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Decision in case 1435/2017/JAS on the European Commission’s decision refusing public access to documents on a medical product

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  • Caz :  1435/2017/JAS
    Deschis la 27.09.2017 - Decizie din 15.01.2018
  • Instituţia (instituţiile) în cauză :  Comisia Europeană

The complainant, the former managing director of a now insolvent German company, asked the European Commission for public access to part of its file on an asthma inhaler invented by him. Since 2011, the complainant has had a legal dispute with the Commission in the EU courts over the Commission’s inaction following Germany’s prohibitions to market the inhaler.

During the course of the inquiry, the Commission revised its initial decision and gave the complainant full access save for redactions necessary to protect personal data. The Ombudsman thus closes the case as resolved.

However, the complaint to the Ombudsman was triggered by a certain delay in the Commission responding to the access request coupled with a technical error. Although the delay in this case was not sufficient to make a finding of maladministration, the Ombudsman underlines that the Commission should always strive to meet the deadlines for handling requests for access to documents. The Ombudsman also suggests that the Commission should explore ways to ensure that its departments are informed of legitimate e-mail correspondence blocked by its “firewall”.

Background to the complaint

1. The complainant was the managing director of a now insolvent German company that produced a medical device, namely an asthma inhaler invented by the complainant. Since 2011, the complainant has been involved in a legal dispute with the European Commission before the EU courts over the Commission’s inaction following Germany’s prohibitions to market the inhaler[1]. The complainant’s appeal to the Court of Justice against the latest ruling by the General Court is still ongoing[2].

2. In June 2017, the complainant submitted to the Commission a request for public access[3] to documents related to that case, dating from the period between 2007 and 2011. The Commission first extended the initial 15-day deadline for replying to the access request by another 15 days[4]. On the day of the expiry of the extended deadline, the Commission informed the complainant that it would not be able to reply on time. The Commission apologised for the additional delay.

3. As the Commission did not reply within the prescribed time-limit, the complainant was entitled to make a so-called confirmatory application[5] (that is, a request for the Commission to review its implicit refusal to grant access), which he did the next day.

4. A couple days later, the Commission sent its substantive reply to the complainant’s initial access request. It identified eight documents as falling within the scope of the request. The Commission granted partial access to five of the documents, redacting personal data. From one of the documents it also redacted information that it considered covered by the exception to access aimed at protecting court proceedings[6]. That exception was also invoked by the Commission to refuse access to three documents in their entirety. The Commission stated that the complainant could make a confirmatory application within 15 working days.

5. Three weeks later, the complainant submitted a complaint to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into the complainant’s position that the Commission was wrong to refuse access to some of the requested documents.

7. As a first step in the inquiry, the Ombudsman asked the Commission whether it intended to respond to the complainant’s confirmatory application.

8. The Commission responded that it had made a search of its e-mailboxes and database on access to documents requests and had found no trace of the complainant’s confirmatory application. However, the complainant had sent a copy of the confirmatory application to the Ombudsman. That copy showed that the complainant had sent the confirmatory application to the correct Commission e-mailbox.

9. On that basis, the Commission registered the complainant’s confirmatory application and informed the Ombudsman that it would issue a decision thereon. The Commission later informed the complainant that it had to extend the initial 15-day deadline by another 15 working days (to 24 November) due to the need to consult different Commission departments.

10. On 24 November 2017, the Commission issued its decision on the complainant’s confirmatory application. In the decision, the Commission explained that it had not received the confirmatory application in July 2017 due to a technical error. It also stated that, after having consulted the German authorities, it no longer invoked the exception to protect court proceedings. The Commission thus gave access to additional (parts of) the requested documents redacting personal data only.

Access to the requested documents

The Ombudsman’s assessment

11. The Ombudsman welcomes the fact that the Commission has granted the complainant full access to the requested documents save for redactions necessary to protect personal data. The Commission has thereby resolved the complaint.

12. Nevertheless, the Ombudsman regrets the delay that has occurred in the handling of the complainant’s access request. This delay was the unfortunate combined result of the Commission’s failure to meet the deadline for handling the complainant’s initial request and the technical error that meant that the Commission did not receive the complainant’s confirmatory application.

13. The Commission should always strive to meet the legal deadlines for handling requests for public access to documents. A failure to respect citizens’ rights to timely access to information can give rise to maladministration. However, in this case, the Ombudsman considers that the fact that the Commission was three working days late in replying to the complainant’s initial access request does not require a finding of maladministration, taking into account that, before the expiry the deadline, the Commission informed the complainant of, and apologised for, its failure to meet the deadline. There is nothing to suggest that the Commission would not have registered and handled the complainant’s confirmatory application, had it not gone missing due to a technical error.

14. Regarding the technical error, it seems that the complainant’s e-mail with the confirmatory application was blocked by the Commission’s “firewall” (that is, a computer security system that monitors and controls incoming and outgoing network traffic based on predetermined security rules).

15. The Ombudsman understands the need to protect the Commission’s IT systems from malicious attacks. At the same time, it is important that this need does not prevent the Commission from receiving correspondence sent by citizens in the exercise of their rights. The Ombudsman thus suggests that the Commission explores how to ensure that its departments (for example, the departments responsible for handling access to documents requests) are notified of electronic correspondence blocked by security systems, in particular where the Commission has previously successfully corresponded with the sender of the correspondence.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

By providing the complainant with the requested documents, the Commission has resolved the complaint.

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

Suggestion for improvement

The Commission should ensure that its departments are notified of electronic correspondence that is blocked by security systems, in particular where the Commission has previously successfully corresponded with the sender of the correspondence.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 15/01/2017

 

 

[1] See also Recommendation of the European Ombudsman in case 445/2016/JAS on the refusal of the European Commission to grant public access to its file on a medical product, available at: https://www.ombudsman.europa.eu/en/cases/recommendation.faces/en/86684/html.bookmark

[2] Klein v Commission, C-346/17 P.

[3] In accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.

[4] In accordance with Article 7(3) of Regulation 1049/2001.

[5] In accordance with Article 7(4) of Regulation 1049/2001.

[6] Article 4(2), second indent, of Regulation 1049/2001.