THE BACKGROUND TO THE COMPLAINT

1. The present complaint was submitted to the European Ombudsman by Internationaler Hilfsfonds e.V., a German non-governmental organization ("NGO") which provides support to refugees and to victims of war and catastrophe.

2. On 14 December 2004, the Ombudsman closed his inquiry into complaint 1874/2003/GG submitted by the same complainant. This case concerned the handling of a request for access to the European Commission's file concerning a contract the Commission had concluded with the complainant ("LIEN contract 97-2011"). The inquiry was closed with a critical remark, after the Ombudsman had unsuccessfully addressed a draft recommendation to the Commission.

3. On 28 and 31 August 2009, the complainant asked the Commission for access to those parts of the above-mentioned file that had not been disclosed yet. The Commission's reply did not satisfy the complainant.

4. On 15 October 2009, the complainant made a confirmatory application for access.

5. On 10 November 2009, the Commission informed the complainant that the period for replying had to be extended by another 15 working days.

6. This additional deadline expired on 1 December 2009. On that day, the Commission informed the complainant that it was regrettably not yet in a position to send its reply. The complainant was informed that it was therefore entitled to bring an action before the General Court or to complain to the Ombudsman. The Commission added, however, that its reply was nearly ready and that it was expected that it could be sent shortly. It apologised for any inconvenience that might arise from this delay.

7. On 17 December 2009, the complainant asked the Commission when its reply could be expected.

8. On 7 January 2010, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

9. The complainant initially put forward the following allegations and the following claim:

Allegations:

1. The Commission failed to reply to the complainant's confirmatory application within the deadlines foreseen by Regulation 1049/2001.
2. The Commission deliberately delayed dealing with the matter.

Claim:

The Commission should without further delay decide on the complainant's confirmatory application.

10. In its opinion, the Commission informed the Ombudsman that the complainant had brought an action before the General Court against its alleged implicit refusal to grant full access to the requested documents (Case T-36/10). The Ombudsman thereupon informed the complainant of the relevant provisions in Article 228 TFEU as well as in Article 1(3) Article 2(7) of the Ombudsman's Statute, which provide that the Ombudsman cannot deal with complaints concerning issues that have been decided upon by courts or that are pending before a court.

11. In its reply, the complainant asked the Ombudsman to limit his inquiry to examining the following allegation:

The Commission deliberately ignored the deadlines for answering its request for access to the relevant file, despite the fact that it had promised to do so.

The complainant stressed that it withdrew all other allegations and claims.

12. The present inquiry thus only concerns the allegation set out in point 11 above.

THE INQUIRY

13. On 27 January 2010, the Ombudsman asked the Commission for an opinion on the allegations and the claim that the complainant had initially put forward. The Commission sent its opinion on 31 March (English original) and 8 April 2010 (German translation).

14. On 13 April 2010, the Ombudsman asked the complainant to comment on the relevance of Case T-36/10 for the present inquiry. The complainant sent its reply on 22 April 2010.

15. On 26 April 2010, the Ombudsman informed the Commission that the complainant had withdrawn its initial allegations and claims and asked it for an opinion on the allegation set out in point 11 above.

16. The Commission sent its further opinion on 30 June (English original) and 7 July 2010 (German translation). This opinion was forwarded to the complainant, who sent its observations on 15 July 2010.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of deliberate disregard for deadlines

Arguments presented to the Ombudsman

17. The complainant alleged that the Commission deliberately ignored the deadlines for answering its request for access to the relevant file, despite the fact that it had promised to do so.

18. In its opinion on this allegation, the Commission pointed out that the complainant's confirmatory application sent on 15 October 2009 was registered on 19 October 2009. The deadline of 15 working days for replying to it expired on 10 November 2009. However, on the same day, pursuant to Article 8(2) of Regulation 1049/2001, the Commission had extended this time-limit by another 15 working days until 1 December 2009. The Commission noted that, on 1 December 2009, it informed the complainant that it was not yet in a position to provide its final reply to the confirmatory application and that it was carrying out a detailed review of all the documents to which access had not yet been granted. In this letter, the Commission further explained that given the large number of documents to be examined, it needed more time to complete its analysis, which required internal consultations between Commission services.

19. The Commission pointed out that it did not deliberately exceed the normal time-limits for handling confirmatory applications for access to documents. It submitted that it grants equal treatment to all applications for access to documents and that it does not discriminate against applicants. The Commission stressed that the only reason for not complying with the normal deadlines had been the administrative work involved by the very detailed analysis of a voluminous file containing a variety of documents, a number of which was duplicated under different sections or attached to other documents.

20. The Commission noted that in its opinion of 31 March 2010 on the original complaint it had informed the Ombudsman that it aimed at providing the complainant with the reply to its confirmatory application in the first half of April 2010. The reply was sent on 29 April 2010. In this reply, full access was given to 43 documents and partial access to 41 documents. The Commission added that access was denied to 11 documents and that the remaining 15 documents did not fall within the scope of the complainant's application.

21. The Commission pointed out that it regretted that it could not handle the confirmatory application within 30 working days as provided by Regulation 1049/2001. It added, however, that it considered that an extended time-limit was justified when an application required a detailed analysis of a large number of documents. The Commission reiterated that the complainant's application had not been delayed deliberately but handled as quickly as possible with due consideration to all interests at stake.

22. In its observations, the complainant submitted that the Commission had acted systematically with a view not only to preventing transparency but also to wearing down the complainant.

23. The complainant submitted that the Commission could very well have dealt with the matter within the time-limits foreseen in Regulation 1049/2001. It stressed that the issue of access to the relevant file had already been raised in the past and that the Commission was thus clearly familiar with it. The complainant further submitted that the Commission's statement that it regretted the delay was not genuine.

24. The complainant added that the Commission's reply of 29 April 2010 was again incomplete and misleading. In addition, the complainant stressed that in this reply the Commission had obliged it again to request access to certain documents to which it had already requested access in 2009.

The Ombudsman's assessment

25. Before dealing with the subject of the present complaint, the Ombudsman considers it appropriate to consider the comments that the complainant made as regards the Commission's letter of 29 April 2010. These comments would appear to concern both the substance, i.e., the contents of the decision thus taken and the way in which the Commission interpreted the complainant's confirmatory application as regards certain documents. As regards the substance, it should be recalled that the issue of the Commission's refusal to grant full access to the requested documents forms the subject-matter of Case T-36/10. This issue thus does not form part of the present inquiry. As regards procedural aspects, the Ombudsman notes that, in its decision of 29 April 2010, the Commission took the view that the confirmatory application had enlarged the scope of the initial request in so far as certain documents were concerned. To that extent, the confirmatory application needed to be considered as an initial request for access in the Commission's view. It should be observed that this interpretation has given rise to a further complaint by the complainant (complaint 1577/2010/GG), in which the Ombudsman has recently opened an inquiry. This issue thus does not need to be addressed in the present inquiry.

26. As regards the subject of the present complaint, the Ombudsman considers that the allegation raised by the complainant should be understood as covering two aspects. First, the complainant alleges that the Commission committed maladministration by failing to deal with its request for access within the deadlines foreseen by Regulation 1049/2001. Second, the complainant alleges that the Commission deliberately ignored these deadlines.

27. As regards the first aspect, the Commission explained that the complainant's confirmatory application was registered on 19 October 2009, that the deadline of 15 working days for replying to it expired on 10 November 2009 and that it had extended this time-limit by another 15 working days until 1 December 2009. The Ombudsman considers that the complainant has not established that the Commission's decision to extend the deadline until 1 December 2009 constituted maladministration.

28. It is good administrative practice to deal with requests for public access within the time-limits foreseen by Regulation 1049/2001. In the present case, the Commission only replied to the confirmatory application on 29 April 2010, that is to say, nearly five months after the extended deadline of 1 December 2009 had expired. This is a very serious delay.

29. None of the arguments that the Commission has put forward in this context are convincing.

30. In its opinion, the Commission pointed out that it regretted that it could not handle the confirmatory application within 30 working days as provided by Regulation 1049/2001. It added, however, that it considered that an extended time-limit was justified when an application required a detailed analysis of a large number of documents. This would seem to suggest that the Commission assumes that the deadlines set out in Regulation 1049/2001 do not need to be respected in cases concerning access to a large number of documents. The Ombudsman is unable to accept any such suggestion. The deadlines foreseen in Regulation 1049/2001 are clearly obligatory. What is more, Article 8(2) of Regulation 1049/2001 explicitly provides that in exceptional cases, "for example in the event of an application relating ... to a very large number of documents", the deadline for replying to a confirmatory application can be extended by another 15 working days. Regulation 1049/2001 itself thus makes it clear that only a limited extension of time is available in situations such as the one to which the Commission refers.

31. The Commission also invoked the administrative work involved by the very detailed analysis of a voluminous file and the need to proceed to internal consultations in order to justify the time it had taken to reply to the complainant's confirmatory application. However, and as the complainant correctly observed, the complainant had already asked for access to the relevant file in the past. The Commission should therefore have been able, at least to some extent, to base itself on the preparatory work that it had done when dealing with this earlier request for access. In these circumstances, the Ombudsman takes the view that the Commission has not provided a credible explanation as to why dealing with the confirmatory application in the present case was not possible within the deadline of 30 working days permitted by Regulation 1049/2001, but required nearly five further months.

32. In the Ombudsman's view, the fact that this further delay was excessive is also confirmed by the contents of the Commission's letter of 1 December 2009 informing the complainant that there would be some delay. In this letter, the Commission pointed out that its reply was nearly ready and that it was expected that it could be sent shortly. The Ombudsman notes that the Commission has refrained from addressing this statement in its opinion, even though the wording of the allegation on which it was asked to comment clearly alluded to it.

33. In view of the above, the Ombudsman arrives at the conclusion that the Commission incurred a serious delay in answering the complainant's confirmatory application without being able to put forward any convincing arguments to justify the time it had taken. This constitutes an instance of maladministration.

34. The Ombudsman notes that, in its letter of 29 April 2010, the Commission apologised for the delay that had occurred. In the Ombudsman's view, presenting such an apology to a citizen is normally a sufficient reaction in cases where delays have occurred in the past in dealing with requests for access to documents. In such cases, there are thus normally no grounds for further action on the Ombudsman's part. The Ombudsman notes, however, that the Commission's opinion in the present case does not contain any apology but merely states that the Commission regrets the delay. What is more, this statement is immediately followed by the assertion that the complainant's confirmatory application was handled as quickly as possible with due consideration to all interests at stake. In view of these statements, the Ombudsman considers that the apology contained in the letter of 29 April 2010 is not sufficient to remedy the maladministration that occurred in this case. A critical remark will therefore be made in this context below.

35. As regard the second aspect of the allegation put forward by the complainant, the Ombudsman notes that the Commission denied that it deliberately exceeded the normal time-limits for handling confirmatory applications for access to documents.

36. The Ombudsman understands that the excessive delay that has occurred in the present case has led the complainant to presume that the Commission acted deliberately. However, and whereas this delay clearly constitutes maladministration, the complainant has not produced any concrete evidence to show that the Commission acted in bad faith. No maladministration can therefore be found as regards this aspect of the case.

B. Conclusions

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

It is good administrative practice to deal with requests for public access within the time-limits foreseen by Regulation 1049/2001. In the present case, the Commission only replied to the complainant's confirmatory application on 29 April 2010, that is to say, nearly five months after the extended deadline of 1 December 2009 had expired, without being able to put forward any convincing arguments to justify the time it had taken. This constitutes an instance of maladministration.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 19 August 2010