked the Ombudsman to provide him with a copy of the English version as well.

9. On 2 February 2009, the Ombudsman transmitted a copy of the English version of the opinion to the complainant. Subsequently, on 20 March 2009, the Ombudsman repeated his invitation to the complainant to make observations, if he so wished.

10. On 20 April 2009, the complainant answered that, in so far as his observations on the present complaint were concerned, the two letters he sent to the Commission on 1 and 2 March 2009, should be taken into consideration. The Ombudsman received copies of these letters.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

11. The Ombudsman notes that, in his letter dated 12 January 2009, the complainant raised a new issue, namely that the Commission infringed data protection rules by sending him a copy of a document without blanking out what it considered to be the confidential parts of that document. The complainant took the view that the Commission refrained from answering the questions he put to it concerning this issue. The complainant asked the Commission to explain the consequences of the alleged infringement of data protection rules and to name the official responsible for this infringement.

12. In his letter to the Commission dated 1 March 2009, the complainant reiterated his view that the Commission had breached data protection rules. The complainant acknowledged that the Commission apologised for disclosing more information than it ought to have done and that it asked him to discard the earlier version of the document. The complainant, however, insisted that the Commission should inform him of the consequences of its mistake and provide the name of the responsible official.

13. The Ombudsman notes that it emerges from the complainant's submissions that the Commission accepted that it made a mistake regarding the disclosure of the said document to the complainant. It emerges further that the Commission apologised for this mistake. In order to be able to decide whether it might, nevertheless, be appropriate and necessary to examine the complainant's grievances concerning this disclosure, the Ombudsman would need to be provided with all the information that is relevant in this context, notably copies of the relevant letters addressed to the complainant by the Commission. The Ombudsman notes, however, that the complainant has not made this information available to him. Moreover, it is not beyond doubt whether the complainant wishes the Ombudsman to investigate this aspect of the case. It should be pointed out that, in his letter dated 12 January 2009, the complainant informed the Commission that, if it failed to answer his questions, he would turn to the Austrian authorities. Finally, regard should be had to the fact that the new issue raised by the complainant concerns an alleged breach of data protection and that in this regard the complainant can, therefore, also turn to the European Data Protection Supervisor. In view of the above circumstances, and also in light of his conclusions concerning the original complaint, the Ombudsman takes the view that there is no need for him to deal with the new issue raised by the complainant within the framework of the present inquiry.

14. In his letter of 2 March 2009, to which he also referred in his observations, the complainant asked the Commission to find that the award procedure concerning the Stadtzentrum Köflach was not correctly carried out. This letter thus concerns the subject-matter of complaints 3750/2005/WP and 166/2009, and not that of the present case.

15. In view of the above, the Ombudsman cannot but conclude that the complainant chose not to submit any observations on the Commission's opinion on his present complaint, despite having twice been invited to do so.

A. Allegation that the Commission failed properly to handle the complainant's applications for access to documents and his claim

Arguments presented to the Ombudsman

16. The complainant based his allegation that the Commission failed properly to handle his application for access to documents on four considerations. He argued that (i) he had to contact the Commission several times before certain documents were made available; (ii) certain documents he received were not complete; (iii) the involvement of three different Commission services in the handling of his applications overly complicated matters; and (iv) the Commission infringed the deadlines laid down in Regulation 1049/2001. The complainant claimed that the Commission should grant him full access to the Stadtzentrum Köflach case file.

17. In its opinion, the Commission explained that the complainant made three requests for access to documents. The first dated back to 2003, while the second and the third were filed in 2007. It submitted the following factual background concerning the handling of these requests.

18. The complainant's first request for access concerned the Commission's correspondence with the Austrian authorities in the Stadtzentrum Köflach case. The Commission's Directorate-General Internal Market and Services ('DG MARKT') rejected the initial application on the basis of the exception set out in Article 4(2), third indent of Regulation 1049/2001, which concerns the protection of the purpose of inspections, investigations and audits. However, following a confirmatory application to the Commission's Secretariat-General, the complainant was granted access to two documents.

19. The complainant's second request for access, which was submitted on 18 August 2007, again concerned the Commission's written exchanges with the Austrian authorities. On 12 September 2007, DG MARKT acknowledged receipt of the request and informed the complainant that it had, on that same day, initiated a consultation of the Austrian authorities. On 13 November 2007, DG MARKT granted full access to eleven documents and partial access to four documents. On 3 December 2007, the complainant submitted a confirmatory application for full access to all documents. This application was registered on 12 December 2007.

On 14 January 2008, the Secretariat-General informed the complainant that it had proven necessary to extend the deadline for handling his request by 15 working days. Subsequently, by letter of 4 February 2008, the Secretariat-General informed the complainant that, as a result of the European Court of Justice's judgment in Case C-64/05 P[3], it had become necessary to re-consult the Austrian authorities on the disclosure of the documents. The Commission added that it would endeavour to provide him with a final decision as soon as possible.

On 12 March 2008, the Secretariat-General made seven documents available to the complainant. It added that it was continuing the consultation with the Austrian authorities concerning the remaining seven documents. On 16 May 2008, the Commission granted partial access to one of the remaining documents. The Commission further informed the complainant that no access could be given to the six remaining documents, given that (as the Austrian authorities argued) these documents contained sensitive business information, such as cost calculations and/or specific contractual agreements,[4] and that, as a result, their disclosure would not be in conformity with the exception concerning the protection of commercial interests set out in Article 4(2), first indent of Regulation 1049/2001. The Commission offered the complainant its excuses for any inconvenience this delay might have caused[5].

20. The complainant's third request for access, which was submitted on 3 December 2007, concerned five documents. This initial request was sent to the Secretariat-General. On 4 February 2008, the Secretariat-General informed the complainant that his request had been forwarded to DG MARKT.

On 11 March 2008, DG MARKT granted access to two documents. However, it refused disclosure of the remaining three documents, namely, (1) DG MARKT's draft reply to the complainant dated 1 July 2003; (2) a note dated 8 February 2002 from DG MARKT to the Commission's Legal Service, asking for approval of the draft letter of formal notice in the Stadtzentrum Köflach case; and (3) the Legal Service's reply of 15 February 2002, to DG MARKT. Access to the documents mentioned under (1) and (2) was refused on the basis of the exception concerning the protection of the internal decision-making process set out in Article 4(3), second indent of Regulation 1049/2001; access to the document listed under (3) was refused on the basis of the exception concerning the protection of legal advice set out in Article 4(2), second indent of Regulation 1049/2001.

The complainant made a confirmatory application to the Secretariat-General on 7 April 2008. This application was registered on 18 April 2008. On 16 June 2008, the Secretariat-General granted access to the document mentioned above under (1) but confirmed the refusal to grant access to documents (2) and (3). The Secretariat-General stressed, in this context, that the complainant had received the final version of the formal notice.

21. As regards the contents of the complaint, the Commission made the following comments:

22. With regard to the first aspect of the complaint, namely, that several requests had been necessary before the Commission made certain documents available, the Commission noted that the complainant's requests concerned different documents. As to substance, the Commission argued that the fact that the complainant was granted access to some documents following confirmatory applications merely proved that the Community legislator was correct in providing for a two-step procedure.

23. As regards the second aspect, the Commission explained that its assessment as to whether or not to grant access to documents is based on Regulation 1049/2001. The Commission stressed that, as a consequence, it granted partial access to the documents, in accordance with Article 4(6) of the Regulation, wherever it was possible to do so, if an entire document could not be disclosed.

24. As regards the third aspect, the Commission pointed out that decisions on initial requests for access are taken by its Directors-General and that the Secretary-General deals with confirmatory applications for access. The Commission highlighted the fact that the Secretary-General is part of the Secretariat-General and not a distinct service. It further noted that the complainant was contacted by the Transparency Unit of the Secretariat-General in the context of the preparation of the decisions of the Secretary-General on his confirmatory applications. In addition, and as regards the alleged "chaos" in handling his requests, the Commission pointed out that the problem identified by the complainant flowed from the fact that, in a letter dated 3 December 2007, he simultaneously submitted a confirmatory application and a new request for access to documents.

25. As regards the fourth aspect, the Commission argued that it informed the complainant, in a letter dated 4 February 2008, that it was not possible to reply to the confirmatory application concerning his second request for access within the deadline set by Regulation 1049/2001. The Commission stressed that it further informed him that this was due to exceptional circumstances following the Court's judgment in Case C-64/05 P. While expressing its regrets for the delay, the Commission took the view that it was beyond its control and responsibility.

26. The Commission concluded by stating that, in its view, the complainant's allegations were unfounded.

The Ombudsman's assessment

27. At the outset, the Ombudsman notes that, in its opinion, the Commission explained that the complainant's first request for access to documents was made in 2003, whereas the other two requests were made in 2007. Article 2(4) of the Ombudsman's Statute provides that complaints to the Ombudsman have to be brought within two years of the time a complainant obtains knowledge of the facts on which the complaint is to be based. It is thus clear that the Ombudsman cannot examine the Commission's handling of the first request for access, given that the present complaint was lodged only in 2008. In any event, the Ombudsman notes that the complainant's first request for access to documents appears to concern the same documents as his second request, the handling of which the Ombudsman can be examine.

28. The Ombudsman notes that, by his second request for access to documents, the complainant asked for the disclosure of the Commission's entire correspondence with the Austrian authorities concerning the Stadtzentrum Köflach case. In his confirmatory application for access concerning these documents, the complainant also asked for access to five further documents which were not covered by the second request. In view of these circumstances, the Ombudsman takes the view that the Commission acted correctly by distinguishing between the documents that were covered by the second request for access, and those which were not, and by considering the complainant's request for access to the latter as a separate (third) request for access, which needed to be dealt with by the service in charge, that is, DG MARKT.

29. The Ombudsman further considers it appropriate to point out that Regulation 1049/2001 lays down a two-stage procedure for handling requests for access to documents. The fact that more than one step may be necessary to obtain access to a document is thus foreseen by the system underlying Regulation 1049/2001. It is, furthermore, clear that the complainant's applications were effectively dealt with by only two of the Commission's services, namely, DG MARKT and the Secretariat-General. The fact that the complainant received a letter dated 4 February 2008, from the Transparency Unit of the Secretariat-General, a unit within the Secretariat-General, and the fact that the decisions on his confirmatory applications were signed by the Secretary-General, who is part of the Secretariat-General, clearly do not alter this fact.

30. As regards the complainant's criticism that some of the documents he received were not complete, regard should be had to the fact that this is the logical consequence where only partial access can be granted to a document under Article 4(6) of Regulation 1049/2001. The question whether the Commission acted properly when it refused complete access to the documents concerned forms part of the issues raised by the complainant's claim, which will be examined below.

31. It thus follows that the first, second and third aspects of the complainant's allegation are unfounded.

32. As regards the deadlines for handling the complainant's requests for access to documents, the Ombudsman notes that there clearly were delays in the handling of the complainant's initial applications regarding both the second and the third requests for access to documents. However, given that Article 7(4) of Regulation 1049/2001 authorises a citizen, in the event that an institution fails to observe the deadlines for replying to an initial application, to proceed with a confirmatory application, the Ombudsman will focus on the Commission's handling of the complainant's confirmatory applications.

33. In so far as the handling of the second request for access to documents is concerned, the Ombudsman notes that the complainant's confirmatory application of 3 December 2007 was registered on 12 December 2007. This was also the day on which the Court of Justice rendered its judgment in Case C-64/05 P. The Ombudsman notes that the Commission informed the complainant in a letter dated 14 January 2008, that it had extended the deadline for handling the complainant's confirmatory application by a further 15 working days. Although neither the Commission nor the complainant provided the Ombudsman with a copy of the letter dated 14 January 2008, it seems that it was only on 4 February 2008, that the Commission informed the complainant that, in its view, the Austrian authorities needed to be consulted anew in light of the judgment in Case C-64/05 P.

34. The Ombudsman understands that the Court's judgment may have led the Commission to reconsider its position. The fact remains, however, that the Commission remained obliged to deal with the complainant's confirmatory application within the deadlines foreseen by Regulation 1049/2001.[6] In this context, the Ombudsman notes that, in its letter dated 4 February 2008, the Commission referred to Article 6(3) of Regulation 1049/2001 when it asked the complainant to accept a further delay. This provision enables an institution confronted with a request for access concerning a very long document, or a very large number of documents, to confer informally with an applicant in order to find a fair solution. The Ombudsman considers it obvious that this provision, which concerns initial requests for access, cannot be invoked in order to justify extending the deadline for dealing with a confirmatory application. This is all the more so, since Article 8(2) of Regulation 1049/2001 explicitly foresees a possibility of extending this deadline of 15 working days by another 15 working days in exceptional circumstances. In the present case, the Commission replied to the complainant's confirmatory application only on 16 May 2008, that is, long after the expiry of the additional period of 15 working days.

35. The Ombudsman, therefore, concludes that the Commission failed to handle the confirmatory application concerning the complainant's second request for access within the deadlines foreseen by Regulation 1049/2001. This constitutes an instance of maladministration.

36. The Ombudsman notes that the Commission, in its letter of 16 May 2008, offered the complainant its excuses for any inconvenience this delay might have caused. In the Ombudsman's view, there is normally no need for further steps on his part, if a Community institution sincerely apologises for any delay concerning the handling of a request for access under Regulation 1049/2001. The Ombudsman considers that it is not necessary to decide whether the wording used by the Commission in its letter dated 16 May 2008 constitutes an unambiguous apology. What is clear, in any event, is that an apology only makes sense where the administration admits that it made a mistake. In its opinion on the present complaint, however, the Commission took the view that the delay in handling the complainant's confirmatory request was beyond its control and responsibility. In the absence of a genuine apology from the Commission, the Ombudsman considers it necessary to make a critical remark below.

37. As regards the third request for access to documents, the complainant's confirmatory application was received by the Commission on 18 April 2008. The Commission concluded the confirmatory application stage with the letter dated 16 June 2008. In view of the deadline of 15 working days foreseen in Article 8(1) of Regulation 1049/2001, it is clear that the Commission exceeded the relevant time-limit. In its opinion on the complaint, the Commission did not put forward any arguments to explain or justify this delay. It appears useful to point out in any event that this confirmatory application concerned three internal Commission documents. The decision as to whether or not to give access to these documents did not require any consultations with third parties. In light of the above, the Ombudsman finds that the Commission's failure to deal with this confirmatory application within the relevant deadline constitutes an instance of maladministration. The Ombudsman will, therefore, make a critical remark on this point as well.

38. With his claim, the complainant requested full access to the file on the Stadtzentrum Köflach case. In order to decide on the complainant's claim, the Ombudsman would have to verify the reasoning put forward by the Commission as to why the complainant could not be granted access to the requested documents, or parts of documents. It appears useful to point out that, as regards the complainant's second request for access, the Commission refused to grant full access to six of the documents on the basis of the exception concerning the protection of commercial interests, in accordance with Article 4(2), first indent of Regulation 1049/2001. As regards the third request for access, the Commission refused to disclose two internal documents on the basis of the exceptions concerning the protection of its internal decision-making process and the protection of legal advice, set out in Articles 4(3), second paragraph and 4(2), second indent, respectively.

39. In the Ombudsman's view, the Commission's position does not, at first sight, appear to be unreasonable, at least as regards some of the documents concerned. This applies, in particular, to some or all of the documents provided by the Austrian authorities.

40. The Ombudsman considers that, in these circumstances, it would have been for the complainant to explain why he disagrees with the position adopted by the Commission. Such explanations would have been all the more appropriate in the present case, since the Commission did not adopt its final position concerning the second and third of the complainant's requests for access until 16 May and 16 June 2008, that is, after the present complaint was lodged. However, and notwithstanding two invitations from the Ombudsman, the complainant chose not to submit any observations on the Commission's opinion. What is more, the Ombudsman notes that, on 27 June 2008, that is, after the present inquiry was opened, the complainant sent the Commission a new request for access concerning the documents forming the subject of his second and third requests for access to documents. The complainant has not provided the Ombudsman with any information on developments following this fourth request for access to documents.

41. In light of these circumstances, the Ombudsman considers that, at present, there are no grounds for further inquiries into the complainant's claim. The complainant remains free to renew his complaint regarding the legal basis of the Commission's refusal to grant him access to the documents not yet disclosed, provided that he specifies why he disagrees with the position adopted by the Commission.

C. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:

It is good administrative practice to deal with requests for access to documents under Regulation 1049/2001 within the deadlines set out in this Regulation. The Ombudsman concludes that the Commission failed to handle the complainant's second and third requests for access to documents within the relevant deadlines laid down in Regulation 1049/2001. These failures constitute two instances of maladministration.

No maladministration was found as regards the first, second and third aspect of the complainant's allegation.

There are no grounds to further pursue the inquiry into the complainant's claim.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 22 December 2009

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

[2] The complaint raised issues dealt with substantively in complaint 3570/2005/WP. The Ombudsman, therefore, concluded that there were no grounds to open a further inquiry.

[3] Judgment of the European Court of Justice of 12 December 2007 in Case C-64/05 P Kingdom of Sweden v. Commission [2007] ECR I-11389.

[4] The six remaining documents, to which access was refused, were the following annexes submitted by the Austrian authorities together with their submissions to the Commission in the framework of the infringement proceedings: (1) Sales contract of real estate EZ 1019, (2) building permit for town hall passage with shopping centre on real estate EZ 1019, (3) lease contract for real estate EZ 1019, (4) supplement to the lease contract, (5) list of total investment costs and (6) put option on real estate EZ 1019.

[5] The draft reply to the complainant, prepared in English and enclosed with the Commission's opinion, was worded as follows: "I apologize sincerely for any inconvenience this delay may have caused."

[6] In its judgment in Case C-64/05 P, paragraph 86, the Court held that: "[...] an institution which receives a request for access to a document originating from a Member State and that Member State must, once that request has been notified by the institution to the Member State, commence without delay a genuine dialogue concerning the possible application of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, while paying attention in particular to the need to enable the institution to adopt a position within the time-limits within which Articles 7 and 8 of the regulation require it to decide on the request for access".