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Recommendation of the European Ombudsman in case 723/2018/AMF on how the European Union Agency for Network and Information Security handled a public tender procedure

Monday | 01 July 2019

The case concerned a public tender procedure by the European Union Agency for Network and Information Security for the organization of an event. The Agency failed to reply to the questions submitted by the complainant during the preparation of its tender. However, the Agency did reply to the questions from another tenderer.

The Ombudsman inquired into the issue and found that the failure to reply to the complainant´s questions was contrary to the principle of equal treatment and constituted maladministration. She therefore makes a recommendation that ENISA compensate the complainant for the time and resources invested in preparing its tender.

Recommendation of the European Ombudsman in case 452/2018/AMF on the European Commission’s failure to disclose information on the existence of EU Pilot dialogues and to publish proactively Member State reports on the implementation of the Fisheries Control Regulation

Wednesday | 19 June 2019

The case concerns a refusal by the European Commission to give an environmental NGO general information about discussions between the Commission and Member States regarding their potential non-compliance with the EU’s Fisheries Control Regulation. The complainant also asked the Commission to publish proactively Member State reports on how they implemented the Fisheries Control Regulation.

The Ombudsman considers that the Commission is wrong not to provide the complainant with the information it requested and makes a recommendation in that regard. The Ombudsman also suggests that the Commission proactively publish Member State reports on the implementation of the Fisheries Control Regulation.

Recommendation of the European Ombudsman in case 552/2018/MIG on the European Commission’s refusal of public access to documents concerning the German Network Enforcement Act

Tuesday | 11 June 2019

The case concerned a refusal by the Commission, in 2017, to give a Member of the European Parliament public access to Commission documents regarding a new German social media law. The complainant considered that the Commission had failed to identify all the documents falling within the scope of her request. Regarding those documents it did identify, she considered that the Commission had wrongly redacted the documents.

The Ombudsman found that the Commission had failed to identify all the documents falling within the scope of the complainant’s request. She also found that the redactions made by the Commission were excessive. She thus proposed that the Commission reassess the scope of the request and reconsider its decision to (partially) deny access to the identified documents.

The Commission did not follow this solution proposal. As the Ombudsman considers the Commission’s handling of the complainant’s access request to constitute maladministration, she makes a corresponding recommendation and expresses her concern at the inordinate length of time the Commission has taken in dealing with this matter.

Recommendation of the European Ombudsman in case 2142/2018/TE on the European Commission’s refusal to grant access to Member State positions on a guidance document concerning the risk assessment of pesticides on bees

Friday | 10 May 2019

Pesticides are considered to be a contributing factor in the decline of bees in Europe. Following concerns, widely raised, the European Food Safety Authority (EFSA) developed, in 2013, guidance on the assessment of risk of pesticides on bees.

The complaint, submitted by a French civil society group, concerned a request for public access to documents containing the positions of EU Member States on the 2013 EFSA guidance. The European Commission refused access on the basis that the disclosure of Member State positions would jeopardise an ongoing decision-making process.

The Ombudsman found that the documents at issue should, in view of the context in which they were drawn-up and in view of their purpose, benefit from the wider access granted to “legislative documents” under the EU law on public access to documents. Wider access to such documents is crucial to ensure that EU citizens can exercise their treaty-based right to participate in the democratic life of the Union. The Ombudsman also considers that the documents in question contain environmental information, as defined in the Aarhus Regulation. The exception invoked by the Commission to refuse public access to the requested documents must therefore be applied all the more restrictively.

The Ombudsman also found that the Commission has not demonstrated that disclosure of the documents in question would seriously affect, prolong or complicate the proper conduct of the decision-making.

The Ombudsman therefore considers that the Commission’s refusal to grant public access to the positions of Member States constituted maladministration. She recommends that the Commission should grant public access to the requested documents.

Recommendation of the European Ombudsman in case 1651/2018/THH on the European Parliament’s refusal to grant public access to documents related to the revision of the list of expenses that may be covered by the General Expenditure Allowance granted to Members of the European Parliament

Monday | 29 April 2019

The case concerned the decision by the European Parliament’s administration not to grant public access to documents related to the revision of the list of expenses which may be covered by the General Expenditure Allowance granted to Members of the European Parliament.  The complainant had requested public access to a proposal from a Parliament ad hoc Working Group (including the options listed in that proposal), a letter accompanying the proposal and other documents relating to the discussion of the allowance at a specific meeting within Parliament.

The Parliament’s administration identified the first two requested documents, but did not grant access to them in order to protect Parliament’s decision-making process.  It also identified a further document (a list of expenses) which it sent to the complainant, on the grounds that the document was already publicly available.

The Ombudsman inquired into the issue, inspected the documents in question and found that the public interest overrides the need to protect the Parliament’s decision-making process. Therefore, the Ombudsman made a recommendation that Parliament should grant public access to the relevant letter and proposal.

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.