(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

The project

Until recently, the city centre of Bratislava (on the north side of the river) was connected with Petrzalka (south side) by only two motorway and two road bridges over the Danube river. Since these bridges could not adequately cope with the traffic flow, it was decided that a fifth bridge – the Košická Bridge – should be built. The project was implemented by Metro Bratislava a.s. (“Metro”), a company set up for this purpose. The shares in Metro are held by the city of Bratislava (66 %) and the Slovak Republic (34 %).

It appears that it was initially foreseen to finance the project with the help of the European Bank for Reconstruction and Development (“EBRD”) and the European Investment Bank (“EIB”). However, the EBRD appears to have withdrawn from the project in February 2001.

The project was financed by a loan of EUR 45 million from the EIB and some EUR 42 million from the budget of the Slovak Republic. The loan agreement between the EIB and Metro was signed on 10 September 2001.

The tender

The project was put out to an international tender. The best bid was to be found through a two-stage tender procedure set out in the “Instructions to Tenderers” and the “Conditions of Contract”. This meant that in a first step, the “Technical Proposal” submitted by each bidder was evaluated. In the second stage, the “Financial Proposal” of each bidder was examined. The Technical Proposal was to include, among other documents, a “Construction Schedule”. The Financial Proposal needed to comprise a “Priced List of Items” and a "Priced Bill of Quantities". The Technical Proposal and the Financial Proposal were to be submitted, in two separate, sealed envelopes, by 4 March 2002.

The complainant, an Austrian building company, took part in a joint venture (“JV Košická Bridge”) with two Slovak companies which submitted a bid. Among the six other bidders was another Austrian-Slovak joint venture, Doprastav, a.s/VA Tech Voest MCE (“Doprastav/MCE”).

The tenders were to be evaluated by a Committee for Evaluation of Tenders (“Evaluation Committee”). This committee was assisted by a Technical Advisory Committee. It appears that most of these technical advisers belonged to a joint venture between two British companies, Maunsell Ltd. and Pontex Ltd., that had already advised Metro (apparently at the request of the EIB) in the preparation of the tender. The Instructions to Tenderers specified inter alia that the Priced List of Items would be checked for arithmetical errors and corrected as appropriate, and that the Evaluation Committee reserved the right to reject a tender or request an explanation where the price quoted was substantially below Metro’s estimate of the cost of the project (which was of course secret).

In the evaluation of the Technical Proposal, the Evaluation Committee was to evaluate the proposed "Construction Method" (for which a maximum of 25 points could be awarded), the "Competency in the Remediation of Contaminated Land" (maximum 5 points) and the "Construction Period" (maximum 5 points). After this first stage, the Committee was to evaluate the Financial Proposal (for which a maximum of 65 points could be awarded). The points obtained for the Technical Proposal were to be added to those awarded for the Financial Proposal, obtaining thus the final score of each tenderer.

The evaluation of the bids

On 18 March 2002, the Technical Proposals were opened and evaluated. JV Košická Bridge obtained the best result with 33,21 points (of which 3,21 points for a construction period of 25,5 months and the maximum result for the two other criteria), followed by Doprastav/MCE with 21,57 points (of which 2,426 points for a construction period of 26 months).

Doprastav/MCE had submitted a “Technical Alternative No. 4” which was not accepted by the Evaluation Committee. At the meeting of the Evaluation Committee of 28 March 2002, a technical adviser requested that the reasons on the basis of which objections had been raised to this proposal should be mentioned, for each member of the committee, in the minutes. The adviser pointed out that the rejection of this proposal would give rise to questions from the EIB and a possible appeal by Doprastav/MCE.

According to the complainant, the documents describing the “Technical Alternative No. 4” of Doprastav/MCE show parallels to documents that had been prepared by Metro but which had not been included in the tender documents.

The Financial Proposals were opened on 2 April 2002. The prices quoted by the different bidders were read out and subsequently evaluated. Doprastav/MCE obtained the maximum number of 65 points for a quote of SK 2 253 368,125. JV Košická Bridge ended in third place with 52,40 points for a price of SK 2 795 303,014.

The overall end result saw Doprastav/MCE in front with a total of 86,57 points, followed by JV Košická Bridge with 85,61 points.

Subsequent corrections of the result

Upon a subsequent check, the Evaluation Committee found that the offer of Doprastav/MCE contained two different prices. Whilst the offer itself mentioned the above-mentioned figure, the Priced Bill of Quantities showed a price of SK 2 299 355,230 (2 % more than the other price). The Evaluation Committee decided that the latter (higher) price was the relevant one. Although Doprastav/MCE had thus still offered the best price and thereby maintained the maximum of 65 points for its Financial Proposal, the resulting narrowing of the gap to the quotes of the other bidders resulted in an increase of the points awarded to these bidders. The result of JV Košická Bridge for its Financial Proposal was consequently increased to 53,4515 points. As a result, JV Košická Bridge now had the best overall score with 86,66 points, followed by Doprastav/MCE which had 86,57 points.

By letter of 9 April 2002, Metro informed the complainant that the Evaluation Committee had found out, after opening the Financial Proposal of JV Košická Bridge, that the construction period was 26 months, and not 25,5 months as indicated in its Technical Proposal. Metro also informed the complainant that there was a slight mistake in the price quoted by JV Košická Bridge which therefore had to be corrected to SK 2 796 143,536. This led to an adjustment of the points awarded, as a result of which JV Košická Bridge achieved only 86,48 points and thus again fell behind Doprastav/MCE.

The complainant’s appeals

In its reply of 10 April 2002, JV Košická Bridge pointed out that the proposed construction period was exactly 780 days which corresponded to approximately 25,5 months as indicated in the Technical Proposal, and that the figure of 26 months given in the Financial Proposal represented a rounding of the correct figure of 25,5 months.

In a further letter to Metro of 15 April 2002, JV Košická Bridge raised a formal objection against the adjustment of its construction period. JV Košická Bridge basically argued that since the Technical Proposal had to be evaluated before and independently of the Financial Proposal, it was not permissible to use information from the Financial Proposal to review the evaluation of the Technical Proposal. A copy of this letter was also sent to the EIB.

On 19 April 2002, JV Košická Bridge lodged a further objection based on two grounds. First, JV Košická Bridge pointed out that a Slovak newspaper had carried a report on 12 April 2002 according to which the contract was to be awarded to Doprastav/MCE. JV Košická Bridge took the view that there had thus been a breach of the confidentiality requirement set out in the tender documents. Second, JV Košická Bridge argued that the offer submitted by Doprastav/MCE should have been excluded on account of dumping. JV Košická Bridge submitted that the offer of Doprastav/MCE was 22 % lower than the average of all the four offers that had been made public on 2 April 2002 and that this offer must be lower than the estimate of costs that had been made by Metro. (In its complaint to the Ombudsman, the complainant submitted that such a calculation did indeed exist and had foreseen costs amounting to SK 2,77 billion.)

The reaction of the Evaluation Committee

At its meeting of 24 April 2002, the Evaluation Committee accepted the complainant’s objection regarding the construction period and decided to base its evaluation on the 25,5 months indicated in the Technical Proposal. The complainant was informed accordingly by letter of 26 April 2002.

At the same meeting, the Evaluation Committee rejected (due to the fact that the number of yes and no votes was equal) the complainant’s objection regarding the alleged dumping by Doprastav/MCE.

As a result, the overall result of JV Košická Bridge was revised to 86,66 points which meant that the JV returned to the top of the list and that the contract was due to be awarded to JV Košická Bridge. This proposal was submitted to the EIB.

The rules governing the action of the EIB in the relevant sector

In its complaint to the Ombudsman, the complainant submitted a copy of the EIB’s “Guide to Procurement” which according to the complainant was applicable in the present case(2). Part 3 of the Guide concerns “Operations outside the European Union”(3).

According to point 3.1. of the Guide, the EIB requires in all cases “that the principles of the EU directives on procurement be followed, with the necessary procedural adaptations”. Point 3.3.1 provides that the procurement procedures for projects of the EIB outside the EU “are consistent with the provisions of the Bank’s Statute, the Treaty establishing the EC, the above-mentioned cooperation and financial protocols [i.e., agreements between the EU and third countries], and the relevant decisions of the European Court of Justice”.

Point 3.4.4 of the Guide provides that the EIB requests promoters “to seek its concurrence for all major decisions regarding procurement” as set out in Annex 2.

According to Annex 2 (“Review by the Bank of procurement decisions for projects located outside the European Union”) of the Guide, the EIB follows the policy of leaving the entire responsibility for the procurement procedures to the promoter. The EIB “limits its intervention to ensuring that its funds are used in the most economic, transparent and efficient way possible. Consequently, the Bank limits its review of the Promoter's procurement decisions to the essential steps.” Annex 2 specifies that the procurement notice and tender documents are to be submitted to the EIB which may review the main clauses and make comments. It is pointed out, however, that this will not constitute an approval of the full content of these documents. Still according to Annex 2, the promoter has to inform the EIB of any written complaint he receives from a tenderer during the tender preparation period. After analysis of the tender, the promoter has to send his evaluation report with a clear recommendation for the award of the contract. “The Bank will provide its ‘non objection’ or appropriate comments.”

The EIB’s intervention

On 6 May 2002, the complainant wrote to the EIB in order to express its concern at the fact that, according to information it had received, the decision of the Evaluation Committee had been challenged. The complainant asked the EIB to ensure a fair tendering procedure.

In a letter to Metro dated 14 May 2002, the EIB expressed its concern at the fact that the Technical Alternative No. 4 submitted by Doprastav/MCE had been rejected contrary to the recommendation of the Technical Advisory Committee. The EIB also expressed the view that by not using the tender price indicated by Doprastav/MCE in its tender, Metro had failed to follow the tender documents. It further noted that the same conclusion applied in so far as the failure to use the construction period indicated by JV Košická Bridge in its Financial Proposal was concerned. The EIB pointed out that for it to be able to participate in the financing of a public works project, public tendering procedures and the evaluation of bids had to follow transparent procedures and the tender award had to be reached in compliance with the tender documents. In view of the above-mentioned points, the EIB noted that it was unable to give its “no objection” to the tender process for the above project. The EIB therefore invited Metro to reconsider these three points.

The further meetings of the Evaluation Committee

In the light of this letter, a further meeting of the Evaluation Committee was convened for 24 May 2002. At this meeting, the committee confirmed (with only one abstention) its position. It appears that the EIB reacted to the outcome of this meeting in a letter sent on 7 June 2002.

It emerges from the documents submitted by the complainant that the Evaluation Committee held another meeting on 14 June 2002 and that the EIB commented on the results of this meeting in a letter of 15 July 2002.

At a further meeting on 12 August 2002, the Evaluation Committee decided to accept all the points made by the EIB. From the minutes of the meeting, it emerges that some of the members of the committee felt that they had been put under pressure. As a result of these discussions, the Evaluation Committee calculated 86,57 points for Doprastav/MCE and 85,41 points for JV Košická Bridge.

In his complaint to the Ombudsman, the complainant pointed out that according to the minutes of the meeting of 12 August 2002, a member of the committee had referred to certain problems that had presented themselves due to the fact that the tendering documents did not cover all eventualities, for example by not including conditions regarding the acceptability of “price reductions”. The complainant submitted that the possibility of a reduction in the price had not been mentioned in the tendering documents and that the above references could thus only mean that at some stage another bidder had in effect offered to lower its price.

The complainant’s further objections and the award of the contract

In a letter of 14 November 2002 addressed to the EIB, the complainant pointed out that it had received information according to which there was no valid building permit for the project submitted by Doprastav/MCE.

In its reply of 27 November 2002, the EIB noted that it was the project promoter (in the present case, Metro) which was responsible for selecting suppliers. The complainant was therefore advised to address its complaint to Metro. The EIB concluded by saying that its role was limited to ensuring that its funds were employed in the most effective manner and by referring the complainant to its “Guide for Procurement”.

According to the complainant, Mr K., the Director-General of Metro and chairman of the Evaluation Committee, refused to sign the contract with Doprastav/MCE. In December 2002, Mr K. was replaced by another person who signed the contract.

The complainant was informed by Metro on 17 December 2002 that its bid had not been successful. On 4 June 2003, the notice of the award of the contract to Doprastav/MCE was published in the Official Journal.

The complainant’s appeal to the EIB and its requests for access to documents

In a letter of 2 July 2003, the complainant, through its lawyers, asked the EIB to examine the grievances that were set out in detail in the same letter(4).

In a further letter sent on 2 July 2003, the complainant asked the EIB for access to all the documents which concerned the relevant tender procedure and for the EIB to review the procedure. The most important documents to which access was requested were described in some more detail.

In a letter dated 16 July 2003, the EIB informed the complainant that its Internal Audit department had commenced an examination and that it would contact the complainant once this examination had been terminated.

On 11 September 2003, the EIB informed the complainant that the Internal Audit department had in the meantime submitted a report on its examination. According to the EIB, this examination (in which an external engineer had co-operated in an advisory capacity) had led to the following conclusions: (1) the EIB had acted in accordance with its mandate and its role in good faith. There was nothing to suggest that its actions had been unfounded; (2) the EIB had complied with the relevant directives on public procurement in accordance with the legal provisions that were applicable; (3) there was nothing to suggest that the EIB had exercised illicit pressure during the evaluation process and (4) the EIB had taken appropriate measures to ensure that the fundamental conditions of the tender procedure were fulfilled. On the basis of these findings, the EIB took the view that there was no indication of any unlawful action on its part and that it had respected all applicable rules as to procedures.

As regards the request for access to documents, the EIB referred to its Rules on Public Access to Documents (OJ 2002 no. C 292, p. 10). According to the EIB, the exceptions laid down in Article 4 (1) (ii), (vi) and (vii), Article 4 (2) and Article 4 (3) prevented disclosure of the documents to which the complainant had requested access. The EIB also pointed out that any further examination of the request for access would make it necessary to consult all the third parties concerned, and that this would be contrary to Article 2 (4) of the Rules (according to which the EIB may refuse to follow up any application “of an excessive or patently disproportionate nature”).

On 24 September 2003, the complainant appealed against the EIB’s refusal to grant access. It also requested access to the report submitted by the Internal Audit department and asked to be given the name of the external expert who had been consulted.

In its reply of 17 October 2003, the EIB informed the complainant that the disclosure of the report submitted by the Internal Audit department was not possible since this report was covered by the exceptions set out in Article 4 (1) (v), (vi) and (vii) and in Article 4 (3) of its Rules on Public Access to Documents. The EIB further pointed out that Article 4 (1) (ii) and Article 4 (1) (vii) and (viii) of the Rules did not allow it to disclose the identity of the external expert. As regards the request for access made on 2 July 2003, the EIB confirmed its position. It clarified, however, that the refusal to disclose the relevant documents was primarily based on the applicability of various exceptions set out in Article 4 of the Rules (that had been mentioned in the letter of 11 September 2003) and that Article 2 (4) of its Rules had been mentioned in addition to Article 4 in view of the substantial number of third parties concerned.

The complaint to the Ombudsman

In its complaint to the Ombudsman, the complainant submitted that the grant of the loan had been based on an irregular tender and on a supervisory and administrative activity of the EIB which had run counter to the EIB’s internal directives and to Community law. According to the complainant, the EIB had misused its formal powers of review in order to influence the substance of the award decision of the promoter and had thus contributed to an award decision which was incompatible with the directives on public procurement. The complainant further submitted that the EIB had failed to use its powers of review properly in matters where it was obliged to do so.

The complainant put forward the following allegations:

(1) Failure to comply with duty of review as regards inadmissible conditions in tender documents

(a) According to point 22 of the Instructions to Tenderers, the employer (that is to say, Metro) reserved the right to terminate the tender procedure at any time prior to the award of the contract without thereby incurring any liability to tenderers. According to the complainant, this ran counter to general principles of public procurement under Community law. The complainant alleged that the EIB had unlawfully failed to take up this point.

(b) According to point 24 of the Instructions to Tenderers, the employer was under no duty to justify his decision as to the award of the contract or to enter into any dispute or correspondence in connection with his decision. The complainant took the view that this provision represented a serious lack of openness and transparency, making it impossible for the bidder to understand and to attack the award decision. According to the complainant, the possibility to challenge an award decision figured among the general principles of public procurement procedures under Community law. The complainant alleged that the EIB had been under a duty to check compliance with these general principles in this respect and to oppose the said clause in the tender documents. According to the complainant, the EIB had infringed its obligations arising from point 3.3.1 of the Guide to Procurement by not doing so.

(2) Failure to comply with duty of review as regards the evaluation of bids

(a) Evaluation of construction period

The complainant submitted that the Evaluation Committee had proceeded properly by basing its evaluation of the Technical Proposal on the construction period indicated therein. According to the complainant, the EIB had, by insisting that the construction period mentioned in the Financial Proposal be used, violated point 3.6.10 of the Guide to Procurement (according to which “the evaluation criteria specified in the tender documents must be applied in whole, without omission or addition, in the evaluation of tenders”) and its duties of review arising from point 3.4.4 and Annex 2 of the Guide.

(b) Failure to consider the fact that the offer of Doprastav/MCE was too low

The complainant submitted that on the basis of recent estimates, the costs of the relevant project were some 43 % higher than the bid submitted by Doprastav/MCE. In the complainant’s view, the EIB ought to have been aware of the fact that this bid had been based on a speculative price which was too low. The complainant alleged that by not intervening, the EIB had not only infringed the general principles of procurement according to point 3.4.4. and 3.3.1 of the Guide to Procurement, but also the cardinal principles of Community law in the area of public procurement as regards fair competition. It further alleged that the EIB had also failed to comply with point 21.3 of the Instructions to Tenderers.

(c) Failure to consider the fact that the bid of Doprastav/MCE comprised different prices

According to point 3.6.11 of the Guide to Procurement, the amount of each bid, including special conditions, rebates and variants if permitted, had to be read out aloud at the opening of tenders. The promoter had to scrutinise offers “for compliance and responsiveness and correct all arithmetical errors. He must ask the Tenderers for any clarification needed to assess the tenders, but no amendment to the substance of the tender or to the price can be accepted after the tender opening.” According to point 20 of the Instructions to Tenderers, the employer had to reject any tender not complying with the tender documents. The complainant submitted that the offer of Doprastav/MCE should have been rejected because of corrections that had not been due to arithmetical errors. According to the complainant, the EIB had strongly urged Metro to base its evaluation not on the price indicated in the Priced Bill of Quantities (as would have been correct), but on the price quoted in the offer itself. The complainant alleged that the EIB had thus failed, in a clearly illegal manner, to ask for the exclusion of Doprastav/MCE in accordance with point 20 of the Instructions to Tenderers.

(3) Failure to take into account additional costs of the offer of Doprastav/MCE

The complainant submitted that the construction method proposed by Doprastav/MCE had caused further costs of at least EUR 7 million which had been borne by Metro but which ought to have been attributed to Doprastav/MCE. The complainant alleged that the EIB had failed to comply with its obligations by failing to raise this point.

(4) Failure to comply with duty of review as regards building permit and technical risks

The complainant submitted that there had been no valid building permit for the project as proposed by Doprastav/MCE and that the construction method applied by this bidder had entailed substantial risks. (The complainant mentioned that these risks were such that it had not been possible to procure insurance coverage for the project.) According to the complainant, the EIB had infringed its obligations arising under point 3.3.1 of the Guide to Procurement by failing to raise these issues.

(5) Granting preference to the construction method proposed by Doprastav/MCE

The complainant submitted that the construction method chosen by Doprastav/MCE had been favoured even before the tender started, given that this method of constructing the bridge had been included in the plan prepared for the tender and that the costs that were caused by this construction method alone had been taken care of by Metro. In this context, the complainant referred to the suspicion expressed by a member of the Evaluation Committee according to which information may have been provided to Doprastav before the tender had been announced. The complainant alleged that by failing to take these obvious facts into account, the EIB had failed to comply with its obligations under Annex 2 of the Guide to Procurement according to which a comprehensive review of the tender documents was to be carried out.

(6) Unclear role of advisers

The complainant submitted that the technical advisers ought to have known that there was no valid building permit for the method proposed by Doprastav/MCE, that the bid of the latter was clearly below the estimate of costs prepared by Metro and that the technical solution proposed by this bidder caused additional costs that were borne by Metro. According to the complainant, the technical advisers had time and again suggested that the decision rejecting the Technical Alternative No. 4 submitted by Doprastav/MCE be revised and that the decision not to take into account the time of completion indicated in the Financial Proposal of JV Košická Bridge be reviewed. The EIB had not only failed to raise objections against these proposals of the technical advisers but had, in fact, adopted their arguments. The complainant thus alleged that the EIB had failed to comply with its obligations by not objecting to the bid of Doprastav/MCE and by perpetuating this illegal state of things with all the means at its disposal.

(7) Unclear fate of the Technical Alternative No. 4 submitted by Doprastav/MCE

The complainant suspected that the technical advisers had been trying to make the Technical Alternative No. 4 submitted by Doprastav/MCE succeed at the behest of third parties (possibly the EIB itself) and that the project that was actually being carried out was based not on the bid of Doprastav/MCE but on the very Technical Alternative No. 4 submitted by Doprastav/MCE.

The complainant concluded that by favouring the bid of Doprastav/MCE, the EIB had crudely violated the principles of equal treatment and of transparency. In its view, the contract would by necessity have had to be awarded to JV Košická Bridge if the EIB had proceeded in accordance with the law.

The complainant further alleged that by rejecting its requests for access to documents of 2 July 2003 and of 24 September 2003, the EIB had acted illegally, both as concerns the fundamental principle of transparency and as regards the specific rules on access. It submitted that the EIB ought to have examined its requests individually for each of the documents concerned, instead of rejecting the applications in a general way. The complainant further explained in detail why it considered that the reasons given by the EIB for its refusal to grant access failed to convince.

The complainant requested the Ombudsman “to obtain all relevant documents”, including (among others) the contract between Metro and Doprastav/MCE and the report of the EIB’s Internal Audit department, from “the parties involved in the tender procedure or the project, in particular the EIB”.

The complainant further asked the Ombudsman to examine why the EBRD had withdrawn from the project.

The complainant requested the Ombudsman to recommend to the EIB to suspend or cancel the loan agreement between itself and Metro and to require Metro to publish the project anew. It also asked the Ombudsman to examine whether there were other possibilities to prevent the further financing of the project by the EIB.

In case that Community funds had been asked for (or should be asked for in the future) in favour of the project, the complainant requested the Ombudsman to prevent the grant of such Community funds, or to ask for the repayment of such funds, or to make recommendations to that effect.

THE INQUIRY

The Ombudsman's approach

The complaint was sent to the EIB for its opinion. However, the Ombudsman added the following clarifications in his letters informing the complainant and the EIB of the opening of his inquiry:

• In its complaint, the complainant asked the Ombudsman, in case Community funds had been asked for (or would be asked for in the future) in favour of the project, to prevent the grant of such Community funds or to ask for the repayment of such funds or to make recommendations to that effect. The Ombudsman recalled that he had no power to issue instructions to the administration. The complainant’s request that the Ombudsman should prevent the grant of certain funds or to ask for the repayment of such funds was thus beyond the Ombudsman’s powers.


• The complainant requested the Ombudsman “to obtain all relevant documents” from the "parties involved in the tender procedure or the project, in particular the EIB”. The Ombudsman recalled that his duty was to ascertain whether there was maladministration in the activity of a Community institution or body. In the case of a complaint concerning a refusal of access to documents, the Ombudsman therefore had to examine whether this refusal was justified. It was not the Ombudsman’s role himself to ask for the production of the relevant documents, unless doing so should prove necessary for the purpose of carrying out his inquiry. The Ombudsman added that if it were to prove necessary for him to inspect the relevant documents, this would not involve a disclosure of the documents to the complainant or any third party.


• The complainant further asked the Ombudsman to examine why the EBRD had withdrawn from the project. The Ombudsman pointed out that he was not in a position to examine the behaviour of an institution or body within the context of a complaint directed at another institution or body. The Ombudsman was thus unable to deal with the request to examine why the EBRD had withdrawn from the project. He pointed out, however, that the complainant was free to address itself to the EBRD in order to ask for the information it was looking for.

The European Investment Bank's opinion

In its opinion, the EIB made the following comments:

As regards the EIB's activity in relation to the loan agreement and tender procedure

Legal proceedings had been opened by the complainant against Metro in Slovak courts in August 2002, a fact that had not been mentioned in the complaint to the Ombudsman. The District Court and the Regional Court (as appellate court) had rejected the complainant's motions in the preliminary procedure by decisions of 23 September 2002 and 11 November 2002(5). The main procedure was still pending and a first hearing on the merits was expected to be scheduled before the end of 2004.

As regards access to documents

On 11 September 2003, the EIB had replied to the request for access made on 2 July 2003, denying access to the documents concerned on the basis of the following exceptions to disclosure listed in the EIB's Rules on Public Access to Documents:

- Article 4 (1):

* (ii) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data;

* (vi) commercial interests of a natural or legal person, including intellectual property;

* (vii) the obligation of professional secrecy where such disclosure would be contrary to professional ethics, rules and practices applicable in the banking and financial sector.

- Article 4 (2): documents drawn up by the EIB for internal use.

- Article 4 (3): documents containing information about third parties.

- Article 2 (4): request of disproportionate nature.

On 24 September 2003, the complainant had complained against this decision and made a further demand for access to the EIB's Internal Audit Investigation Report and for disclosure of the name of the external consultant engineer consulted in the audit.

In its letter of 16 October 2003, the EIB had maintained its position and added Article 4 (1) (v) of the Rules (the purpose of inspections, investigations and audit) to the list of exceptions referred to in its letter of 11 September 2003.

In certain cases and only for a limited number of these documents which were not per se covered by the above-mentioned exceptions regarding Article 4 (1) (v) and (vii), disclosure would only be possible if all third parties involved were to give their assent. However, the EIB considered that the necessary action would entail a considerable administrative burden which was disproportionate to the nature of the request, Article 2 (4) being applicable in view of the considerable number of third parties involved (taking also into consideration that for many of them all the bidders who had taken part in the tendering procedure would have to be contacted and would have to give their explicit consent).

Nonetheless, all the documents were available for inspection by the Ombudsman.

Conclusion

The EIB concluded by saying that no maladministration had occurred and that its services involved in the project had acted with a high degree of transparency, co-operation with the complainant and compliance with its rules and procedures.

The complainant's observations

In its observations, the complainant maintained its complaint and made the following further comments:

The action against Metro pending before Slovak courts was immaterial for the present complaint. With its action, the JV Košická Bridge aimed at a finding that the assessment of the national competition concerning the relevant project was invalid. This action did not touch upon any facts that had been raised in the complaint to the Ombudsman which focussed on the actions and duties of the EIB. Article 195 of the EC Treaty and Article 1 (3) of the Ombudsman's Statute provided that the Ombudsman was unable to deal with complaints where the alleged facts were or had been the subject of legal proceedings. It emerged from the Ombudsman's case-law (see the Annual Report of the Ombudsman for 1996, p. 15) that this was only the case where the legal proceedings involved the same parties and the same facts. However, it was obvious that this was not the case here.

As regards access to documents, reference was made to the arguments already developed in the letters to the EIB requesting access and in the complaint to the Ombudsman. Article 4 (2) of the EIB's Rules allowed a refusal to grant access to internal documents only where these documents related to a matter "where the decision has not been taken" by the EIB. However, at the time when access had been requested in July and September 2003, the decision on the grant of the loan had long been taken. The EIB's reference to the privacy and the integrity of the individual (Article 4 (1) (ii) of the Rules) ignored the fact that the documents exclusively concerned the relevant project. The position adopted by the EIB resulted in the rules on access, which were intended to ensure transparency, being deprived of all meaning.

The EIB had rejected the request for access without addressing the relevant issue document for document. It had also failed to consider the possibility to grant partial access.

The Instructions to Tenderers gave the investor the right to reject an offer that was substantially below the estimated price or to demand explanations. The EIB ought to have examined the price offered by Doprastav/MCE more closely. It had emerged that the actual costs for building the bridge currently amounted to around SKK 4.279 billion, a figure which was more than 100 % above the price quoted by Doprastaff/MCE.

Further inquiries

After careful consideration of the EIB's opinion and the complainant's observations, it appeared that further inquiries were necessary.

Request for further information

On 20 October 2004, the Ombudsman therefore asked the EIB (1) to provide the Ombudsman with a list of the documents to which access had been requested, together with an indication, for each document or category of documents, of the exception(s) laid down in its Rules on Public Access to Documents on the basis of which the EIB believed that no access could be granted to the complainant, and (2) to comment on the complainant's argument that the possibility of partial access should be considered.

The complainant's letter of 17 November 2004

In a further letter of 17 November 2004, the complainant pointed out that it had now been informed that the oral hearing in the proceedings brought by the JV Košická Bridge against Metro would take place on 9 December 2004. According to the complainant, the letter of the Slovak court containing this information was dated 30 July 2004 but had only been delivered on 30 September 2004. The complainant noted that it was remarkable that the EIB, which had sent its observations to the Ombudsman on 30 July 2004, had already that day had knowledge of the decision to hold the oral hearing in December 2004. In the complainant's view, there was a suspicion that the EIB intended to deprive the complainant of its right to obtain legal protection from the Ombudsman. The complainant therefore asked the Ombudsman to take this information into account in his inquiry.

The EIB's reply to the request for further information

In its reply of 25 November 2004, the EIB pointed out that the refusal to disclose the relevant documents was now also based on Article 4 (1) (iii) of the Rules, which allowed it to refuse access to all or part of a document where disclosure would undermine the protection of court proceedings. According to the EIB, this argument had not been used previously since the EIB had not previously been aware of the legal proceedings initiated by the complainant against Metro before the Slovak courts when it had received the first request for access from the complainant.

The EIB submitted the following list of documents together with an indication of the exception(s) laid down in the Rules on the basis of which it believed that no access could be granted to the complainant:

1. Complete construction contract between Metro and Doprastav/MCE, together with all annexes and any additional or subsidiary agreement

Disclosure has been denied on the basis of Articles 4 (1) (vi) and (vii) of the Rules (as the disclosure would undermine the commercial interests of third parties and would be contrary to the Bank's obligation of professional secrecy) and of Article 3 (since the documents were third-party documents).

2. The tender submitted by Doprastav/MCE, including all tender alternatives or variants, including in particular the "fourth tender variant"

Disclosure was excluded by Articles 3 and 4 (1) (vi) and vii) of the Rules (commercial interest of the parties and banking confidentiality).

3. All minutes, together with annexes of the meetings of the national selection board

About ten meetings had been held. The minutes were third-party documents to which the EIB was not a party and for which Article 3 of the Rules was applicable. Moreover, the minutes were subject to confidentiality undertakings as the members of the board had signed a confidentiality agreement. The disclosure of these documents would be contrary to professional ethics, rules and practices applicable in the banking and financial sector (Article 4 (1) (vii) of the Rules). The privacy and integrity of the members of the selection board would be undermined (Article 4 (1) (ii) of the Rules). The authorisation of Metro (ultimately the Slovak Republic and the City of Bratislava), of all other tenderers and of each member of the selection board would be needed for disclosure.

4. All reports on the national selection board's discussions and evaluations that had been transmitted to the EIB, in particular all award reports

A total of 5 reports had been sent to the EIB. The refusal to disclose these documents was justified by the same arguments as those that were set out in point 3.

5. All contracts and agreements between the EIB and the Slovak authorities concerning the financing of the project at issue, in particular the financing agreement of 10 September 2001 between the EIB and Metro, together with all annexes and any subsidiary or additional agreement

The EIB's published policy regarding finance contracts was that it would not release these documents (see section "confidentiality" of the "EIB's transparent information policy" published on the EIB's website). However, the EIB had no objections to the borrower releasing information relating to its loans. As regards other contracts, Article 3 and Article 4 (1) (vi) and (vii) of the Rules (commercial interests of the parties and the EIB's obligation of professional secrecy) were also applicable.

6. All correspondence between the EIB and Metro in connection with the review of the tender procedure, in particular in connection with the evaluation and appraisal of paragraphs (a) to (c) below

The correspondence between the EIB and a third party could not be disclosed unless the third party agreed (Article 3 of the Rules). Moreover, the EIB would have to verify that no confidential information affecting other third parties was included in the correspondence. The correspondence amounted to 12 letters, which, in some cases, contained information related to other tenderers or even enclosed letters from other tenderers.

(a) The "fourth tender variant"
(b) The commercial offer made by Doprastav/MCE

These documents could not be released unless the third parties concerned (Metro and the two companies forming the Doprastav/MCE joint venture) agreed (Article 3 of the Rules). Moreover, disclosure had been denied on the basis of Articles 4 (1) (vi) and (vii) of the Rules as it would undermine the commercial interests of third parties and would be contrary to the EIB's obligation of professional secrecy.

(c) The construction period used in evaluating the technical offer made by JV Košická Bridge

Exception to disclosure on the basis of Article 3 (the third party being Metro) and of Articles 4 (1) (vi) and (vii) of the Rules.

7. The correspondence from the EIB to Metro following the award proposal sent to the EIB, which had proposed JV Košická Bridge as the most advantageous bidder, in particular the letters from the EIB to Metro dated 14 May 2002, 7 June 2002 and 15 July 2002, and the replies to those letters sent by Metro to the EIB

This correspondence could not be disclosed on the basis of the same exceptions as those cited for non-disclosure of correspondence connected to the tender procedure (above points 3 and 6).

8. In particular, the other documents, memoranda etc. available to the EIB relating to all the letters referred to in points 6 and 7

As regards the submission of alternative tenders, Article 3 of the Rules would apply. Article 4 (2) of the Rules would be invoked in relation to internal EIB documents.

9. The EIB's Internal Audit Investigation Report

The refusal to disclose this report was covered by Article 4 (1) (v) of the Rules (the purpose of inspections, investigations and audit).

10. Disclosure of the external consultant engineer consulted during the audit

The non-disclosure of the name of this person was covered by Article 4 (1) (ii), (vii) and (viii) of the Rules, which envisage privacy, banking confidentiality and the legitimate interest of the EIB in organising its internal management, as exceptions to the right of access to documents.

The EIB stressed that in addition to all the above points, the disclosure should be refused, on the whole, in accordance with Article 2 (4) of the Rules in view of the considerable number of documents requested and of the third parties involved who would have to be contacted and who would have to give their explicit consent. The EIB noted that in most of the cases one of the third parties to be contacted would be Metro, i.e. the defendant in the pending court proceedings.

The EIB added that partial access could only be considered for a few documents, for example the EIB's internal documents (points 5 and 8 of the above-mentioned list) but that this task would be particularly hard as the dividing line between confidential and non-confidential information would be extremely difficult to define. According to the EIB, the result of this operation, even if it were to be feasible, would probably lead to the disclosure of insignificant parts of the documents requested.

The complainant's observations

In its observations, the complainant maintained its complaint and made the following further comments:

It was to be feared that the EIB would continue its illegal administrative practice unless the Ombudsman examined the EIB's actions regarding the award of the loan and the checking of the national tender procedure and found that these actions constituted maladministration. The Ombudsman should recommend that the loan agreement between the EIB and Metro be cancelled.

The fact of invoking the exception set out at Article 4 (1) (iii) was inadmissible. The said exception was in any event not applicable in the present case.

Article 3 of the Rules obliged the EIB to consult the third parties concerned with a view to ascertaining whether they agreed with the disclosure. The EIB's failure to do so meant that the refusal to grant access was illegal for this reason alone.

The request for access was not excessive or of a patently disproportionate nature within the meaning of Article 2 (4) of the Rules.

As regards Article 4 (1) (vi) and (vii), the EIB had failed to examine or to explain whether and which commercial interests or professional secrets would be affected.

Article 4 (1) (v) of the Rules was not applicable since the relevant audit had already been completed. The disclosure of the report on this audit could thus not affect this audit.

The EIB's reliance on Article 4 (1) (ii), (vi) and (vii) was not justified, since otherwise the aim and purpose of the Rules (which was to grant the public the widest possible access to documents in the possession of the EIB) would be nullified.

THE DECISION

1 Introductory remarks

1.1 The present complaint concerns the construction of a new bridge – the Košická Bridge – across the Danube in Bratislava, the capital of the Slovak Republic. The project was implemented by Metro Bratislava a.S. (“Metro”), a company set up for this purpose. The shares in Metro are held by the city of Bratislava (66 %) and the Slovak Republic (34 %). The project was financed by a loan of EUR 45 million from the European Investment Bank ("EIB") and some EUR 42 million from the budget of the Slovak Republic. The loan agreement between the EIB and Metro was signed on 10 September 2001. The complainant, an Austrian building company, took part in a joint venture (“JV Košická Bridge”) with two Slovak companies which submitted a bid. Among the six other bidders was another Austrian-Slovak joint venture, Doprastav, a.s/VA Tech Voest MCE (“Doprastav/MCE”).

The examination of the Technical and Financial Proposals submitted by the bidders led to the result that the offer of Doprastav/MCE was the best with a total of 86,57 points, followed by JV Košická Bridge with 85,61 points.

Upon a subsequent check, the Evaluation Committee found that the offer of Doprastav/MCE contained two different prices. The Evaluation Committee decided that the higher of the two prices was the relevant one. As a result, JV Košická Bridge now had the best overall score with 86,66 points, followed by Doprastav/MCE which had 86,57 points.

By letter of 9 April 2002, Metro informed the complainant that the Evaluation Committee had found out, after opening the Financial Proposal of JV Košická Bridge, that the construction period was 26 months, and not 25,5 months as indicated in its Technical Proposal. This led to an adjustment of the points awarded, as a result of which JV Košická Bridge achieved only 86,48 points and thus again fell behind Doprastav/MCE.

The complainant objected to this appraisal. At its meeting of 24 April 2002, the Evaluation Committee accepted the complainant’s objection regarding the construction period and decided to base its evaluation on the 25,5 months indicated in the Technical Proposal. As a result, the overall result of JV Košická Bridge was revised to 86,66 points which meant that it returned to the top of the list and that the contract was due to be awarded to JV Košická Bridge. This proposal was submitted to the EIB.

According to the complainant, this result was subsequently modified due to pressure exerted by the EIB. The contract was in the end awarded to Doprastav/MCE.

1.2 The present complaint is directed (1) at the EIB's alleged actions or omissions in the context of the above-mentioned projects and (2) at the EIB's refusal to grant the complainant access to certain documents in its possession.

1.3 In its complaint, the complainant asked the Ombudsman to prevent the grant of Community funds to the project or to ask for the repayment of such funds. In his letter informing the complainant of the opening of the inquiry, the Ombudsman recalled that he had no power to issue instructions to the administration and that the complainant’s request was thus beyond the Ombudsman’s mandate.

In its complaint, the complainant further requested the Ombudsman “to obtain all relevant documents” from the "parties involved in the tender procedure or the project, in particular the EIB”. The Ombudsman explained to the complainant that his duty was to ascertain whether there was maladministration in the activity of a Community institution or body. In the case of a complaint concerning a refusal of access to documents, the Ombudsman therefore had to examine whether this refusal was justified. The Ombudsman further informed the complainant that it was not the Ombudsman’s role himself to ask for the production of the relevant documents, unless doing so should prove necessary for the purpose of carrying out his inquiry. He added that if it were to prove necessary for him to inspect the relevant documents, this would not involve a disclosure of the documents to the complainant or any third party.

In its complaint, the complainant further asked the Ombudsman to examine why the European Bank for Reconstruction and Development (“EBRD”) had withdrawn from the project. In his letter informing the complainant of the opening of the inquiry, the Ombudsman pointed out that he was not in a position to examine the behaviour of an institution or body within the context of a complaint directed at another institution or body. The Ombudsman was thus unable to deal with the request to examine why the EBRD had withdrawn from the project. He pointed out, however, that the complainant was free to address itself to the EBRD in order to ask for the information it was looking for.

1.4 In its observations on the EIB's reply to the Ombudsman's request for further information, the complainant suggested that the Ombudsman should recommend that the loan agreement between the EIB and Metro be cancelled. In view of his findings regarding the first part of the present complaint (see 2 below), the Ombudsman considers that it is not necessary to deal with this additional suggestion or claim.

2 Alleged maladministration on the part of the EIB as regards the project in Bratislava

2.1 In its complaint to the Ombudsman, the complainant submitted that the grant of the loan had been based on an irregular tender and on a supervisory and administrative activity of the EIB which had run counter to the EIB’s internal directives and to Community law. According to the complainant, the EIB had misused its formal powers of review in order to influence the substance of the award decision of the promoter and had thus contributed to an award decision which was incompatible with the directives on public procurement. The complainant further submitted that the EIB had failed to use its powers of review properly in matters where it was obliged to do so. In order to support its case, the complainant submitted detailed allegations which were divided into the followings headings: (1) Failure to comply with duty of review as regards inadmissible conditions in tender documents, (2) failure to comply with duty of review as regards the evaluation of bids, (3) failure to take into account additional costs of the offer of Doprastav/MCE, (4) failure to comply with duty of review as regards building permit and technical risks, (5) granting preference to the construction method proposed by Doprastav/MCE, (6) unclear role of advisers and (7) unclear fate of the Technical Alternative No. 4 submitted by Doprastav/MCE.

2.2 In its opinion, the EIB refrained from commenting on the substance of these allegations. The EIB pointed out, however, that legal proceedings had been commenced by the complainant against Metro in Slovak courts in August 2002. The District Court and the Regional Court (in its role as appellate court) had rejected the complainant's motions in the preliminary procedure by decisions of 23 September 2002 and 11 November 2002(6). The EIB added that the main procedure was still pending and that a first hearing on the merits was expected to be scheduled before the end of 2004(7).

2.3 In its observations, the complainant submitted that the action against Metro pending before Slovak courts was immaterial for the present complaint. According to the complainant, this action aimed at a finding that the assessment of the national competition concerning the relevant project was invalid. The complainant argued that this action did not touch upon any of the facts that had been raised in the complaint to the Ombudsman which focussed on the actions and duties of the EIB. It added that Article 195 of the EC Treaty and Article 1 (3) of the Ombudsman's Statute provided that the Ombudsman was unable to deal with complaints where the alleged facts were or had been the subject of legal proceedings. However, in the complainant's view, it emerged from the Ombudsman's case-law (see the Annual Report of the Ombudsman for 1996, p. 15) that this was only the case where the legal proceedings involved the same parties and the same facts. The complainant stressed that this was obviously not the case here.

2.4 The Ombudsman considers that the complainant's interpretation of Article 195 of the EC Treaty and of Article 1 (3) of the Ombudsman's Statute is correct. Given that the action brought by the complainant (or the JV Košická Bridge) before Slovak courts is directed at Metro and not at the EIB, the Ombudsman considers that he would not be prevented from examining the complainant's allegations against the latter by any legal obstacle.

2.5 However, regard should be had to the fact that Article 195 of the EC Treaty directs the Ombudsman to conduct inquiries "for which he finds grounds". The Ombudsman notes that the action pending before Slovak courts appears (judging by the information that has been submitted to him) to call into doubt Metro's decision to award the contract to Doprastav/MCE rather than to the JV Košická Bridge. However, the complainant's basic argument in the present case is that this decision taken by Metro was due to the pressure the EIB allegedly exerted on the Evaluation Committee and/or Metro. Should the Slovak courts arrive at the conclusion that the award of the contract to Doprastav/MCE was in conformity with the relevant rules, it would be difficult to see how the complainant's allegations directed at the EIB could succeed. If on the other hand the Slovak courts were to find that Metro's decision on the award of the contract was wrong, any pressure exerted by the EIB on Metro to adopt this decision would be unlikely to be justified. The Ombudsman therefore considers that the decision to be taken by the Slovak courts will thus by necessity to a large extent prejudge the question as to whether or not the EIB has behaved correctly in the present case. It should further be noted that it appears likely that the Slovak courts have possibilities to establish the relevant facts that exceed those that have been given to the Ombudsman. In this context, regard should be had in particular to the fact that the Ombudsman's Statute foresees the possibility of hearing the testimony of Community officials and servants. The Ombudsman would thus be unable to take the testimony of the advisers to whom the complainant referred.

2.6 In these circumstances, the Ombudsman considers that there are no grounds for him to continue his inquiry into the above-mentioned allegations at present. The complainant remains free to renew its complaint on that account after the Slovak courts have definitively decided on the action pending before them, if it should wish to do so.

3 Alleged maladministration as regards access to documents

3.1 On 2 July 2003, the complainant asked the EIB for access to all the documents which concerned the relevant tender procedure and its review by the EIB. The most important documents to which access was requested were described in some more detail. On 11 September 2003, the EIB informed the complainant that the exceptions laid down in Article 4 (1) (ii), (vi) and (vii), Article 4 (2) and Article 4 (3) of its Rules on Public Access to Documents (the "Rules")(8) prevented disclosure of the documents to which the complainant had requested access. The EIB also pointed out that any further examination of the request for access would make it necessary to consult all the third parties concerned, and that this would be contrary to Article 2 (4) of the Rules (according to which the EIB may refuse to follow up any application “of an excessive or patently disproportionate nature”).

On 24 September 2003, the complainant appealed against the EIB’s refusal to grant access. It also requested access to the report that had in the meantime been submitted by the EIB's Internal Audit Department and to be given the name of the external expert who had been consulted regarding this audit. In its reply of 17 October 2003, the EIB informed the complainant that the disclosure of the report submitted by the Internal Audit Department was not possible since this report was covered by the exceptions set out in Article 4 (1) (v), (vi) and (vii) and in Article 4 (3) of its Rules. The EIB further pointed out that Article 4 (1) (ii) and Article 4 (1) (vii) and (viii) of the Rules did not allow it to disclose the identity of the external expert. As regards the request for access made on 2 July 2003, the EIB confirmed its position. It clarified, however, that the refusal to disclose the relevant documents was primarily based on the applicability of various exceptions set out in Article 4 of the Rules (that had been mentioned in the letter of 11 September 2003) and that Article 2 (4) of its Rules had been mentioned in addition to Article 4 in view of the substantial number of third parties concerned.

3.2 In its complaint to the Ombudsman, the complainant alleged that by rejecting its requests for access to documents the EIB had acted illegally, both as concerns the fundamental principle of transparency and as regards the specific rules on access. The complainant submitted that the EIB ought to have examined its requests individually for each of the documents concerned, instead of rejecting the applications in a general way. It further explained in detail why it considered that the reasons given by the EIB for its refusal to grant access failed to convince.

3.3 In its opinion, the EIB took the view that its position had been correct. It added, however, that all the documents concerned were available for inspection by the Ombudsman.

3.4 On 20 October 2004, the Ombudsman asked the EIB (1) to provide him with a list of the documents to which access had been requested, together with an indication, for each document or category of documents, of the exception(s) laid down in its Rules on the basis of which the EIB believed that no access could be granted to the complainant, and (2) to comment on the complainant's argument that the possibility of partial access should be considered.

3.5 In its reply, the EIB pointed out that the refusal to disclose the relevant documents was now also based on Article 4 (1) (iii) of the Rules, which allowed to refuse access to all or part of a document where disclosure would undermine the protection of court proceedings. According to the EIB, this argument had not been used previously since the EIB had not previously been aware of the legal proceedings initiated by the complainant against Metro before the Slovak courts when it had received the first request for access from the complainant. The EIB also submitted a list of the documents concerned together with an indication of the exception(s) laid down in the Rules on the basis of which it believed that no access could be granted to the complainant. This list comprised 10 items, the last of which concerned the disclosure of the name of the external expert. In this list, the EIB referred to the following provisions in order to justify its refusal to grant access to the documents concerned: Article 2 (4), Article 3, Article 4 (1) (ii), (v), (vi) and (vii) and Article 4 (2) of the Rules. As regards the name of the consultant, the EIB invoked Article 4 (1) (ii), (vii) and (viii) of the Rules.

The EIB added that partial access could only be considered for a few documents, for example the EIB's internal documents (points 5 and 8 of the above-mentioned list) but that this task would be particularly hard as the dividing line between confidential and non-confidential information would be extremely difficult to define. According to the EIB, the result of this operation, even if it were to be feasible, would probably lead to the disclosure of insignificant parts of the documents requested.

3.6 In its observations on this reply, the complainant submitted that the fact of invoking the exception set out at Article 4 (1) (iii) was inadmissible and that this exception was in any event not applicable in the present case. The complainant further argued that Article 3 of the Rules obliged the EIB to consult the third parties concerned with a view to ascertaining whether they agreed with the disclosure. In the complainant's view, the EIB's failure to do so meant that the refusal to grant access was illegal for this reason alone. As regards Article 4 (1) (vi) and (vii), the complainant considered that the EIB had failed to examine or to explain whether and which commercial interests or professional secrets would be affected. The complainant further submitted that the EIB's reliance on Article 4 (1) (ii), (vi) and (vii) was not justified, since otherwise the aim and purpose of the Rules (which was to grant the public the widest possible access to documents in the possession of the EIB) would be nullified.

3.7 As a preliminary point, the Ombudsman notes that a distinction should be made between the issue of access to documents and the question as to whether the EIB was correct in refusing to provide the complainant with the name of the external consultant whose services it had used. The Ombudsman will therefore consider the issue of access to documents first (see points 3.8-3.17) before turning to the second issue (point 3.18).

3.8 The recitals of the EIB's Rules refer to Regulation (EC) no 1049/2001 regarding public access to European Parliament, Council and Commission documents(9) and state that the EIB "wishes that, under the requirements of good administration applicable to Community institutions and bodies including the Bank, documents be publicly available to the maximum extent possible"(10). According to these recitals, the EIB had therefore decided to revise its rules on public access to documents "to take account of the principles and limits laid down in the aforementioned Regulation (EC) No 1049/2001, to the extent that this shall not undermine the full performance of its task as a financial institution as laid down in the Treaty"(11). The Ombudsman therefore considers that the case-law of the Community courts concerning Regulation 1049/2001 and its predecessors is also relevant for the purposes of interpreting the Rules adopted by the EIB.

3.9 It emerges from this case-law that before deciding on a request for access to documents, the institution or body concerned must consider, for each document requested, whether in the light of the information in its possession disclosure is in fact likely to undermine one of the interests protected by the rule it wishes to invoke. The statement of the reasons for a decision refusing access to documents must therefore contain - at least for each category of documents concerned - the specific reasons for which the institution or body considers that disclosure of the documents requested is precluded by one of the exceptions set out in the relevant rules, in order to enable the applicant to satisfy himself that the institution or body did in fact consider the documents in the above-mentioned manner and to assess whether the grounds for refusal are justified(12).

3.10 The Ombudsman notes that in its letter of 2 July 2003, the complainant set out in sufficient detail the documents or categories of documents to which it wished to be given access. In these circumstances, the EIB's reply of 11 September 2003 was clearly inadequate in that the EIB there limited itself to a simple enumeration of exceptions that were applicable in its view, instead of examining the relevant issue for each document or at least category of documents. It is true that the EIB's letter of 11 September 2003 appears to indicate that the EIB believed that access could be denied for each and every document on the basis of Article 2 (4) of its Rules. As mentioned above, this provision allows the EIB to refuse to follow up any application "of an excessive or patently disproportionate nature". However, it should be considered that every exception to the right of access to documents under Community law has to be interpreted and applied strictly(13). The Ombudsman considers that the EIB has not established that the complainant's request for access fell within the type of cases covered by Article 2 (4) of the Rules. The mere fact that the request for access concerned what the EIB referred to as a "substantial" number of documents is clearly not sufficient to show that this request was excessive. It should further be noted that the EIB appears to assume that the request for access was of a disproportionate nature because it would have been necessary for it to consult a large number of third parties under Article 3 of the Rules. This provision of the Rules will be examined subsequently (see point 3.13 below). For present purposes, it suffices to note that Article 3 of the Rules only applies to documents the EIB has "received from a third party". It thus does not apply to the EIB's own documents that are covered by the complainant's request for access. In any event, regard should be had to the fact that in its letter of 17 October 2003, the EIB clarified that its decision of 11 September 2003 had primarily been based on Article 4 of the Rules and that Article 2 (4) of its Rules had only been mentioned in addition to the exceptions set out in Article 4.

In its opinion, the EIB again limited itself to an enumeration of the exceptions that it considered to be applicable. For the reasons set out above, the opinion thus also failed to provide an adequate statement of the reasons for refusing access.

3.11 In these circumstances, the Ombudsman could have called upon the EIB to review its position already after having received this opinion or after having received the complainant's observations thereon. However, in the absence of more specific information such a recommendation would have had to be made without a prior examination of the exceptions that had been put forward by the EIB. Such a recommendation would therefore only have had a limited usefulness. The Ombudsman considered it preferable, therefore, first to ask the EIB for further information in this respect, so as to obtain a better basis for his appraisal.

3.12 In its reply to this request for information, the EIB submitted that its refusal to grant access to the relevant documents was now also based on Article 4 (1) (iii) of the Rules. The Ombudsman considers that good administrative practice requires that where a Community institution or body wishes to reject a request for access to documents, all the reasons on which this refusal is based are set out in the decision rejecting the request. It is certainly possible that new facts may subsequently arise which may entitle the Community institution or body concerned to put forward additional reasons for not granting access. The Ombudsman notes, however, that Article 4 (1) (iii) of the Rules was first invoked by the EIB in its letter of 25 November 2004. Regard should be had to the fact that the existence of the court proceedings in the Slovak Republic was already known to the EIB when it submitted its opinion on 30 July 2004. Since this opinion focussed on the issue of access to documents, it is difficult to see why the EIB should have been unable to invoke Article 4 (1) (iii) already then instead of waiting another four months before doing so.

The Ombudsman considers that the EIB has in any event not established how the disclosure of the relevant documents could "undermine the protection of...court proceedings". The EIB has limited itself to a mere statement in this context, without submitting any arguments as to the risk that the disclosure of the relevant documents could in its view entail for the proceedings before the Slovak courts.

3.13 The Ombudsman notes that in its reply to the request for information, the EIB invokes, directly or by way of reference, Article 3 of its Rules in order to justify the refusal to disclose all the documents apart from its Internal Audit Investigation Report. Article 3 is worded as follows:

"Where the Bank is approached with an application in respect of a document in its possession received from a third party, it shall consult the third party concerned for agreement, save where it results clearly from examination of the document in the light of this decision(14) that it must or must not be disclosed."

3.14 It is clear from the wording of this provision that only documents drawn up by and received from third parties are covered by Article 3(15). The Ombudsman therefore fails to see how this provision could be applied to documents drawn up by the EIB, as the EIB claims with regard to items 6 ("Correspondence between the EIB and Metro") and 7 ("Correspondence from the EIB to Metro concerning the award proposal").

In any event, it emerges from the structure, the contents and the context of the Rules that Article 3 is not itself an exception. The "exceptions" to the right of access are set out in Article 4 of the Rules(16). The Ombudsman considers that Article 3 is a procedural rule which makes it necessary for the EIB to consult the third party from which it received the document for its "agreement"(17) with the disclosure of the document, unless it is clear that the document must or must not be disclosed in the light of the Rules. Article 3 thus makes it clear that the EIB first has to examine itself whether a third-party document must or must not be disclosed and that the author of the document only needs to be consulted when such decision in either sense is not possible. The Ombudsman considers that this rule only makes sense if the EIB does not only have the possibility, but also the obligation to proceed to such a consultation. Apart from cases that fall within Article 2 (4) of the Rules, the EIB can thus not limit itself to finding that a third-party author needs to be consulted without proceeding to this consultation. The EIB's failure to carry out such a consultation in the present case thus constitutes maladministration.

To avoid any possible misunderstanding, it may be useful to note that Article 3 refers to the consultation of the third party from whom the EIB has received the relevant document. Article 3 thus does not appear to require the EIB to consult any other party that may have an interest in the document without being its author. The Ombudsman therefore finds it difficult to understand the EIB's argument that in so far as the minutes of the Evaluation Committee are concerned, the authorisation of Metro (ultimately the Slovak Republic and the City of Bratislava), of all other tenderers and of each member of the selection board would be needed for disclosure under Article 3 of the Rules.

3.15 As regards the other exceptions mentioned by the EIB, the following comments should be made:

(1) The EIB has invoked Article 4 (1) (ii) of the Rules as regards the minutes of the Evaluation Committee, arguing that non-disclosure was necessary to protect the privacy and integrity of the members of this committee. The Ombudsman considers that the members of the Evaluation Committee were carrying out a duty entrusted to them under the relevant contracts and were thus active in an official capacity when engaging in the discussions that appear to be reflected in the minutes. He is therefore unable to see how the privacy and integrity of the members of the committee could be invoked in order to refuse the disclosure of these minutes.

(2) As regards the EIB's Internal Audit Investigation Report, the Ombudsman considers that the EIB's position that the disclosure of this document could be refused on the basis of Article 4 (1) (v) of the Rules appears to be reasonable. The Ombudsman takes the view that the complainant has not shown why the protection afforded by this provision should only be available until the audit has been completed.

(3) The EIB's reliance on the protection of the commercial interests of a natural or legal person (Article 4 (1) (vi) of the Rules) appears to be legitimate in principle. However, the Ombudsman considers that the EIB has failed sufficiently to clarify whose commercial interests are to be protected. The Ombudsman furthermore considers it difficult to understand how this exception could be invoked to justify the refusal to disclose the correspondence between the EIB and Metro concerning the tender procedure (item 6 on the list provided by the EIB) in its entirety. At the very least, the possibility of granting partial access would need to be addressed in detail in this regard.

(4) Article 4 (1) (vii) provides that a request for access can be rejected where the disclosure of the relevant documents would undermine "the obligation of professional secrecy where such disclosure were to be contrary to professional ethics, rules and practices available in the banking and financial sector". Given that this exception is broadly worded, the requirement to interpret exceptions strictly is particularly important in this context. The Ombudsman therefore considers that in order for this exception to be applicable, the EIB would at least have to specify the concrete contents of the "professional ethics, rules and practices available in the banking and financial sector" that it believes would be affected.

(5) As regards Article 4 (2) of the Rules, it should be noted that this provision covers two different situations, i.e. the cases where a decision has not yet been taken (Article 4 (2), first sentence) and those cases where a decision has already been taken (Article 4 (2), second sentence). The complainant has argued that the EIB's decision in the present case has already been taken, and the EIB has not contradicted the complainant on this point. The Ombudsman considers that the EIB has in any event not submitted any arguments to show that the disclosure of the relevant documents would "undermine" its decision-making process. The fact that the documents concerned appear to be internal documents can obviously not be sufficient in this context, since Article 4 (2) of the Rules would otherwise be deprived of any significance.

3.16 The Ombudsman notes that the EIB no longer appears to rely on Article 4 (3) of its Rules, given that this provision (which was invoked in the EIB's letter to the complainant of 24 September 2003) is no longer referred to in the letter of 25 November 2004.

3.17 The Ombudsman therefore concludes that the EIB has not satisfactorily dealt with the complainant's requests for access to documents.

3.18 As regards the complainant's request to be given the name of the external expert consulted by the EIB in the audit, the Ombudsman considers that none of the reasons invoked by the EIB so far appears to be convincing. In so far as Article 4 (1) (ii) and (vii) of the Rules are concerned, reference can be made to what has already been said in relation to these exceptions in the context of the discussion of the requests for access to documents (see point 3.15 above). Article 4 (1) (viii) protects "the legitimate interest of the Bank in organising its internal management, notably with respect to human resources". The Ombudsman finds it difficult to see the link between the internal management of the EIB and its decision to consult an external expert. He therefore concludes that the EIB has not yet satisfactorily replied to the complainant's request for information on this point.

4 Conclusion

In view of the above, the Ombudsman makes the following draft recommendation to the European Investment Bank, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

The European Investment Bank should reconsider the complainant's requests for access to documents and for information and disclose the documents and information concerned, unless there are valid grounds for refusing to do so.

The European Investment Bank and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the European Investment Bank shall send a detailed opinion by 31 May 2005. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 28 February 2005

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) The complainant submitted a copy of the German version of April 2002. The citations in the text are taken from the version dated February 2004 currently available on the EIB's website. There does not appear to be any difference between these two versions in so far as the quoted passages are concerned.

(3) It should be recalled that the Slovak Republic joined the EU only on 1 May 2004.

(4) These grievances correspond to the allegations made by the complainant in the present complaint which are presented at pages 8-11.

(5) The EIB submitted copies of these two decisions.

(6) The EIB submitted copies of these two decisions.

(7) It subsequently emerged that the oral hearing in this case was scheduled to take place in December 2004.

(8) OJ 2002 C 292, p. 10.

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

(10) Cf. the sixth recital.

(11) See the seventh recital.

(12) Cf. Case T-105/95 WWF UK v Commission [1997] ECR II-313, paragraph 64; Case T-124/96 Interporc Im- und Export-GmbH v Commission [1998] ECR II-231, paragraphs 52 and 54.

(13) See Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1 paragraph 27.

(14) The reference here is to the Rules (see Article 1 (1) of the Rules).

(15) In the Rules, Article 3 is preceded by the title "Third-party documents".

(16) This article is preceded by the title "Exceptions".

(17) Article 3 does not clarify whether a third-party author is completely free to refuse his consent or whether any such refusal must be based on one of the exceptions set out in Article 4 of the Rules.