The background to the complaint

1. The complainant is an association of Spanish horse breeders. In December 2008, it submitted an infringement complaint against Spain to the European Commission. In the complainant's view, the Spanish system of stud-book-keeping for pure-bred Spanish horses infringed EU law, in particular Directive 90/427/EEC[1] and Decision 92/353/EEC[2].

2. The infringement complaint was registered under reference number 2008/4097. On 24 February 2009, pursuant to Article 258 TFEU, the Commission opened infringement proceedings against Spain by sending a letter of formal notice to the Spanish authorities. The letter of formal notice raised two points: on the one hand, it questioned the official recognition of a Spanish association ('association X') for the maintenance of the stud-book of origin of the breed Pura Raza Española ('PRE breed'), which had previously been maintained by the Spanish authorities themselves (the first aspect of the infringement investigation); and, on the other hand, it questioned the restrictions imposed by the relevant Spanish legislation on the recognition of associations for the maintenance of stud-books of that breed (the second aspect of the infringement investigation)[3].

3. On 12 February 2010, following an extensive exchange of correspondence between the Commission, the Spanish authorities and the complainant, the Commission informed the complainant of its intention to close the case. On 3 March 2010, the complainant wrote to the Commission contesting its intention to close the case and provided arguments and evidence in support of its position. On 29 March 2010, the Commission informed the complainant that, in light of the information provided, it no longer intended to close the infringement procedure.

4. On 19 April 2010, pursuant to Regulation 1049/2001[4] the complainant submitted to the Commission a request for access to documents concerning infringement complaint 2008/4097. On 25 May 2010, the Commission informed the complainant that its request was imprecise and did not enable it to ascertain which documents the complainant wished to have access to. Therefore, the Commission asked the complainant to make a more specific request and provided it with information that could enable it to do so.

5. On 13 July 2010, the complainant clarified its request and asked to be given access to (i) the document by which the Commission requested the Spanish authorities to clarify who managed the stud-book of pure-bred Spanish horses, (ii) the answers provided by the Spanish authorities, (iii) the "document concerning the proposal to open infringement proceedings" and (iv) the documents containing the information about the Spanish system of stud-book-keeping which the Commission furnished to the complainant in "the letter sent [to it] on 12 January 2010".

6. On 13 August 2010[5], the Commission replied to the complainant's request and identified four documents which corresponded to the criteria the latter had laid down.

7. As regards the letter of formal notice initiating infringement proceedings 2008/4097 (point (iii)), and the letter sent by the Commission to the Spanish authorities requesting clarifications concerning the infringement complaint (point (i)), the Commission refused disclosure by invoking the exception laid down in the third indent of Article 4(2)[6] of Regulation 1049/2001. The Commission stated that those documents formed part of exchanges between the Commission and Spanish authorities "which could lead to the continuation of an infringement procedure pursuant to Article 258 of the Treaty on the Functioning of the European Union". In support of its position, the Commission quoted the Petrie judgment[7].

8. As regards the Spanish authorities' reply to the Commission's request for clarifications (point (ii)), the Commission said that it had not yet received it. It however added that, once received, the reply would be covered by that same exception.

9. As regards the fourth category of documents requested by the complainant, the Commission stated that they did not exist and clarified that the information that the complainant thought was contained in those documents in fact originated from "oral declarations made by representatives of the Spanish authorities in a meeting with the Commission services held in July 2009." In any event, the Commission stated that, even if such documents did exist, they could not be disclosed for the same reasons as those which apply to the non-disclosure of the other three documents.

10. The Commission informed the complainant that, if it wished to challenge the refusal to grant access to the first three documents, it could contact the Commission Secretariat-General "reiterating its initial request". The Commission provided the contact details of the Secretariat-General and information concerning the deadlines within which the complainant could submit its confirmatory application.

11. On 13 December 2010, the complainant sent a letter to the Commission's Secretariat-General reiterating its request of 13 July 2010.

12. Two days later, the complainant turned to the Ombudsman, stating that it had not received any reply from the Commission concerning its request for access to documents. In a telephone call made on 22 February 2011, the complainant confirmed to the Ombudsman's services that the Commission still had not replied to its confirmatory application of 13 December 2010.

The subject matter of the inquiry

13. The complainant alleged that the Commission unduly refused to grant it access to the requested documents[8].

14. In its original complaint, the complainant focused on the allegation that it did not receive a reply to its initial application. However, in its observations, it did not reiterate this argument, but focused instead on the Commission's refusal to grant it access to the documents in question. The Ombudsman will not deal with the complainant's original argument but with the said refusal.

15. The complainant claimed that the Commission should grant it access to the requested documents.

The inquiry

16. On 11 March 2011, the Ombudsman forwarded the complaint to the Commission and asked it to submit an opinion on the above allegation and claim by 31 May 2011.

17. On 26 May 2011, the Commission requested an extension of the deadline until 30 June 2011.

18. The Commission sent its opinion to the Ombudsman on 11 July 2011. The Ombudsman forwarded the opinion to the complainant, with an invitation to submit observations on it. On 1 August 2011, the complainant submitted its observations.

19. On 17 November 2011, the Ombudsman made a proposal for a friendly solution to the Commission, pursuant to Article 3(5) of the Statute of the European Ombudsman[9].

20. The Commission replied to the Ombudsman's friendly solution proposal on 23 February 2012. The Ombudsman forwarded the Commission's reply to the complainant for observations, which it submitted on 26 April 2012.

21. On 12 July 2012, the complainant informed the Ombudsman that it had not yet received access to any of the documents which the Commission had agreed to release in its reply.

22. On 16 July 2012, the Ombudsman's services contacted the Commission's services by telephone and inquired about the approximate date when the documents would be disclosed. On 25 July 2012, the Commission disclosed part of the requested documents to the complainant.

23. On 2 August 2012, the complainant informed the Ombudsman's services by telephone that it had received the documents disclosed by the Commission.

The Ombudsman's analysis and conclusions

Preliminary remarks

24. In its opinion dated 11 July 2011, the Commission considered that, in accordance with the case-law of the Court of Justice of the EU[10], the complaint was inadmissible for the following reasons.

25. The Commission took the view that the complaint was "directed at an initial reply dated 13 August 2010, and the complainant did not submit a confirmatory application to the Secretariat-General of the Commission" before turning to the Ombudsman. The Commission understood that the complainant's letter dated 13 December 2010 was not a confirmatory application, but a "reminder" of its initial request dated 13 July 2010, because apparently the complainant had not received the Commission's reply of 13 August 2010 refusing access to the requested documents. The Commission's reasoning was based on the complainant's original allegation in its complaint to the Ombudsman that it had not received any reply to its request for access to documents.

26. The Ombudsman does not see any reasons justifying the Commission's understanding of the complainant's letter of 13 December 2010 outlined above, even if the complainant had not received the Commission's reply of 13 August 2010. The Ombudsman has no doubt that the complainant's letter of 13 December 2010 was intended to be a confirmatory application and it was submitted pursuant to the relevant procedural rules.

27. First, if the complainant did not receive the Commission's reply of 13 August 2010 to its initial application for access to documents within 15 working days from registration of its request, it was entitled to consider that its request for access to documents had been tacitly rejected in accordance with Article 7(1) of Regulation 1049/2011. Therefore, pursuant to Article 7(4) of Regulation 1049/2001, the complainant was further entitled to submit a confirmatory application to the Commission's Secretariat-General. It is the Ombudsman's reiterated position that, in cases of tacit rejection of requests for access to documents, the complainants may submit a confirmatory application at any time[11]. The complainant did so on 13 December 2010.

28. Second, as regards their content, nothing prevents confirmatory applications from in fact being "reminders" of initial applications. This is all the more so with regard to cases in which the initial application is tacitly rejected, and therefore applicants have no possibility of reacting to the grounds for rejection, since the institution concerned has not submitted any. The fact that the content of the complainant's letters of 13 July 2010 and of 13 December 2010 was practically identical does not alter the fact that procedurally the two were different: the letter of 13 July 2010 was an initial application and the letter of 13 December 2010 was a confirmatory application. The Ombudsman points out in this respect that the complainant's letter of 13 December 2011 was sent to the Secretariat-General, which is in charge of handling confirmatory applications, whereas its letter of 13 July 2010 was sent to the relevant Directorate-General.

29. Finally, the Ombudsman is unaware of any obligation to use specific forms or formulas when submitting a confirmatory application other than submitting it (i) in writing and (ii) in one of official languages of the Union (by analogy with Article 6 of Regulation 1049/2001).

30. It follows that the Commission's interpretation of the purpose of the complainant's letter dated 13 December 2010 does not alter its nature which, in the eyes of the Ombudsman, is clearly that of a confirmatory application following a tacit refusal.

31. Therefore, the Ombudsman considers that the complaint is admissible.

A. Allegation of undue refusal to grant the complainant access to the requested documents and related claim

Arguments presented to the Ombudsman

32. In its opinion, the Commission first clarified the relevant facts which took place after the complainant wrote to it on 13 December 2010, and which were not mentioned in the complaint. Those facts were as follows.

33. On 4 January 2011, the Commission acknowledged receipt of that letter and forwarded to the complainant the reply to its initial request for access to documents which it had already sent on 13 August 2010. On 12 January 2011, the Commission also informed the complainant that it would not continue investigating the first aspect of infringement investigation 2008/4097, and that it would only continue to deal with the second aspect.

34. On 8 April 2011, the Commission once again forwarded to the complainant its reply of 13 August 2010.

35. On 17 June 2011, the Commission sent a reasoned opinion to the Spanish authorities concerning the second aspect of the infringement investigation and informed the complainant accordingly on 30 June 2011.

36. As regards the substantive aspects of the complainant's request for access to documents, the Commission first explained the content of the documents concerned.

37. The Commission mentioned that document 1[12] was a letter sent by the Commission to the Spanish authorities on 8 July 2010 in the context of infringement complaint 2008/4097. In that letter, the Commission requested further clarifications concerning the legal and factual situation surrounding the management of the Spanish PRE breed. Document 2[13] constituted the reply of the Spanish authorities to that request, which was received on 13 August 2010. Document 3[14] was the letter of formal notice which the Commission sent to Spain on 24 February 2009, and which initiated infringement procedure 2008/4097.

38. The Commission referred to its reply of 13 August 2010 to the complainant's initial request and stated that documents 1 to 3 constituted "exchanges with a Member State in the framework of an on-going investigation". After assessing their content, the Commission considered that their disclosure to the complainant would undermine the purpose of those infringement proceedings, "which is to obtain compliance with EU law by the Spanish authorities as far as possible out of court." The Commission referred in particular to the fact that the use of such documents by the complainant in its direct contacts with the Spanish authorities or against them in court proceedings would undermine that objective. The Commission considered this to be a likely hypothesis, given that the complainant "had previously engaged judicial proceedings against the Spanish State on this matter" and that it pursued "different and more specific objectives" concerning the maintenance of the stud-book of the PRE breed.

39. Moreover, the Commission could not identify any overriding public interest in the disclosure of the requested documents.

40. Therefore, the Commission considered that the exception foreseen in Article 4(2) of Regulation 1049/2001, as interpreted by the Court of Justice in Petrie, was applicable to documents 1 to 3.

41. With regard to the fourth document, the Commission considered that it could not be "deemed to have unduly refused access to a non-existing document".

42. In conclusion, the Commission considered that its refusal to disclose the requested documents was lawful.

43. In its observations, the complainant put forward that, in order to be able to know their position, infringement complainants should be provided with as much information as possible concerning the authorities against which they have complained. Therefore, access to the requested documents is necessary for the purposes of increased transparency of the proceedings and would be in the general interest. In this regard, the complainant stated that its aim is to know who is currently maintaining the stud-book of the PRE breed, and pointed out that this information is of interest to horse breeders.

44. As regards the exception invoked by the Commission, the complainant submitted that it is not well-grounded, given that Article 5 of Directive 90/427 foresees that the list of organisations and associations that maintain a stud-book should be public and available on a website.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

45. As regards documents 1 to 3, the Commission invoked the exception concerning the protection of the purpose of investigations contained in Article 4(2) of Regulation 1049/2001.

46. In paragraph 68 of its judgement in Petrie, the Court of Justice held that "Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure... The preservation of [the] objective [of] an amicable resolution of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgment, justifies refusal of access ... on the ground of protection of the public interest relating to inspections, investigations and court proceedings".

47. The Ombudsman took the preliminary view that this exception is not applicable in the present case because the relevant documents clearly concern the aspect of the infringement investigation that was closed in the meantime.

48. Indeed, the Commission stated in its letter to the complainant of 12 January 2011 that ongoing infringement investigation 2008/4097 no longer concerned the official recognition of association X for the maintenance of the stud-book of origin of the PRE breed.

49. The Commission further described in its opinion the content of documents 1 and 2. The Ombudsman understood that these documents only relate to the management of the PRE breed and do not therefore contain any information concerning other issues which may still be subject to investigation in the context of infringement proceedings 2008/4097. In its opinion, the Commission indeed stated that document 1 contained a request for "clarifications concerning the legal and factual situation in relation to the management of the [PRE] breed", and that document 2 was the reply to that request.

50. The Ombudsman also considered that document 3 necessarily contains information concerning an aspect of the infringement investigation that is now closed, since it is the letter of formal notice in which both aspects initially included in the investigation were mentioned. The parts of that document concerning the said information could thus be disclosed.

51. In light of the above, the Ombudsman took the preliminary view that the Commission wrongly invoked the exception provided for in the third indent of Article 4(2) of Regulation 1049/2001 in order to refuse disclosure of documents 1, 2 and 3. He considered that this could constitute an instance of maladministration. He therefore made the proposal for a friendly solution outlined below, in accordance with Article 3(5) of the Statute of the European Ombudsman.

52. Taking into account the prospect of a positive outcome of his proposal for a friendly solution, the Ombudsman did not consider it useful to take a position on the Commission's explanation that it cannot provide access to the fourth document requested by the complainant because "it does not exist". The information ostensibly contained in that document was, according to the Commission, provided orally to it in the course of a meeting with representatives of Spain. It is thus probable that such information is contained in the minutes of the said meeting. Noting that, in the Ombudsman's view, not drafting minutes of a meeting, or not including all the relevant information in them, amounts to rather unusual administrative behaviour, the Ombudsman, nevertheless, stated that he trusted that this was indeed so and hence that the Commission did not draft any record of its meeting with the Spanish authorities during which the relevant declaration was made.

The friendly solution proposal

53. The Ombudsman proposed that taking into account his findings, the Commission could consider disclosing to the complainant (i) documents 1 and 2 in their entirety and (ii) document 3 in its entirety or, at least, those of its parts that concern aspects which no longer form part of infringement procedure 2008/4097.

The arguments presented to the Ombudsman after his friendly solution proposal

54. In its reply to the Ombudsman's friendly solution proposal, the Commission maintained its view that the complaint was inadmissible. It considered that the complainant's letter dated 13 December 2010 clearly referred to its grievance that the Commission had not replied to its initial application and did not contain a confirmatory request. Even if the letter dated 13 December 2010 were to be considered a confirmatory application, the statutory time limit for the Commission to reply to it had not yet expired on 15 December 2010, the date when the complainant turned to the Ombudsman.

55. Moreover, on 4 January 2011, the complainant received a copy of the Commission's reply to its initial application which the Commission had already sent to it and which also contained indications of the procedural steps to follow in case it wished to submit a confirmatory application. The complainant did not use that right, so the Commission never had the chance to take a final stance on the complainant's request for access to the relevant documents.

56. As regards the substance of the complaint, the Commission stated that the first aspect of infringement complaint 2008/4097 was formally discontinued on 17 June 2011, when the College of Commissioners sent a reasoned opinion to the Spanish authorities in which this aspect was no longer mentioned. The letter sent to the complainant on 12 January 2011 constituted a mere declaration of the Commission services' intention to propose that the first aspect be discontinued. The letter, in addition, provided the complainant with the opportunity to present its arguments concerning that intention. Therefore, at the time of the complainant's request for access to documents, the first aspect of the infringement procedure was still ongoing. Consequently, the Commission disagreed with the Ombudsman's preliminary view that it wrongly relied on the third indent of Article 4(2) of Regulation 1049/2001, which protects the purpose of investigations, in refusing disclosure.

57. The Commission nevertheless accepted the Ombudsman's friendly solution proposal, subject to certain considerations. It stated that all three documents also contained information concerning the second aspect of the infringement procedure, which was still ongoing. Moreover, document 2 originated from the Spanish authorities and the Commission could not disclose it without first consulting them. Therefore, the Commission accepted to disclose those parts of documents 1 and 3 which did not concern the part of infringement procedure 2008/4097 that was still ongoing and to consult the Spanish authorities as regards the disclosure of document 2.

58. In its observations on the Commission's reply to the Ombudsman's friendly solution proposal, the complainant highlighted the delays to which EU institutions subject citizens seeking access to information contained in documents in their possession. By the time the documents are disclosed, the information they contain may even become obsolete. This renders citizens helpless and undermines their trust in the EU institutions.

59. In its letter to the complainant dated 25 July 2012, the Commission stated that, on 21 June 2012, it had closed the second aspect of the infringement procedure 2008/4097. Therefore, the Commission was in a position to disclose documents 1 and 3 in their entirety, and enclosed them with its letter. As regards document 2, the Commission informed the complainant that it had initiated consultations with the Spanish authorities concerning its disclosure, and would keep the complainant duly informed of the outcome.

60. In a telephone conversation between the complainant and the Ombudsman's services held on 2 August 2012, the complainant stated that it was satisfied with the outcome of the Ombudsman's inquiry, provided that the Commission will eventually disclose document 2.

The Ombudsman's assessment after his friendly solution proposal

61. On the one hand, the Ombudsman regrets that he was not able to convince the Commission, through his friendly solution proposal, that (i) the complainant's application of 13 December 2010 could be deemed to constitute a confirmatory application and, therefore, that the complaint to the Ombudsman was admissible, and (ii) the exception which the Commission invoked in order to reject the complainant's request for access to the relevant documents was not applicable.

62. On the other hand, the Ombudsman welcomes the Commission's acceptance of his friendly solution proposal to the greatest extent possible by disclosing the documents that it was able to release without having to consult any third party. Therefore, the Ombudsman considers that a friendly solution has been achieved in this case.

63. The Ombudsman trusts that the Commission will do its utmost to conclude the consultation with the Spanish authorities regarding document 2 within a reasonable time and will inform the complainant of its reasoned decision concerning disclosure as soon as possible thereafter.

B. Conclusions

The Ombudsman closes his inquiry with the following conclusion:

A friendly solution has been achieved in the present complaint.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 16 October 2012

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[1] Council Directive 90/427/EEC of 26 June 1990 on the zootechnical and genealogical conditions governing intra-Community trade in equidae, OJ 1990 L 224, p. 55.

[2] Commission Decision 92/353/EEC of 11 June 1992 laying down the criteria for the approval or recognition of organizations and associations which maintain or establish stud-books for registered equidae, OJ 1992 L 192, p. 63.

[3] The Ombudsman became aware that the letter of formal notice covered both these aspects in the context of his inquiry into complaint 1015/2011/AN, which was submitted by the same complainant against the Commission and concerns the latter's decision to close the first aspect of the infringement investigation.

[4] 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 L145, p. 43.

[5] The existence of this reply was revealed to the Ombudsman by the Commission in its opinion, that is, only after the Ombudsman had opened the inquiry.

[6] "The institutions shall refuse access to a document where disclosure would undermine the protection of: [...] - the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure."

[7] Case T-191/99 Petrie v Commission [2001] ECR II-3677.

[8] The complainant also alleged that the Commission failed properly to handle infringement complaint 2008/4097 against Spain, and claimed that the Commission should continue infringement procedure 2008/4097 in its entirety. Since the complainant's position in this regard was not sufficiently clear for the Ombudsman to decide whether there were grounds to open an inquiry into that allegation and claim, the Ombudsman asked it to provide further clarifications in support of its position. The complainant did so on 21 March 2011. In light of these clarifications, the Ombudsman opened a separate inquiry, 1015/2011/AN, concerning the Commission's handling of infringement procedure 2008/4097.

[9] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[10] Joined cases T-355/04 and T-446/04 Co-Frutta v Commission [2010] ECR II-1, paragraphs 35 and 36; joined cases T-391/03 and T-70/04 Franchet and Byk v Commission [2006] ECR II-2023, paragraph 48: "only the measure adopted by the Secretary-General of the Commission or by the Director of OLAF, which is a decision and which entirely replaces the previous statement of position, is capable of producing legal effects such as to affect the interests of the applicant and, therefore, of being the subject of an action for annulment under Article 230 EC".

[11] For example, in his decision in case 1302/2009/TS, the Ombudsman made the following considerations: "As is clear from Article 7(4) of Regulation 1049/2001, the consequence of not meeting the deadlines set out in Article 7(1) and, where applicable, Article 7(3), is that the applicant becomes entitled to make a confirmatory application under Article 8 of Regulation 1049/2001. It is worth noting, however, that Article 7(4) does not impose any limit as to precisely when, after these time limits have expired, a confirmatory application shall be made in relation to a failure to respond to an initial application."

[12] Ombudsman's numbering.

[13] Ombudsman's numbering.

[14] Ombudsman's numbering.