Executive Director European Border and Coast Guard Agency

 

 

Dear Mr X,

I have decided to close the above-mentioned inquiry.[1] It concerned the following two Frontex practices for handling requests for public access to documents:

1. If Frontex finds that a request is so complicated that it needs to seek a ‘friendly solution’ with the person who requests access, it considers it lawful as well as beneficial for the requester to defer the registration of the request and thus prevent the statutory time-limits from starting to run.  

2. If Frontex finds that a registered access request is, on a closer look, so imprecise that the document(s) cannot be identified, it considers that it can suspend the statutory time-limits.

The prompt handling of requests for access to documents is central to the EU legislation on public access to documents (Regulation 1049/2001). To prevent a statutory time-limit from running, or to suspend it later on, are such serious matters that normally there would be express legal rules for doing so. As there are none, I invited you to reconsider your agency’s rejection of my initial proposal to end these two practices.[2] You decided not to do so.[3] I accordingly confirm the assessment set out in my recommendation[4], and have closed the inquiry with the finding that these practices constitute maladministration. 

Over and above our disagreement on the lawfulness of the two practices, I consider it necessary and appropriate to express some concerns regarding the way in which your position in this matter was presented.

In the first place, I note that part of your replies focused in considerable detail on the possible historical legislative intentions behind the legal provisions in question. While it can certainly be helpful to look at the legislative history when interpreting a legal text, I consider that there is sufficient and clear case law interpreting the relevant provisions of Regulation 1049/2001. This case law has sought to give effect to the fundamental objectives of the public access legislation. I also note that the European Parliament recently adopted a resolution in which it endorsed my recommendation in this case.[5]

You also consider that these practices are beneficial to persons who request access. I cannot agree that it is beneficial to requesters when an EU body allows itself unilaterally to delay or suspend the applicable statutory time-limits. In the absence of the initial registration of an access request, it is impossible or extremely difficult for requesters to enforce their rights under Regulation 1049/2001.

The references to case-law and previous decisions of the Ombudsman are equally disconcerting. Regarding the former, we asked early on for specific references to the case-law[6] that purportedly justifies the practices[7] in question. The case-law references that we ultimately received[8] demonstrate the importance that the Court accords to the use of, and respect for, the statutory time-limits in Regulation 1049/2001. In particular, the Court has clearly stated that finding a friendly solution does not allow the institution concerned unilaterally to extend the time-limits for handling public access requests.[9]

Regarding previous decisions of my Office, I note that you have drawn general assumptions from such decisions where this was not justified. For instance, you referred to a case that concerned the European Medicines Agency[10], but which can only be read in light of its very specific facts[11], and cannot be relied upon to conclude that the Ombudsman considers postponing registration generally reasonable or lawful. The case you cite concerned multiple requests for public access to documents made by a single applicant in close temporal proximity that could reasonably be considered as ‘one request’, the processing of which would entail an excessive administrative burden. I found that the European Medicines Agency has in such cases the right to seek a “fair solution” and that such a fair solution may entail the deferred processing of such multiple requests, under certain conditions. I of course welcome and encourage the use of my Office’s findings as a reference source, but it is disheartening when such use conveys the impression of an attempt to reveal contradictions and to discredit subsequent assessments.

It is equally disheartening to see my reference to a practice of the European Commission, which addresses the issue of premature registration of requests, being interpreted as my Office generally encouraging the re-registration of requests that Frontex considers to be imprecise. In my recommendation, I said that “when an institution or body realises, within a reasonable period of time (2-3 working days), that it has mistakenly registered an imprecise request”, the correction of such a premature registration can be reasonable. I explicitly mentioned that I consider the re-registration of a request reasonable only if it happens in the context of a rapid correction of a premature registration within 2-3 working days from the date of receipt of the request. I did not endorse the Commission’s practice of re-registering access requests as such.

I regret that it has not been possible to end this inquiry on a more positive note.

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 13/03/2024

 

[1] The case page on the Ombudsman’s website: https://www.ombudsman.europa.eu/en/opening-summary/en/158399

[2] The Ombudsman’s letter of 7 November 2023: https://www.ombudsman.europa.eu/en/doc/correspondence/en/177525

[3] The reply of 15 December 2023 from Frontex’s Executive Director: https://www.ombudsman.europa.eu/en/doc/correspondence/en/183332

[4] https://www.ombudsman.europa.eu/en/recommendation/en/170366

[5] European Parliament resolution of 14 December 2023 on Frontex building on the fact-finding investigation of the LIBE Working Group for Frontex Scrutiny (P9_TA(2023)0483, Point 10): https://www.europarl.europa.eu/doceo/document/TA-9-2023-0483_EN.html

[6] https://www.ombudsman.europa.eu/en/doc/correspondence/en/183333

[7] https://www.ombudsman.europa.eu/en/doc/correspondence/en/183334

[8] https://www.ombudsman.europa.eu/doc/correspondence/183335

[9] Judgment of the Court of Justice of 2 October 2014, Strack v Commission, C-127/13, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62013CJ0127, paragraph 26-28.

[10] Case 1608/2017/ MIG (https://www.ombudsman.europa.eu/en/decision/en/111254).

[11] In case 2243/2022/SF, the Ombudsman emphasised the specificity as follows: “The Ombudsman has found in the past that, under certain circumstances, a queuing mechanism may constitute a “fair solution” where the institution would otherwise have to refuse public access due to an excessive administrative burden. Specifically, the past cases concerned multiple requests for public access to documents made by a single applicant in close temporal proximity that could reasonably be considered as ‘one request’, the processing of which would entail an excessive administrative burden. The Ombudsman found that EMA has in such cases the right to seek a “fair solution” and that such a fair solution may entail the queuing of such multiple requests. In these specific circumstances, the Ombudsman considered that a queuing mechanism can be a viable instrument to ensure that as many individuals as possible can exercise their right of public access to documents and that all individuals are treated fairly and equally.” (https://www.ombudsman.europa.eu/en/decision/en/179137, paragraph 32.)