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Deciziei în cazul 808/2011/MHZ - Răspunsuri adresate unui cetăţean obişnuit, formulate pe un ton dispreţuitor
Decizie
Caz 808/2011/MHZ - Deschis la Joi | 19 mai 2011 - Decizie din Marți | 27 martie 2012 - Instituţia vizatǎ Consiliul European ( Soluţionate de instituţie )
Rezumat al deciziei privind plângerea 808/2011/MHZ împotriva Consiliului European
Reclamantul, un cetăţean polonez, a aflat că pe perioada vacanţei, preşedintele Consiliului European a utilizat maşini de serviciu pentru a se deplasa de la Bruxelles către un aeroport din Franţa şi înapoi, împreună cu familia sa. Reclamantul a solicitat Consiliului European să îi răspundă la mai multe întrebări şi a solicitat o copie a regulilor relevante privind utilizarea maşinilor de serviciu în scop personal. Deoarece răspunsurile Consiliului European au fost formulate pe un ton dispreţuitor, iar întrebările reclamantului au fost pur şi simplu ignorate, acesta s-a adresat Ombudsmanului European.
Opinia privind plângerea a fost prezentată de către Secretariatul General al Consiliului UE, care oferă asistenţă Consiliului European. Secretariatul General a anexat o copie a răspunsului Consiliului European la întrebările adresate de Parlamentul European care erau foarte similare întrebărilor reclamantului. În acest răspuns, au fost prezentate regulile relevante.
Ombudsmanul a constatat că răspunsurile Consiliului European la plângere au fost inadecvate. El s-a întrebat de ce Consiliul European nu i-a transmis reclamantului acelaşi răspuns sau unul similar cu cel pe care l-a dat deputaţilor Parlamentului European în cauză. Ombudsmanul a formulat, prin urmare, o propunere de soluţie amiabilă, sugerând prezentarea de scuze de către Consiliul European reclamantului. Consiliul European a făcut acest lucru. Ombudsmanul a felicitat Consiliul pentru prezentarea de scuze unui cetăţean „obişnuit” care nu are deseori ocazia de a lua legătura cu instituţiile UE şi, totuşi, a apelat la Consiliul European pentru a-şi exprima preocupările. Ombudsmanul a concluzionat că aceste scuze sincere constituie cel mai bun exemplu al faptului că administraţia UE manifestă respect pentru cetăţeni. El a arătat că, fără acest respect, distanţa dintre UE şi cetăţenii săi nu poate fi redusă. Ombudsmanul a închis cazul astfel cum a fost soluţionat de Consiliul European.
The background to the complaint
1. The complaint relates to (a) the adequacy of replies to letters which the complainant sent to the European Council concerning the use of service cars by the President of the European Council and (b) the European Council's handling of the complainant's request for access to a document.
2. The complainant, a Polish citizen, became aware that during the summer of 2010, while on holiday, the President of the European Council had used three of the European Council's service cars[1] to travel from Brussels to a French airport and back, together with his family (his wife, his children and their spouses and his grandchildren). The distance between Brussels and the airport is of about 260 km.
3. The complainant considered that, by so doing, the President abused his power and that he should have paid for those journeys with his own funds and not with public funds.
4. On 15 February 2011, the complainant addressed the European Council in this respect. His letter was entitled "the complaint". He complained that the President did not pay for the journeys in question out of his own pocket. He put four questions to the European Council concerning: (i) the cost of the use of the cars; (ii) why the President failed to pay for that use with his own funds; (iii) whether he had any intention to pay for it; and (iv) whether there exists a sanction for not doing so.
5. On 3 March 2011, the European Council replied very curtly that (i) it took note of the content of the complainant's letter; (ii) service cars were indeed used and (iii) "this is a normal procedure in case of such high positioned public figure and his family."
6. The complainant was not satisfied with this reply and, on 9 March 2011, turned to the European Council again. He first noted that its above-mentioned reply was not signed and therefore was not, in his view, valid. Moreover, he took the view that "such [a] high positioned public figure" should be able to pay for the cars with his own funds. By so doing, he could have given a good example to others. He argued that there is a legal principle which lays down that service cars should only be used for official purposes and not for personal ones. In addition, he asked for a copy of the European Council's rules which permit the personal use of service cars. He also asked that a proper reply be given to his previous letter.
7. The European Council replied on 18 March 2011. That letter was even shorter than the preceding one. The European Council stated that it took note of the complainant's letter of 9 March 2011 and that it had nothing to add to its reply dated 3 March 2011.
8. The complainant then turned to the European Ombudsman.
The subject matter of the inquiry
9. The complainant alleged that the European Council failed properly to reply to his query concerning the use of service cars for private purposes by its President.
10. He also alleged that the European Council failed to deal with his request for access to the European Council's rules on the private use of service cars.
11. He claimed that the European Council should reply properly to his query and to his request for access to the relevant document.
The inquiry
12. The Ombudsman asked the European Council for an opinion. On 24 June 2011, the General Secretariat of the Council of the European Union (the 'Council') replied and explained that by virtue of Article 235(4) TFEU, it assists the European Council. It thus submitted to the European Ombudsman the European Council's position on the complaint. The translation of the opinion into Polish was forwarded to the complainant with an invitation to submit observations by 31 August 2011. The complainant did not submit observations. On 24 November 2011, the Ombudsman's services wrote a letter to the complainant, in order to explore the possibility of making a proposal for a friendly solution. On 1 December 2012, the complainant replied to the letter. On 20 December 2012, the Ombudsman made a proposal for a friendly solution to the European Council. The Council of the European Union replied on 30 January 2012. This reply was forwarded to the complainant who responded with a letter dated 12 March 2012.
The Ombudsman's analysis and conclusions
A. Alleged inadequate replies and mishandling of the request for access and related claim
Arguments presented to the Ombudsman
13. The complainant took the view that the European Council's replies to his two letters were inadequate and impolite and that the European Council failed to address all his questions. He wished to know more about the conditions for the use of service cars by the President of the European Council. In his letters, he put five questions to the European Council concerning: (i) the cost of the use of the cars by the President of the European Council when travelling for holiday purposes; (ii) why the President failed to pay for that use with his own funds; (iii) whether he had any intention to pay for it; (iv) whether there exists a sanction for not doing so; (v) the existence of rules on the use of service cars for personal purposes. With regard to the last question, the complainant asked to be provided with a copy of such rules. None of these queries was addressed in substance.
14. Moreover, the European Council's replies were extremely short and were not signed. In the complainant's view such replies are not valid.
15. In the opinion, which the Secretary-General of the Council of the EU submitted on behalf of the European Council, the Secretary-General informed the Ombudsman that he had once again looked into the questions raised by the complainant in his letters dated 15 February and 9 March 2011. He considered that the replies given by the European Council to the complainant should be complemented by making reference to the Council’s reply, dated 4 April 2011, to a written parliamentary question put by Mr Nigel Farage, Member of the European Parliament (MEP), entitled "Use of official cars by Council members and officials and their families"[2]. The MEP asked the following questions: "What are the rules governing the use of official cars by officials working for the Council and their family members? Is the President of the Council covered by theses rules? What are the rules governing the use of official cars by the President of the Council?"
16. The Secretary-General enclosed with the opinion[3] a copy of the Council's reply to parliamentary questions number E-000635/2011.
He stated in the opinion that "there is no other publicly available document regarding the rules on the use of official vehicles belonging to the Council of the European Union."
17. In its reply to the MEP, the Council stated that the rules governing the use of official vehicles are determined in a decision of its Secretary-General. In that reply, the Council then quoted the following extract from the Secretary-General's decision: "Official vehicles may be made available in response to professional or official needs of the Council. Requests for vehicles are considered in the following order of priority: - all requirements relating to the official functions of the European Council and the Council, at the request of the Protocol Unit; - requests from Heads of Private Office, Directors-General and Deputy Directors-General; - requests from Directors." Furthermore, the Council stated that "[t]hese rules apply to a fleet of cars which are not assigned to named individuals. The use of a car is authorised on a case by case basis for specific journeys and the vehicles must be returned every evening to the car park in the Justus Lipsius building. It follows from the above that official cars belonging to the Council of the European Union may not be used for private purposes. The only exception to these rules is that for security reasons the President of the European Council has the use of a vehicle at all times. In addition, the Council of the European Union makes an official car available to the Presidency during sessions of the European Parliament in Strasbourg."
18. In the opinion, the Secretary-General emphasised that from the above document, it emerges that "for security reasons the President of the European Council has the use of an official vehicle at all times."
The Ombudsman's assessment leading to a friendly solution proposal
The quality of the European Council's replies dated 3 and 18 March 2011
19. In the Ombudsman's view, the way in which the European Council dealt with the complainant's questions is not acceptable under principles of good administrative practice and could lead citizens to believe that EU institutions completely ignore or even show contempt for their views and preoccupations. The questions raised by the complainant were clear and reasonable and both his letters were written by hand in a careful and courteous manner. The European Council's replies, on the other hand, were laconic, dismissive and disrespectful.
20. In its letter of 3 March 2011, the European Council did not reply to each one of the complainant's specific questions but merely stated that the use of service cars for personal purposes constitutes "a normal procedure in case of such a high positioned public person and his family." Moreover the European Council did not take the opportunity to ameliorate its answer when the complainant reiterated his questions in a subsequent letter of 9 March 2011.
21. The European Council thus failed to comply with Article 12(1) of the European Code of Good Administrative Behaviour, which provides that "… [w]hen answering correspondence … the official … shall reply as completely and accurately as possible to questions which are asked". The Ombudsman does not see why the European Council or the Council of the EU which assists the former did not give the complainant the same or a similar reply as that which the Council had given to the relevant MEP. European citizens will only trust the Institutions and accept the European Union if they can see that EU Institutions respect and consider their questions.
22. Finally, as rightly pointed out by the complainant, the form of the European Council's replies was inadequate. In these replies, the official dealing with the matter was not identified. Instead, only an illegible signature (or rather initials) appeared across the stamp. Article 14(2) of the European Code of Good Administrative Behaviour clearly requires the Institutions to indicate in their replies "the name and the telephone number of the official who is dealing with the matter …" The European Council did not comply with this rule either.
23. In light of the above, the Ombudsman took the view that the European Council failed to reply to the complainant's letters in an appropriate manner. Moreover, the Secretary-General did not apologise for the inappropriate answers which the European Council gave the complainant. This could amount to an instance of maladministration.
Handling of the complainant's request for access to a specific document
24. At the outset, the Ombudsman pointed out that the European Council's rules on access to documents refer to the Council's rules on access to documents. Pursuant to Article 10(2) of European Council Decision 2009/882/EU adopting its Rules of Procedure[4], the provisions concerning public access to Council documents, set out in Annex II to the Rules of Procedure of the Council of the European Union, shall thus apply mutatis mutandis to European Council documents.
25. The Ombudsman further pointed out that Regulation 1049/2001 applies to documents held by the Council. Article 1 of Annex II to Council Decision 2006/683/EC, Euratom[5] adopting the Council's Rules of Procedure, provides that any natural or legal person shall have access to Council documents subject to the principles, conditions and limits laid down in Regulation 1049/2001 and the specific provisions laid down in that Annex.
26. Finally, the Ombudsman also noted that, by virtue of Article 235(4) TFEU, the European Council is assisted by the General Secretariat of the Council of the European Union.
27. Against this legal background and taking into account that when he made his request for access, the complainant was obviously unaware of Regulation 1049/2001, the Ombudsman took the following position on this aspect of the present case. The European Council would have acted in accordance with principles of good administrative behaviour if, after having received the complainant's request for a copy of the relevant rules, it had explained to the complainant[6] the two step procedure foreseen in Regulation 1049/2001. This would have been in conformity with the obligation to give advice laid down in Article 10(3) of the European Code of Good Administrative Behaviour[7]. Moreover, the European Council could also have transferred the complainant's request to the General Secretariat of the Council for it to deal with it, especially since the document containing the rules in question is in fact a document authored by that General Secretariat. This would have been in conformity with the obligation to transfer requests to the competent service, which is laid down in Article 15(1) of the European Code of Good Administrative Behaviour[8].
28. However, the European Council failed to do both of these things. It simply ignored the complainant's request for access. This behaviour amounted to a second instance of maladministration.
29. Given that by enclosing the reply to the parliamentary questions with the opinion, the Secretary-General of the Council had disclosed to the complainant the rules in question, the Ombudsman did not pursue further the complainant's claim that the European Council should reply properly to his request for access to the relevant document[9]. Nevertheless, the Ombudsman took the preliminary view that, by simply ignoring the complainant's request for access to a document, the European Council committed a second instance of maladministration.
The Ombudsman's friendly solution proposal
30. In light of his findings in points 23 and 29 and in accordance with Article 3(5) of the Statute of the European Ombudsman, the Ombudsman suggested, in his proposal for a friendly solution, that the European Council apologise to the complainant for its behaviour.
The arguments presented to the Ombudsman after his friendly solution proposal
31. The reply to the above-mentioned proposal was submitted by the General Secretariat of the Council of the EU on behalf of the European Council. It pointed out that, in substance, the answers given to the complainant were correct. However, the General Secretariat regretted the fact that the answers provided appear to have left the complainant with a negative impression and offered him its sincere apologies.
32. The complainant was satisfied with the General Secretariat's reply and thanked the Ombudsman for his efforts.
The Ombudsman's assessment after his friendly solution proposal
33. The Ombudsman praises the Council for having apologised to an 'ordinary' citizen who hardly has the opportunity to be in touch with the EU institutions and yet has turned to the European Council to voice his concern. This sincere apology constitutes the best example of the EU administration showing respect for its citizens. Without this respect, the gap between the EU and its citizens cannot be narrowed.
B. Conclusions
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:
The European Council, which was assisted by the General Secretariat of the Council of the European Union, has settled the complaint.
P. Nikiforos Diamandouros
Done in Strasbourg on 27 March 2012
[1] The complainant used the phrase "taxis with drivers paid from the EU budget".
[2] The parliamentary questions bore reference number E-000635/2011.
[3] This undated reply was attached to a note dated 7 March 2011 addressed to the Permanent Representations of the Member States, in which the Council asked the representations for their views on the then draft reply by 23 March 2011.
[4] OJ 2009 L 315, p. 51.
[5] OJ 2006 L 285, p. 47.
[6] Article 6(2) of Regulation 1049/2001 lays down that, if an application for access to documents is not sufficiently precise, the institution shall ask the applicant to clarify the application and assist the applicant in doing so, for example by providing information on the use of the public registers of documents.
[7] Article 10(3) of the European Code of Good Administrative Behaviour: "The official shall, where necessary, advise the public on how a matter which comes within his or her remit is to be pursued and how to proceed in dealing with the matter."
[8] Article 15 of the European Code of Good Administrative Behaviour: "If a letter or a complaint to the institution is addressed or transmitted to a Directorate General, Directorate or Unit which has no competence to deal with it, its services shall ensure that the file is transmitted without further delay to the competent service of the Institution."
[9] The Ombudsman points out that the present complaint was not about a refusal to disclose documents. He recalls in this respect that he can only deal with complaints concerning negative decisions on requests for access to documents after the complainants submit a confirmatory application pursuant to Regulation 1049/2001.