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Recommendation of the European Ombudsman in case 1731/2018/FP on the refusal by the Innovation and Networks Executive Agency to grant public access to the documents submitted by a public undertaking for a funding approval in the context of a call for proposals by the Connecting Europe Facility

Monday | 01 April 2019

The case concerned the refusal by the Innovation and Networks Executive Agency (INEA) to grant public access to the documents submitted by a public undertaking for a funding approval in the context of a call for proposals by the Connecting Europe Facility.

The Ombudsman inquired into the issue and proposed that INEA should partially disclose the requested documents, redacting only information that it considers to be genuinely commercially sensitive or personal data requiring protection. However, INEA rejected the Ombudsman’s proposal, arguing that most of the information which was proposed for disclosure was already in the public domain and the proposed partial disclosure would impose a disproportionate administrative burden on INEA. It also said that it accepted the arguments of the relevant third party, the national cybersecurity authority of a Member State, regarding the likely damage to commercial interests which would result from disclosure.

The Ombudsman found INEA’s refusal to grant even partial public access to the requested documents to constitute maladministration. The Ombudsman therefore recommends that INEA should partially disclose the requested Grant application forms A and D submitted by the public undertaking in the context of a call for proposals by the Connecting Europe Facility’s, redacting only information that it considers to be genuinely commercially sensitive (which the Ombudsman considers to be very limited) or personal data requiring protection (such as the CVs and personal details of the individuals to be employed on the project).

Recommendation of the European Ombudsman in case 805/2018/THH on the European Investment Bank’s refusal to grant public access to documents regarding a loan to Volkswagen

Friday | 29 March 2019

The case concerned a loan of EUR 400 million of public money granted by the European Investment Bank (EIB) to Volkswagen, one of Europe’s largest companies, and which was subsequently used fraudulently by that company.

The loan was granted to co-finance a research and development project aimed at reducing polluting car emissions. In 2015, following worldwide news coverage of the ‘Dieselgate’ scandal, concerns were raised that Volkswagen had used the loan to develop a “defeat device” which would produce misleading results on emissions tests. The European Anti-Fraud Office (OLAF) opened an investigation into the loan in November 2015. This investigation was finalised in the summer of 2017, when OLAF sent its final report and recommendation to the EIB. The report found that Volkswagen had misled the EIB in the acquisition of the loan.

The complainant, an investigative journalist, requested from the EIB, under EIB transparency rules, public access to the report and recommendation, along with related internal documents of the EIB. The Bank refused public access. Dissatisfied, the complainant turned to the European Ombudsman.

The Ombudsman found that there was a very strong public interest in disclosure of the relevant documents and that this overrode the EIB’s concerns. She therefore proposed to the EIB in December 2018 that it should grant public access to the report and recommendation, with appropriate redactions only for personal data. In February 2019, the EIB published a summary of the report and recommendation.

The Ombudsman considers that release of the summary by the EIB is insufficient, particularly as the report contains several facts which are in the public interest to be disclosed.

She therefore recommends that the EIB should grant public access to the report and recommendation, as well as the internal notes drawn up by the Bank, with redactions only for personal data and any other information which could lead to individuals being identified.

Recommendation of the European Ombudsman in case 195/2017/JAP on the European Commission’s refusal to grant access to legal opinions on the proposal for a Regulation on the establishment of the European Public Prosecutor’s Office

Wednesday | 13 February 2019

The case concerned the refusal of the European Commission to grant public access to “legal opinions” on the legislative proposal for a Regulation on the establishment of the European Public Prosecutor’s Office (EPPO).

The Ombudsman found that the Commission should have granted public access to some parts of the documents which it had withheld. She therefore recommends specific further disclosures. In addition, the Ombudsman encourages the Commission to reconsider, in the light of subsequent developments, the need to continue to deny public access to other parts of the documents which it continues to withhold.

Recommendations of the European Ombudsman in the joint inquiry into complaints 1337/2017/EA and 1338/2017/EA on the accessibility for visually impaired candidates of selection procedures organised by the European Personnel Selection Office

Friday | 14 December 2018

The case concerned two complaints from visually impaired candidates who participated in selection procedures organised by the European Personnel Selection Office (‘EPSO’). The complainants faced issues with the accessibility of the online application form, including the form for requesting measures to accommodate their special needs, as these were not fully accessible for users of screen readers. The complainants also considered that EPSO had failed to accommodate their needs during the computer-based tests, as the measures taken did not correspond to the requests they had submitted and did not enable them to sit the tests independently.

The Ombudsman finds that while EPSO has made efforts to improve accessibility of its selection procedures, the delay in fulfilling its commitment to deliver a new online application form meeting accessibility requirements constitutes maladministration. She recommends that EPSO ensure that its online application form for selection procedures is made fully compliant with accessibility requirements for visually impaired candidates as soon as possible.

Moreover, the Ombudsman recommends that EPSO explicitly inform candidates that certain options for accommodating special needs, such as assistive technologies, are currently available only at specific stages of selection procedures. The Ombudsman further recommends that EPSO set out a detailed timeline for ensuring that assistive technologies are provided to candidates during the computer-based tests which take place in testing centres around the world.

 

Recommendation of the European Ombudsman in case 146/2017/DR on how the European Investment Bank handled a complaint about breaches of environmental, health and safety requirements in a project it financed

Tuesday | 04 December 2018

The case concerned how the European Investment Bank (EIB) handled a complaint about a project it financed in Madagascar for nickel-cobalt mining and processing. The complainant was concerned about the time taken to deal with his complaint. The complainant also raised concerns about whether the project had been monitored in terms of respect for environmental, health and safety requirements in an independent manner.

The Ombudsman found maladministration as the EIB took six years to finalise its investigation into the complaint. While some of the shortcomings identified have been addressed as part of the review of the EIB’s Complaints Mechanism, the Ombudsman made a recommendation to avoid problems in the future. The Ombudsman also found issues in how the EIB monitors projects and made a corresponding recommendation.

 

 

Recommendation of the European Ombudsman in case 1016/2016/CEC on the European Commission’s refusal to make a payment under a grant agreement concerning university associations in Latin-America

Monday | 15 October 2018

The complainant, the European University Association, representing over 800 universities in Europe, brought this case about the Commission’s refusal to pay certain of the costs it had incurred under the ALFA-PUENTES project. The unpaid amount is 83,289.89 EUR.

The Ombudsman finds that the Commission has not provided sufficient justifications for its refusal and that its decision to refuse to pay the disputed amount constitutes maladministration. 

Therefore, the Ombudsman recommends that the Commission pay the unpaid amount to the complainant.

Recommendation of the European Ombudsman in case 1275/2018/EWM on the European Commission’s refusal to grant full public access to the minutes of the meetings of the Technical Committee on Motor Vehicles from September 2016 to January 2017

Friday | 12 October 2018

Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1] Background to the complaint 1. The complaint concerns the transparency of the process by which Member State representatives discuss and decide upon EU rules regarding emissions from motor vehicles. 2. The complainant is a member of the European Parliament. On 27 January 2017, he asked the European Commission to give h...

Recommendation of the European Ombudsman in case 1708/2015/ANA on the European Commission’s refusal to grant public access to documents related to the use of GMOs as food or feed

Monday | 03 September 2018

This case, brought by Greenpeace, concerns the Commission's refusal to grant public access to documents taken into account by the Commission when preparing its proposal to amend EU legislation on the use of GMOs as food or feed.

The Ombudsman inquired into the issue and found that the Commission’s refusal to give full public access to the requested documents is not in line with Regulation 1049/2001.

This constitutes maladministration. The Ombudsman recommends that the Commission give full access to the documents in question.

Recommendation of the European Ombudsman in joint cases 488/2018/KR and 514/2018/KR on the European Commission’s appointment of a new Secretary-General

Friday | 31 August 2018

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

Following two complaints to her office, the Ombudsman conducted an inquiry into how Mr Martin Selmayr, the then Head of Cabinet [2] of the President of the European Commission, was appointed Secretary-General of the Commission in February 2018.

The outgoing Secretary-General, Mr Italianer, who had indicated his intention to retire to President Juncker in 2018 when he was first appointed in 2015, was replaced by Mr Selmayr without a competition and without any formal consideration of other candidates. As the vacancy was not published, no other candidates could apply.

This was not unprecedented. However in order to be fully eligible for such a direct reassignment, Mr Selmayr first had to apply to become Deputy Secretary-General. Such a position became vacant in January 2018, shortly after the then Secretary-General had confirmed to the Commission President his decision to retire in March 2018. This information was known at that time only by the President and by Mr Selmayr.

Mr Selmayr and another member of the Cabinet were the only two applicants for Deputy Secretary-General. The other member withdrew before the process was completed. Preparatory steps for appointing Mr Selmayr as Secretary-General were already being taken one day before the formal completion of the selection process for Deputy Secretary-General.

On Wednesday, 21 February 2018, the College of Commissioners approved the appointment of Mr Selmayr first as Deputy Secretary-General and then his reassignment as Secretary-General just minutes later, following the announcement during the meeting that the then Secretary-General would step down in March. The retirement of Mr Italianer had not been on the agenda.

Based on the inspection of Commission documents, the Ombudsman inquiry has identified several issues of concern:

  • Mr Selmayr did not recuse himself in January 2018 from the decision-making that led to the creation of the vacancy, and the approval of the vacancy notice, for the post of Deputy Secretary-General, despite the fact that it is highly likely he knew that he would apply for the post and later did so.
  • At that point Mr Selmayr had to recuse himself from taking part in the Consultative Committee on Appointments (CCA), which interviews and gives an opinion on the merits of candidates. However, contrary to the applicable binding rules, no replacement was appointed.
  • Documentary evidence of the sequencing of events shows that the Deputy Secretary-General appointment procedure was not undertaken to fill that post, but rather to make Mr Selmayr eligible for his immediate reassignment as the new Secretary-General.
  • When valid concerns were raised in relation to how the surprise double-appointments were made, the Commission reacted in an evasive, defensive and legalistic manner, which served further to increase concerns.

The European Parliament debated the issue and passed a resolution in plenary on 18 April 2018. Given the facts of the inquiry, the Ombudsman agrees with its assessment that the affair damaged trust in EU institutions and that the double-appointments “stretched and possibly even overstretched the limits of the law”.

Based on her inquiry, the Ombudsman now recommends that the Commission develop a specific appointment procedure for Secretary-General, separate from the procedure for other senior appointments.

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

[2] The French term “Cabinet” is frequently used to describe the private offices of Commissioners.

Recommendations of the European Ombudsman in case 758/2017/MDC on FRONTEX’s allegedly discriminatory language policy and the non-availability of an Italian version of two documents

Monday | 23 July 2018

Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1] The inquiry arose from a complaint by an Italian citizen who wanted to obtain an Italian language version of a document from the European Border and Coastguard Agency (Frontex). The Ombudsman considered that her inquiry should focus on the language policy of Frontex in its external communications. The Ombudsman recomm...