The background to the complaint

1. The present complaint concerns the Commission's handling of a request for public access to documents made by a German journalist (hereinafter referred to as 'the complainant').

2. On 4 March 2012, the complainant, pursuant to Regulation 1049/2001[1], made a request for access to the documents held by the Commission in relation to Cases C-578/08 Chakroun[2] and C-16/05 Tum and Dari[3], including the written submissions submitted by third parties which took part in or intervened in the proceedings.

3. On 22 March 2012, the Commission granted access to its written submissions in Case C-16/05.

4. On 19 April 2012, the Commission also granted access to its written submissions in Case C-578/08, but rejected the request in relation to the third-party documents.

5. On 25 May 2012, the complainant made a confirmatory application, asking the Commission to review its decision of 19 April 2012.

6. On 20 June 2012, the Commission's Secretariat-General informed the complainant that it intended to extend the time limit to reply until 10 July 2012.

7. On 13 July 2012, the Commission rejected the complainant's confirmatory application. Its main argument was that third parties' pleadings are not covered by Regulation 1049/2001, considering that Article 15(3) of the Treaty on the Functioning of the European Union (TFEU) specifically provides that the Court of Justice is subject to the provisions of that Article only when it acts in its administrative capacity. The Commission therefore could not grant access to the documents originating from third parties requested by the complainant.

8. On 1 August 2012, the complainant turned to the Ombudsman.

The subject matter of the inquiry

9. In his complaint, the complainant made the following allegations and claim.

Allegations

1. The Commission acted wrongly when it rejected the complainant's request for access to the written submissions of the parties other than the Commission in Cases C-16/05 and C-578/08 and failed to reason sufficiently its rejection of his confirmatory application.

2. The Commission failed to comply with the time limit foreseen in Article 8(1) of Regulation 1049/2001.

3. The Commission failed to comply with its duty to inform the complainant of the legal remedies available to him after partially rejecting his request for access to documents.

Claim

The Commission should grant the complainant access to the documents he requested.

The inquiry

10. On 22 August 2012, the Ombudsman opened an inquiry and invited the Commission to submit an opinion. The Commission sent its opinion to the Ombudsman on 12 November 2012. The opinion was forwarded to the complainant, who sent observations on 4 December 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

11. In his complaint, the complainant observed that the Commission recently pointed out that it lacked the necessary resources properly to deal with access to documents requests and indirectly called for more resources to be assigned to the Commission for it to be able properly to deal with such requests.

12. It does not appear that, by referring to the said statements made by the Commission, the complainant intended to raise a further allegation. In any event, it should be noted that the Ombudsman has recently launched an own-initiative inquiry concerning the Commission's compliance with the time limits foreseen in Regulation 1049/2001. This inquiry would provide her with the possibility to check, if necessary, whether the Commission has sufficient resources for dealing with access to documents requests. The Ombudsman therefore considers that there is no need to take up this aspect in the framework of the present inquiry.

A. Allegation that the Commission acted wrongly when it rejected the complainant's request for access to the written submissions of the parties other than the Commission

Arguments presented to the Ombudsman

13. In his complaint, the complainant alleged that the Commission acted wrongly when it rejected the complainant's request for access to the written submissions of the parties other than the Commission in Cases C-16/05 and C-578/08 and failed to reason sufficiently its rejection of his confirmatory application.

14. In its opinion, the Commission set out its position in the following terms.

15. The rules on public access to documents are not applicable to the files related to the judicial activity of the Court of Justice of the European Union. According to Article 15(3) TFEU, which governs this right after the entry into force of the Lisbon Treaty, "[t]he Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks". Access to the case files of the EU's judicature is, therefore, governed by the Statute of the Court of Justice of the EU, by the Rules of Procedure of the different Courts and by the Instructions to the Registrar of the General Court.

16. Article 20(2) of the Statute of the Court of Justice of the EU foresees "the communication to the parties and to the institutions of the Union whose decisions are in dispute, of applications, statements of case, defences and observations and of replies, if any, as well as of all papers and documents in support or of certified copies of them".

17. Pursuant to Article 16(5) of the Rules of Procedure of the Court of Justice, "[p]ersons having an interest may consult the register at the Registry and may obtain copies or extracts on payment of a charge on a scale fixed by the Court on a proposal from the Registrar" and "[t]he parties to a case may on payment of the appropriate charge also obtain copies of pleadings and authenticated copies of judgments and orders".

18. In the Commission's view, it follows from these provisions that access to the documents which are part of the case files of the Court of Justice is limited to the parties and their representatives. These documents are not publicly accessible for a period of thirty years, after which the Historical Archives Regulation becomes applicable[4].

19. The Commission went on to state that the documents to which the complainant requested to be given access are related to cases handled by the Court of Justice and were submitted by parties other than the Commission. The Commission obtained these documents only in its capacity as a party having submitted observations.

20. In its judgment of 21 September 2010 in Joined Cases C-514/07P, C-528/07P and C-532/08P (API)[5], the Court of Justice interpreted the exception aimed at protecting court proceedings laid down in Article 4(2), second indent of Regulation 1049/2001 only with regard to the submissions of the institutions.

21. However, the question whether or not submissions to the Court from third parties, which the Commission has received in its capacity as a party to the proceedings, fall within the scope of Regulation 1049/2001 is currently pending before the General Court in Case T-188/12[6].

22. In his observations, the complainant considered the Commission's reasoning, according to which Article 15(3) TFEU meant that there was no right of access to documents held by the Commission originating in the context of court proceedings, to be fundamentally flawed. In this respect, he argued that Regulation 1049/2001 does not make any distinction as to the origin of documents held by the Commission. Furthermore, he submitted that the legislator, in Article 5 of Regulation 1049/2001, laid down certain specific rules concerning documents in the Member States' possession. Consequently, the legislator indeed considered that documents could originate from other parties. However, not having provided for specific rules as concerns documents which are held by an institution as a party to judicial proceedings before the Court, the legislator must have intended not to allow for any exceptions in that regard.

The Ombudsman's assessment

23. The Ombudsman is not convinced by the Commission's argument that the documents at stake in the present case are not covered by Regulation 1049/2001. It should be recalled that this issue was already raised in a complaint that was submitted in 2011. In that case, the Ombudsman made a draft recommendation calling on the Commission to reconsider its position[7].

24. The Ombudsman further recalls that, in its reply to that draft recommendation, the Commission pointed out that the issue concerned, namely, whether third parties' submissions to the Court in the possession of the Commission fall within the scope of application of Regulation 1049/2001, was pending before the General Court in Case T-188/12 Breyer v Commission. In this relation, the Commission stressed that it could not accept the Ombudsman's draft recommendation, which was contrary to the position it was defending in those proceedings, until the General Court had taken a stance on the matter. The Ombudsman thereupon closed the relevant inquiry without taking further action.

25. It emerges from the Commission's opinion on the present complaint that the Commission's position has not changed since. It is thus clear that the Commission is only ready to reconsider its position once the General Court has ruled on Case T-188/12.

26. In view of these circumstances, the Ombudsman considers that there are no grounds to pursue her inquiry into the complainant's first allegation.

B. Allegation that the Commission failed to comply with the time limit foreseen in Article 8(1) of Regulation 1049/2001

Arguments presented to the Ombudsman

27. In his complaint, the complainant alleged that the Commission failed to comply with the time limit foreseen in Article 8(1) of Regulation 1049/2001.

28. The Commission did not expressly address this allegation in its opinion.

29. Other than noting that the Commission did not specifically comment on this aspect, the complainant did not address this particular point in his observations either.

The Ombudsman's assessment

30. The Ombudsman notes that, for the purposes of this allegation, two categories of documents need to be distinguished, namely, (i) those which undisputedly fall within the scope of application of Regulation 1049/2001 and (ii) those which, according to the Commission, do not.

31. As regards the first category of documents, the Ombudsman recalls that the Commission disclosed the relevant documents following the complainant's initial application for access. Hence, this category of documents is not covered by the complainant's confirmatory application of 25 May 2012. Given that the present allegation concerns the Commission's handling of his confirmatory application, it therefore does not extend to this category of documents.

32. In relation to the second category of documents, the Ombudsman recalls that the Commission contended that Regulation 1049/2001 does not apply to these documents. It is thus clear that the answer to be given to the first allegation will also determine the answer to be given to the second allegation. Both allegations are therefore inextricably linked.

33. Taking into consideration her assessment as regards the complainant's first allegation (see points 23-26 above), the Ombudsman considers that there are no grounds justifying further inquiries in relation to the complainant's second allegation either.

34. It appears useful to add that, on the assumption that Regulation 1049/2001 and the time limits it foresees did not apply in the present case, the Commission would still have been bound, in order to comply with principles of good administration, to decide on the complainant's case within a reasonable period of time. In the case at hand, it should however be noted that the Commission decided on the complainant's case shortly after the deadline by which it would have had to reply under Regulation 1049/2001 and less than two months after the application had been lodged.

C. Allegation that the Commission failed to comply with its duty to inform the complainant of the legal remedies available to him after partially rejecting his request for access to documents

Arguments presented to the Ombudsman

35. In his complaint, the complainant alleged that the Commission failed to inform him of the legal remedies open to him after its rejection of his confirmatory application.

36. In its opinion, the Commission considered that it responded positively to the complainant's request, as all documents falling within the scope of Regulation 1049/2001 had been fully disclosed. In the Commission's view, this Regulation does not apply to the documents which were not communicated to the complainant. For this reason, the Commission did not mention the means of redress in the reply to the confirmatory application.

37. In his observations, the complainant argued that it is irrelevant whether the Commission is of the opinion that the documents requested fall outside the scope of Regulation 1049/2001 or not. The Commission refused access to parts of the documents in its possession, and hence it was obliged to inform the complainant about the legal remedies available to him.

The Ombudsman's assessment

38. The Ombudsman's notes that her assessment concerning this allegation is intrinsically linked to the question whether the documents requested by the complainant fall within the scope of Regulation 1049/2001. While it is true that Article 8(1) of Regulation 1049/2001 requires institutions to inform applicants, in the event of a total or partial refusal to grant access, of the remedies open to them, in view of her considerations in relation to the complainant's first allegation, there is no need to pursue this issue further.

39. However, the Ombudsman points out that Article 19 of the European Code of Good Administrative Behaviour[8] foresees that a decision which may adversely affect the rights or interest of a private person shall contain an indication of the appeal possibilities available for challenging the decision. Hence, also as a matter of good administration and irrespective of whether Regulation 1049/2001 is applicable, the Commission should have informed the complainant of available remedies.

40. This notwithstanding, the Ombudsman notes that the complainant did not expressly raise the latter issue. More importantly, she recalls that the complainant has made several requests for access to documents over the past years, and repeatedly complained to the Ombudsman in this regard. Given the complainant's awareness of the remedies available to him, she therefore sees no need to pursue this issue in the framework of the present inquiry.

D. Conclusions

On the basis of her inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman finds no grounds justifying further inquiries.

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

 

Emily O'Reilly

Done in Strasbourg on 20 November 2013

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[1] Regulation (EC) 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] Case C-578/08 Chakroun [2010] ECR I-1839.

[3] Case C-16/05 Tum and Dari [2007] ECR I-7415.

[4] Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community, as amended by Regulation 1700/2003, OJ 2003 L 243, p. 1.

[5] Joint Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and others v API and Commission [2010] ECR I-8533.

[6] Case T-188/12 Breyer v Commission, currently pending.

[7] Draft recommendation of the European Ombudsman in relation to complaint 422/2011/AN.

[8] The Code is available on the Ombudsman's website: http://www.ombudsman.europa.eu/resources/code.faces#/page/1.