Strasbourg, 17 December 2007

Dear Mr S.,

On 28 April 2004, you made a complaint to the European Ombudsman concerning the Commission's rejection of your confirmatory application for access to documents, dated 20 April 2004.

On 25 June 2004, I forwarded the complaint to the President of the European Commission.

On 15 December 2004, I requested that the Commission submit an additional opinion relating to an allegation that I had initially rejected, because internal remedies had not been exhausted.

The Commission sent its first opinion on 6 December 2004, which I forwarded to you with an invitation to make observations. You submitted your observations on 15 December 2004.

The Commission submitted its second set of observations on 23 February 2005. I forwarded these to you with an invitation to make observations. You sent an email in reply on 26 February 2005.

On 22 June 2005, I contacted you with a view to obtaining clarification of an issue raised in your complaint. You replied on 6 July 2005.

On 12 May 2006, I made a friendly solution proposal to the Commission.

The Commission replied on 1 August 2006, and I forwarded its reply to you for observations. On 8 August 2006, I made a further request for information from the Commission.

On 21 November 2006, you informed me of your wish to obtain mediation of your various disputes with the Commission. On 2 February 2007, I replied to your letter, informing you that I could not assume the role of a mediator as such.

On 7 March and 8 April 2007, you sent me your observations on the Commission's reply to my proposal for a friendly solution.

Due to special circumstances relating to your present and other complaints that you had submitted, the inquiry was discontinued for the period from 14 May to 6 September 2007.

I am writing now to let you know the results of the inquiries that have been made.

I would like to apologise for the delays that have occurred, on our part, in the handling of your complaint.

THE COMPLAINT

The complainant is a Commission official who, in the context of a complaint under Article 90(2) of the Staff Regulations, requested access to Commission documents. His complaint under Article 90(2) concerned a Commission decision not to promote him, which had involved several Commission services for which the complainant had worked.

The complainant's first request for access to documents was initially submitted on 9 January 2004 to the Directorate-General for Enterprise and Industry ("DG ENTR"), the Directorate-General for Personnel and Administration ("DG ADMIN"), Eurostat (the European Union's statistical office) and OPOCE (the European Union's publication office).

The complainant's request was formulated as follows: "as in follow up of reclamation [i.e. internal complaint] R/432/03 to enable effective legal control, I will need [the relevant Commission services] to hand over a complete set of documentation of all documents issued by the Commission and/or its services (especially the ones I was working for: DG ENTR, OPOCE and ESTAT [Eurostat]) in that context (i.e., CDR [career development review system] & Promotion) to my lawyer, I like to ask you to provide me with 2 such complete sets of documents [...]".

OPOCE informed the complainant that it had passed on the matter to DG ADMIN. Eurostat informed the complainant that it did not consider the handling of his request to be within its competence. The complainant shortly afterwards received an e-mail from DG ADMIN, on 12 January 2004, containing a reference to the Commission's intranet as well as a request that the complainant clarify what documents he intended to refer to.

On 19 January 2004, the complainant informed DG ADMIN that he was well aware that the various intranet sites contained information relating to the career development review system and promotion. He noted, however, that his lawyer did not have access to these sites, and that he himself did not find it possible to obtain a comprehensive overview of what the sites contained. The complainant also noted that the intranet only contained the latest versions and therefore not all those that existed from early 2003 onwards. The complainant considered that the latter were relevant to his case.

The complainant therefore asked DG ADMIN to provide him with all versions of all available and pertinent material that was relevant to the career development review system and promotion. He stated that he presumed that all the material would be available in German.

DG ENTR and DG ADMIN replied on 5 and 12 February 2004, respectively. They referred the complainant to the Commission's intranet sites and rejected access to a number of specific documents.

DG ENTR refused access to:

1. minutes of a meeting of the equality committee (PEA) relating to the complainant's internal complaint under Article 90(2) of the Staff Regulations (R/432/03);
2. draft documents relating to the Director-General's decision as appeal assessor ("Berufungsbeurteilender");
3. draft documents relating to the granting of priority points ("Vergabeverfahren von Prioritätspunkten").

DG ADMIN refused access to:

1. a statement from OPOCE relating to the assessment of the complainant;
2. a statement from DG ENTR relating to the complainant's internal complaint R/432/03;
3. a draft decision on the complainant's internal complaint referred to under point (2) above;
4. a legal opinion of the Commission's Legal Service on the draft decision referred to under point (3) above.

In the letters received from DG ENTR and DG ADMIN, the complainant was informed that he could make a confirmatory application to the Secretary-General of the Commission, in accordance with Article 7(2) of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(1) ("Regulation 1049/2001").

On 21 February 2004, the complainant made a confirmatory application to the Commission's Secretary-General. He argued that the refusal of access to the specific documents referred to above was unjustified and criticised the fact that he had been referred to the Commission's intranet sites. Regarding the latter, the complainant argued, in summary, that the intranet sites constituted an inadequate source of the relevant documents because (i) the quality of the intranet sites was poor and they were very time-consuming to use; (ii) the particular version of the documents concerned were either difficult or impossible to access; and (iii) not all the documents were in German. The complainant asserted that this poor access to the relevant documents effectively meant a lack of "equality of arms" in his employment dispute with the Commission, as he would not have access to the same relevant information as the Commission's services. The complainant furthermore suggested that the Commission had not complied with its duty to have regard for the interests of the official ("Fürsorgepflicht").

By letter dated 20 April 2004, the Commission's Secretariat-General replied to the complainant's confirmatory application. In its reply, the Commission first addressed the complainant's allegation that it had not complied with its duty to have regard for his interests as an official. The Commission informed the complainant that his confirmatory application had been made under Regulation 1049/2001. As the "duty to have regard for the interests of the official" was not relevant for the application of that regulation, the Commission refused to deal with this issue in its reply and advised the complainant to make use of the relevant alternative avenues of redress.

The Commission rejected the complainant's confirmatory application under Regulation 1049/2001 as follows.

Documents available on the intranet

The administrative communications relating to the new assessment and promotion system had been drawn to the attention of all officials. The Director-General of DG ADMIN had provided the relevant intranet address. He had therefore complied with his duty under Article 10(2) of Regulation 1049/2001(2). As regards the language of the document, Regulation 1049/2001 contained no provisions according to which the institution concerned must provide translations of the documents applied for.

Older versions of the documents available on the intranet

The documents on the intranet are frequently updated. It would be technically impossible to provide access to all versions. DG ADMIN could give access to previous versions of documents. To enable identification of these, the complainant could submit a new application, specifying exactly which documents he wanted.

Specific documents to which access was refused(3)

Access to the documents had to be refused because they concerned personnel matters. Disclosure would imply a breach of Article 4(1)(b) concerning the protection of personal data(4) (that is, the data of the complainant himself); Article 4(3), second subparagraph, concerning the Commission's decision-making process(5); and Article 4(2) concerning legal advice(6). The Commission argued, in particular, that disclosure would seriously affect the Commission's decision-making process in personnel matters and would deprive the appointing authority of the possibility to obtain expert opinions given in full independence by its Legal Service. Furthermore, partial disclosure in accordance with Article 4(6) of Regulation 1049/2001(7) could not be made, as the entire content of the documents concerned the preparation of decisions in personnel matters. Furthermore, no "overriding public interest" could give rise to disclosure in accordance with Article 4(3) of the Regulation.

In his complaint to the Ombudsman, the complainant repeated his view that the Commission's response to his request for documents constituted a breach of the Commission's duty to have regard for his interests as an official. He argued, in particular, that this duty had been breached because not all relevant documents were in German, his mother tongue. He referred to a decision of the Court of First Instance in this respect(8).

With regard to the specific documents to which the Commission refused access, the complainant made two sets of comments: (i) with regard to the Commission's reference to data protection, he argued that it was not the aim of the right to data protection that he, the complainant, should be protected against the release of his personal data to himself; (ii) with regard to the Commission's reference to its decision-making process and legal advice, the complainant noted that the documents in question concerned deliberations that had been completed and that these deliberations could therefore no longer be influenced by the release of the documents concerned.

The complainant made, in summary, the following allegations:

1. The Commission's failure to provide access to the documents requested had been contrary to Regulation 1049/2001.
2. There had been undue delay in the processing of his confirmatory application.
3. The Commission had failed to respect its "duty to have regard for the interests of the official" ("Fürsorgepflicht").

The complainant claimed that the Commission should adopt a new decision on his access request and requested a complete list of all the documents to which the Commission would agree to give him access.

On 25 June 2004, the Ombudsman opened an inquiry into the first and the second allegations as well as the claim. The third allegation was inadmissible on the basis of Article 2(8) of the Ombudsman's Statute(9), as it did not appear to have been the subject of an internal complaint.

On 12 December 2004, the complainant informed the Ombudsman that he had exhausted the internal remedies regarding his third allegation that the Commission had breached its duty to have regard for his interests as an official ("Fürsorgepflicht"). He enclosed a copy of the Commission's decision on a complaint that he had made under Article 90(2) of the Staff Regulations (R/596/2004). In its decision, the Commission concluded that the complainant's Article 90(2) complaint was inadmissible. It took the view that the dispute only concerned the right of public access to documents and that it therefore did not concern the rules relating to the specific relationship between the administration and its staff. The relevant means of redress was, in the Commission's view, a complaint to either the Court of First Instance or the Ombudsman.

In his letter to the Ombudsman, the complainant asked the Ombudsman to take his third allegation up for review.

On 15 December 2004, the Ombudsman asked the Commission to submit an opinion on the complainant's allegation that the Commission's refusal of access to documents was also a breach of its duty to have regard for his interests as an official.

THE INQUIRY

The Commission's opinion

The Commission submitted the following comments, in summary.

Background

The complainant made his confirmatory application on 21 February 2004. The e-mail was registered in the administrative unit in charge of handling confirmatory applications on 2 March 2004. The deadline for replying to the complainant's confirmatory application expired on 23 March 2004. The complainant was advised on the same day that an extension of the deadline was needed in order to handle his request. The reply was sent on 20 April 2004, that is, seven days after the expiry of the extended deadline. This delay was explained by the need for inter-service consultation as well as for the need to translate the reply for the complainant.

The complaint
A - General documents available on the Commission's intranet

The administrative documents that explain the new career development review system and lay down the procedures for its implementation were posted on the Commission's intranet and are available to all members of staff. The Commission had provided the complainant with the addresses on the intranet, where the documents could be retrieved. This had been in compliance with Article 10(2) of Regulation 1049/2001(10).

The Commission's intranet sites contained all the relevant documents concerning both the career development review system and the promotion procedure and also displayed the previous rules applied to the career development review system transition exercise. They also contained additional detailed information on the career development review system, including the administrative guide on appraisal and promotion.

All these documents had been available since the first transition exercise was launched in 2003, while the new General Implementing Provisions concerning the evaluation and promotion procedures were posted on the Commission's intranet in March 2004.

B - Documents available on local intranets

The intranets of both Eurostat and DG ENTR are accessible to all Commission staff. The following additional specific information was had been available to all Commission staff: (i) the Eurostat vade-mecum on performance standards (reference period 1 July 2001 to 31 December 2002); (ii) the Eurostat vade-mecum on performance standards (reference period 1 January 2003 to 31 December 2003); (iii) 'attribution des points de priorité - lignes directives 2003' and 'attribution de points de priorité - lignes directrices 2004'. The sources of these documents also contained more technical information and links to relevant Commission or DG ADMIN pages. The intranet of DG ENTR was accessible to all Commission staff [the relevant links were provided by the Commission]. It also contained a document regarding the criteria for the allocation of priority points.

C - Availability of documents in the German language

All the different versions of the General Implementing Provisions had been translated into German.

D - 'Historic' versions of documents

No older versions of intranet pages had been archived.

E - Specific documents regarding the complainant's career development review

The complainant had used all the appeal procedures against the initial career development report, and had had access to all steps in the career development review procedure through the electronic staff information system SYSPER2. This system granted each member of staff access to his or her individual data.

The only document that had not been accessible via SYSPER2 was the consultation of the complainant's previous service, OPOCE. The paper document had therefore been copied to his personnel file.

F - Documents relating to the handling of the complaint under Article 90(2) of the Staff Regulations (R432/03)

The complainant made a complaint under Article 90(2) of the Staff Regulations on 31 July 2003. The Appointing Authority adopted a detailed decision on 24 November 2003, which the complainant received on 2 December 2003.

G - Documents which have not been disclosed to the complainant

The Commission referred to the documents outlined on page 2 of the present Decision, repeated the grounds for its refusal, which were stated in its reply to the complainant's confirmatory application, and added the following. As a data subject, the complainant had a right of access to information concerning the processing of his personal data by the Commission, in accordance with Article 13 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(11). This covered in particular "the communication in intelligible form of the data undergoing processing and of any available information as to their source". However, the right of access to one's personal data did not necessarily lead to a right of access to specific documents containing personal data, which might be covered by specific rules of confidentiality or by an exception under Regulation 1049/2001.

H - The alleged breach of the duty to have regard for the interests of the official

The "duty to have regard for the interests of the official" reflects the duty-rights relationship between the administration and its staff. In the present case, the complainant had been referred to the relevant intranet sites. Given the very comprehensive information request by the complainant ("all" available and relevant material relevant to the career development review system and promotion in all versions), the Commission's response (made under Regulation 1049/2001) could not have been more concrete. It was reasonable to expect from officials that they would themselves access the Commission's intranet sites.

The complainant's observations
The complainant's first set of observations

In his observation on the Commission's opinion, the complainant maintained his allegations. He made, in summary, the following comments.

As regards his allegations, the complainant acknowledged that he did have access to the intranet sites referred to by the Commission and that the General Implementing Provisions did exist in German. He also noted that the Commission's reference to documents relating to DG ENTR and Eurostat was "clear progress" compared to its earlier replies. However, the complainant also noted that he was ill and that his illness prevented him from having full access to all the documents. He also maintained that the Commission's services were in possession of many more relevant documents than himself and that his position in relation to his internal complaint had therefore clearly been unequal.

As regards his allegation of delay in the Commission's handling of his confirmatory application, the complainant stated that the Commission had breached Regulation 1049/2001 by counting the 15-day deadline as from the registration date of 2 March 2004. He stated that he had sent his confirmatory application on Saturday, 21 February 2004 and that the application should therefore have been considered as having arrived at the Commission on the first working day thereafter, that is, 23 February 2004. The Commission was then obliged, in accordance with Article 8 the Regulation, to deal with the application promptly and should have formally registered it on 25 February 2004, at the latest. It was therefore contrary to Regulation 1049/2001 that the Commission formally registered the application only on 2 March 2004. This, furthermore, meant that the communication by which the Commission extended the deadline was also made too late (on 23 March 2004, that is, beyond the 15-day deadline as stipulated in Article 8 of Regulation 1049/2001). The complainant furthermore stated that the Commission had failed to give valid reasons for its extension of the deadline.

With regard to the specific documents to which the complainant was refused access, the complainant referred to his previous submissions and the arguments contained therein.

The complainant's second set of observations

In light of the Commission's opinion and the complainant's observations, the Ombudsman concluded that it would be appropriate to invite the complainant to submit specific comments on the Commission's view that access to documents containing his own data could not be released. On 22 June 2005, the Ombudsman therefore invited comments from the complainant, who replied on 6 July 2005.

In his reply, the complainant argued, in summary, that Regulation 1049/2001 could not be interpreted to imply that the release of a document under that Regulation in all cases resulted in the document concerned being accessible to the public.

The complainant furthermore stated that "[i]n order to be helpful, I herewith grant, in my position as the authorised person for my own data, consent to also pass on to third persons the documents concerned by [the present inquiry], if only this can make it possible to disclose the documents to myself."

THE OMBUDSMAN'S EFFORT TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinions and observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's first and second allegations and related claims. On the basis of a reasoned analysis of the relevant issues, he therefore proposed to the Commission a friendly solution, in accordance with Article 3(5) of the Ombudsman's Statute(12). More specifically, the Ombudsman suggested to the Commission that (1) it could reconsider its refusal to give access to the specific documents concerned and thereby give access to the said documents unless it invoked, on the basis of Regulation 1049/2001, valid and adequate grounds for not doing so; and (2) it could acknowledge that its delay in handling the complainant's confirmatory application was not adequately justified. The Ombudsman pointed out that, in accordance with Article 6 of the Ombudsman's implementing provisions(13), the proposal for a friendly solution did not concern the complainant's third allegation (alleged failure of the Commission to respect its "duty to have regard for the interests of the official"), but that the Ombudsman's assessment of that allegation would be presented in the final decision closing the present inquiry.

On 1 August 2006, the Commission sent its reply to the Ombudsman's friendly solution proposal. As regards point (1) of the Ombudsman's proposal, it concluded that Article 4 of Regulation 1049/2001 applied to the entirety of the specific documents concerned by this proposal. As regards point (2) of the proposal, it acknowledged that it did not fully comply with the relevant time limits and made comments on the reasons why. In his observations on the Commission's reply, the complainant indicated that he was not satisfied with this reply and maintained his allegations.

THE DECISION

1 Allegation that the Commission's refusal to provide access to documents requested by the complainant was contrary to Regulation 1049/2001

1.1 The complainant's allegation essentially concerns two categories of documents: (i) certain specific documents relating to the complainant's internal Article 90(2) complaint (R/432/03)(14); and (ii) "all documents" of a general nature issued by the Commission and/or its services in relation to the Commission's new career development review system.

1.2 With regard to the second category of documents requested by the complainant, the Ombudsman recalls the following remarks he made in his friendly solution proposal. The complainant's relevant request for documents was formulated in general terms, and the complainant was in fact invited, by e-mail sent from DG ADMIN on 12 January 2004, to clarify his request. The Commission thus complied with its duty under Article 6(2)(15) of Regulation 1049/2001. Furthermore, by giving the complainant extensive information on its intranet sites, the Commission appears to have fulfilled its obligation to grant access to the documents requested, in accordance with Article 10(2)(16) and Article 12(1)(17) of Regulation 1049/2001. In addition, Regulation 1049/2001 does not oblige the institution concerned to provide translations of documents or to create lists of documents in view of the content of a particular application for access to documents. With regard to the complainant's remark that his access to the documents through the various electronic sources referred to by the Commission was hampered due to illness, it is not clear that the complainant had made appropriate approaches to the Commission in order to obtain a formal response on that issue, nor has the complainant produced any specific information in that regard during the present inquiry. In light of the foregoing, the Commission's response to the complainant's request for "all documents" of a general nature issued by itself and/or its services in relation to the Commission's new career development review system did not involve a violation of Regulation 1049/2001, and, therefore, there appeared to be no maladministration on the Commission's part regarding this aspect of the case.

1.3 In his observations on the Commission's reply to the Ombudsman's friendly solution proposal, the complainant stated that this proposal did not cover all the documents to which he wanted access. He referred to guidelines for staff assessments of each directorate-general (which were not all available on the websites to which the Commission had referred him), and all versions that ever existed of the assessment grids, in respect to which the Commission had referred to technical difficulties and asked the complainant for more precise information. Relatedly, the Ombudsman notes that his friendly solution proposal did not cover these documents for the reasons indicated in point 1.2 above.

1.4 In light of the above, the Ombudsman concludes that the complainant's allegation as regards his request for access to all documents of a general nature issued by the Commission and/or its services in relation to the Commission's new career development review system has not been substantiated.

1.5 With respect to the first category of documents relating to the complainant's allegation, the Commission has invoked the exceptions of Article 4(1)(b), 4(2) second indent and 4(3) second subparagraph of Regulation 1049/2001.

The exception of Article 4(1)(b) of Regulation 1049/2001

1.6 The Commission applied the exception of Article 4(1)(b), concerning the protection of an individual's privacy, on the ground that the documents at issue contained personal data of the complainant. In his friendly solution proposal, the Ombudsman (a) noted the relevant provisions of Regulation 45/2001, in particular the one of Article 5(d) concerning the lawful processing by the institutions of personal data on the basis of the data subject's relevant unambiguous consent; and (b) informed the Commission of the complainant's consent granted in his letter to the Ombudsman of 6 July 2005. The Ombudsman stated that, in these circumstances, it could be considered an instance of maladministration to invoke personal date protection as a ground for refusing to grant the complainant access to the requested documents that are withheld by the Commission.

In his a bove-mentioned letter of 6 July 2005, the complainant, a lawyer, first explained why he generally disagrees with the Commission's above-mentioned view that personal data protection prevents disclosure under Regulation 1049/2001 of documents containing an applicant's personal data, and proceeded to state that:

"[i]n order to be helpful, I herewith grant, in my position as the authorised data subject, consent to also pass on to third persons the documents here in dispute, if only this can make it possible to disclose the documents to myself."

The Commission , in its reply to the Ombudsman's friendly solution proposal, noted that a data subject "may consent to processing (here disclosure) under Article 5(d) of Regulation 45/2001", but that

"[t]he Commission ... considers that no such consent was ever given. Even if one were to read the complainant's letter of 6 July 2005 as implying consent, this would not be sufficient since according to Article 5(d), personal data may be processed only if the data subject has unambiguously given his consent - whereas the complainant's letter does not mention Regulation 45/2001 at all. Furthermore, the letter does not identify the document to which the complainant's arguments allegedly apply."

1.7 The Ombudsman finds that the Commission's reading of the complainant's above-quoted statement is not reasonable. First, it should have been clear to the Commission that the complainant's statement clearly referred to the specific documents to which the Commission had refused him access, on the basis of Article 4(1)(b) of Regulation 1049/2001. With regard to the Commission's view that the complainant's above-quoted statement did not constitute "unambiguous" consent, because it did not refer to Regulation 45/2001, the Ombudsman notes that for a consent to be unambiguous, within the meaning of Article 5(d) of Regulation 45/2001, it is not required that it be accompanied by a reference to this provision or even to this Regulation. Moreover, the complainant's statement was sufficiently clear, expressed explicitly his consent to the communication of the documents in question to third persons and was given precisely in response to the Commission's argument that granting public access to these documents would undermine the protection of the complainant's privacy, in particular in accordance with Regulation 45/2001.

1.8 In light of the foregoing, the Ombudsman considers that, independently of whether the Administration may apply the exception of Article 4(1)(b) of Regulation 1049/2001 when it comes to documents containing the applicant's own personal data, the Commission's continued reliance on this exception in the case at hand, even after the complainant's letter of 6 July 2005 had been communicated to it is not lawful. This constitutes an instance of maladministration.

The exception of Article 4(2), second indent, of Regulation 1049/2001

1.9 The Commission also referred to Article 4(2), second indent, with respect to the draft decision on the complainant's Article 90(2) complaint and the relevant opinion of its Legal Service. Under this provision, the institutions shall refuse access to a document "where disclosure would undermine the protection of ... court proceedings and legal advice", unless there is an overriding public interest in disclosure.

1.10 It is well settled that the examination required for the purpose of processing a request for access to documents must be specific in nature. First, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception. Such application may, in principle, be justified only if the institution has previously assessed, firstly, whether access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, whether there was no overriding public interest in disclosure. Further, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a concrete manner and must be apparent from the reasons given for the decision(18). An assessment of documents by reference to categories, rather than on the basis of the actual information contained in those documents, is, in principle, insufficient, since the examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents(19).

In light of the above, the fact that a requested document is a legal opinion, or refers to elements of a legal opinion, cannot, in itself, justify application of the exception of Article 4(2) second indent(20).

In addition, the exceptions provided for in Article 4 of Regulation 1049/2001 must be interpreted and applied strictly(21).

1.11 In the present case, the Commission, initially merely stated, in support of its application of the exception laid down in Article 4(2), second intend, that "[d]isclosure of the opinion of the Legal Service would put at risk the independence of legal advice given on staff cases. It would deprive the Appointing Authority of the possibility to obtain expert opinions given in full independence by the Legal Service". In his friendly solution proposal, the Ombudsman accepted that the independence of the opinion of the Commission's legal service can constitute, in certain cases, an interest to be protected(22). However, the Commission had failed to explain how, in the circumstances of the present case, disclosure of the legal opinion in question, which concerned a draft decision on the complainant's Article 90(2) complaint, would endanger the independence of this opinion. Taking into account the principles mentioned in point 1.10 above, the Ombudsman, therefore, considered that the Commission's above explanation was inadequate.

1.12 In the relevant part of its reply to the Ombudsman's friendly solution proposal, the Commission, first, noted that, despite the fact that the reasoning contained in its challenged decision was expressed in general terms, its refusal to provide access was based on a concrete assessment of the contents of the document concerned. Based on that assessment, and after reconsideration, the Commission maintained that the document concerned is covered by the exception provided for under Article 4(2) second indent of Regulation 1049/2001. It contains the opinion of the Legal Service on the draft decision rejecting the applicant's complaint R/432/03. The Commission could not refer in more detail to the content because doing so would deprive the exception of its very purpose. Disclosure of the legal opinion would undermine the protection of legal advice as defined in the case-law of the Community Courts: in order to guarantee that these opinions are delivered in complete independence and objectivity, it is essential that their confidentiality be preserved. This is particularly true in as sensitive an area as the annual evaluation of officials in their career development report.

The Commission also noted that in staff cases, members of its Legal Service are called on to assess the competing merits of often emotional and sensitive allegations made by and against staff members and their institutional hierarchy. It is the role of the Legal Service to advise the Appointing Authority, not the complainant, and in order to perform that role properly, it is vital that it can give advice candidly without the risk of individual members of the Legal Service being drawn into direct and possibly personal conflict with a complainant.

As regards the draft decision of the Appointing Authority, the Commission stated that this draft, when compared to the final decision, reflects the internal discussions and deliberations, including the Legal Service's contributions, which, as explained above, require open and free internal debate in order to ensure the quality of the decision reached. Therefore, this draft is also covered by the exception provided for under Article 4(3) second subparagraph of Regulation 1049/2001.

Finally, the Commission considered that there was no overriding public interest in disclosure.

In this regard, the complainant has observed that the Commission's approach essentially implied that all legal opinions would always be covered by the exceptions concerned, which was not the intention of the Community legislator adopting Regulation 1049/2001. The complainant also considered it unjustified for the Commission not to have granted partial access to the documents concerned.

1.13 The Ombudsman notes that, in its reply to his friendly solution proposal, the Commission has sought to remedy the shortcomings contained in its reasoning of the challenged refusal (see point 1.11 above) and to demonstrate, in a cogent way, that the "legal advice" exception to access was, indeed, applicable. Therefore, it has to be examined whether this has been adequately demonstrated.

1.14 As a preliminary matter, it may be remarked that the Community legislator did not treat documents containing legal advice, such as the opinion of the Commission's Legal Service here at issue, in the same way as other documents containing "opinions for internal use as part of deliberations" within an institution. While the latter category of documents is concerned by the exceptions laid down in Article 4(3) of Regulation 1049/2001, which covers both on-going and completed decision-making processes, the former category is concerned specifically by the exception provided for in Article 4(2), second indent, of this Regulation. Under Article 4(3), access may be refused if disclosure would seriously undermine the institution's decision-making process, while, pursuant to Article 4(2), second indent, access may be refused where disclosure would (simply, not necessarily "seriously") undermine the protection of legal advice. The latter provision implies that documents containing legal opinions given to an institution may be entitled to protection(23). This protection is not limited in time by Regulation 1049/2001. Also taking into account of the exception of Article 4(3) second subparagraph, it appears that it may come into play even after the institution's relevant decision-making process has been completed, as in the case at hand.

1.15 In its reply to the Ombudsman's friendly solution proposal, the Commission noted that it could not refer in more detail to the content of the opinion of its Legal Service, because doing so would deprive the exception relied upon of its very purpose. It went on to make the following general arguments: (a) in order to guarantee that legal opinions are delivered to it in complete independence and objectivity, it is essential that their confidentiality be preserved(24); (b) this is particularly true in as sensitive an area as the annual evaluation of officials in their career development report; (c) in staff cases, it is the role of the Legal Service to advise the Appointing Authority, not the official(s) complaining against the Administration; (d) in order to perform that role properly, it is vital that it can give advice candidly without the risk of individual members of the Legal Service being drawn into direct and possibly personal conflict with a complainant(25).

In relation to the foregoing statements made by the Commission, the Ombudsman recalls that that the general nature of the statement of reasons on which a refusal of access is based, as well as its brevity or its formulaic character, can be indicative of failure to carry out a concrete examination only where it is objectively possible to give the reasons justifying the refusal of access to each document, without disclosing the content of the document or an essential aspect of it and thereby depriving the exception of its very purpose(26).

1.16 The Ombudsman notes that the Commission has emphasised, in particular, that, in staff cases, it is the role of its Legal Service to advise the Appointing Authority, not the official complaining against a decision made by the Administration. The Ombudsman understands this statement, in conjunction with the Commission's above statements (a) and (b), as indicating that the opinions of its Legal Service relating to Article 90(2) complaints and to draft decisions concerning such complaints might constitute useful, favourable advice to the complainants, if disclosed to them. Moreover, the Commission has made a reference to Case 84/03 Turco v Council. In that case, which concerned a refusal to grant access to the opinion of the Council's Legal Service concerning a proposal for a Community Directive, the Council relied on the same exception invoked here by the Commission and argued, in particular, that disclosure of such legal advice could give rise to lingering doubts as to the lawfulness of the legislative act in question. The Court of First Instance held that the generality of the Council's reasoning was justified by the fact that giving additional information would deprive the exception relied upon of its effect. Furthermore, it accepted the above-mentioned argument made by the Council and upheld its challenged refusal.

1.17 In light of the above, the Ombudsman accepts that disclosure of a legal opinion such as the one at issue, which apparently discussed issues pertaining to the complainant's article 90(2) complaint and the draft decision on it, could contain elements undermining the relevant final decision of the Appointing Authority. Moreover the Community Administration acts, in this context, as party in an employment dispute, which may subsequently lead to an action before the Community courts or to a complaint to the European Ombudsman. The Administration, thus, has a legitimate interest and is justified in protecting such legal advice and in refusing its disclosure. Moreover, in view of the underpinnings of this protection, it is not required to make particular references to the content of the requested legal opinion, since this would deprive the exception relied upon of its useful effect. Furthermore, in the case at hand the complainant does not appear to have made specific and duly substantiated arguments to the effect that there was an overriding public interest in disclosure(27).

1.18 Hence, the Ombudsman considers that, following his friendly solution proposal and the Commission's better reasoned reply to it, the latter's refusal to give access to the legal opinion at issue no longer appears to amount to an instance of maladministration(28).

Exception of Article 4(3) second subparagraph

1.19 The Commission has relied on the exception laid down in Article 4(3) second subparagraph of Regulation 1049/2001 for refusing access to certain documents concerning the evaluation of the complainant as a Commission official and the assessment of his relevant Article 90(2) complaint. Initially, the Commission merely stated that disclosure of these documents "would seriously affect the Commission's decision-making process in personnel matters", without giving any specific reasons for this conclusion. In his friendly solution proposal, the Ombudsman took the view that the Commission has failed to give adequate reasons for its application of the above exception.

1.20 In the relevant part of its reply to the Ombudsman proposal, the Commission made the following comments. The complainant worked, throughout the reference period, first at OPOCE and subsequently at DG ENTR. Two heads of unit in these services assessed the complainant, and certain documents requested by him refer to this evaluation procedure. As with the case of other documents drawn up in the context of a complaint regarding the evaluation procedure of an official, the contributions of the services concerned contain sensitive information falling under the obligation of professional secrecy. The documents concerned, drawn up in the course of the preparation of the final decision of the Appointing Authority, contain the opinions of relevant services as regards the contested evaluation. The free and complete exchange of opinions of the services involved prior to the adoption of the final decision is indispensable and fundamental to the Appointing Authority's decision-making process in this area. If all incoming contributions and deliberations at this preliminary stage were to be disclosed, the Appointing Authority would be deprived of any internal possibility to freely discuss in written form the pros and cons of a decision. This would seriously undermine its decision-making process. Therefore, Article 4(3), second subparagraph applies.

As regards the draft decision of the Appointing Authority, the Commission stated that this draft reply, when compared to the final decision, reflects the internal discussions and deliberations, including the Legal Service's contributions, which, as explained above, require open and free internal debate in order to ensure the quality of the decision reached. Therefore, this draft is also covered by the exception provided for under Article 4(3) second subparagraph of Regulation 1049/2001.

In his relevant observations, the complainant did not accept these explanations. He noted that the Commission's position essentially implied that all internal opinions would always be covered by the exceptions concerned, which was not the intention of the Community legislator adopting Regulation 1049/2001. Regarding the decision-making processes, the complainant considered that the Commission not only had to argue but also to demonstrate that the decision-making process would be seriously undermined.

1.21 As a preliminary matter, the Ombudsman recognises the importance of the Community Administration's interest in adequately protecting its decision-making process in the sensitive area of the evaluation of its officials. Imposing a duty on the Administration to grant, at a time when this procedure is still on-going, requests for access to documents drawn up for internal use for the purposes of this procedure could actually cause undue disruptions in the evaluation procedure and, thus, create an appreciable risk of the above protected interest being seriously undermined.

Nevertheless, the situation changes significantly when the above procedure is completed and the communication of the results and relevant decisions has taken place. The risk of disruption of the procedure exists no more. Moreover, the officials contributing to the exercise by expressing their opinions on their colleagues under evaluation are presumed to be persons of honesty and integrity, performing the relevant administrative function in accordance with high professional standards and with great sense of responsibility and accountability. Nothing less could be expected of, and required from, them.

1.22 In the present case, the Commission refused access to certain documents concerning the contested evaluation of the complainant and containing relevant opinions for internal use. In light of the above, the Ombudsman does not accept the Commission's argument that non-disclosure served the need of protecting the "free and complete exchange of opinions of the services involved," and the "internal possibility to freely discuss" issues relating to the complainant's evaluation and "the pros and cons of a decision" on these issues. Upholding such an argument would effectively lead to the conclusion that the Administration may, in general, refuse disclosure of documents containing opinions for internal use, even after the relevant decision has been taken, on the ground that disclosure would affect adversely its interest in having free internal discussions and deliberations. This approach clearly cannot be squared with the principle of strict interpretation of the exception laid down in Article 4(3) second subparagraph; in fact, it would amount to little less than a broad license for non-disclosure of such documents, in obvious disregard of the intent of the Community legislator who enacted Regulation 1049/2001.

As regards the draft decision on the complainant's Article 90(2) complaint, the Commission justified the application of the exception by stating that this draft reply, when compared to the final decision, reflects the internal discussions and deliberations, which require an open and free internal debate. As explained above, this line of reasoning is not convincing.

1.23 In light of the above, the Ombudsman considers that the Commission failed to provide valid and adequate grounds justifying the application to certain documents of the exception set out in Article 4(3) second subparagraph of Regulation 1049/2001. This constitutes an instance of maladministration.

1.24 The Ombudsman recalls that he has already made a reasoned friendly solution proposal in this case. Furthermore he notes that he has dealt with a considerable number of complaints submitted by the complainant against the Commission. These cases demonstrate a more general and intense dispute between them, in the context of which the institution has strongly stood by, and insisted on, its (often principled) positions, even where the Ombudsman, on the basis of a reasoned analysis, has not considered them justified. The Ombudsman also regrets that the intensity of this dispute between the Commission and the complainant and the breakdown in communications that it implies has, for all practical purposes, made it impossible to arrive at a reasonable solution concerning this complaint. In view of the above, and also taking into account the way the Commission has, in the context of the present inquiry, dealt with the interpretation and application of the exceptions laid down in Article 4 (1)(b) and (3) second subparagraph of Regulation 1049/2001, the Ombudsman does not find it opportune to further pursue the case by making a draft recommendation regarding the instances of maladministration identified in points 1.8 and 1.23 of the present decision. The Ombudsman will, thus, make a relevant critical remark below.

2 Allegation about undue delay in the processing of the complainant's confirmatory application

2.1 As regards this allegation, the Commission, in its opinion, acknowledged that it replied to the confirmatory application a few days after the expiry of the extended deadline. It explained this delay by reference to the need for inter-service consultation as well as for the need to translate the reply to the complainant.

In his friendly solution proposal, the Ombudsman noted that he cannot exclude that special circumstances could justify non-observance of the deadline set out in Article 8 of Regulation 1049/2004. In the present case, the Commission had, however, referred to circumstances that appeared to be common to the handling of public access applications, that is, the need for inter-service consultation and translation. The Ombudsman therefore took the view that the Commission had failed to refer to any special circumstances that could justify the delay here concerned. Hence, this delay was likely to constitute an instance of maladministration. The Ombudsman thus proposed that the Commission could acknowledge that its delay in handling the complainant's confirmatory application was not adequately justified.

2.2 In its reply to this part of the Ombudsman's proposal for a friendly solution, the Commission acknowledged that it did not fully comply with the time limits. In this regard, it explained that the handling of the confirmatory application had been time consuming, due to its scope and its connection with an administrative procedure. The staff of the Secretariat-General handling the application had to consult different other departments and to obtain detailed information from them. The delay for translating the reply was also longer than expected. It added that the Ombudsman's observation that inter-service consultations and translations are common was correct. However, in this particular case, there had been an accumulation of delaying factors. Even if these circumstances may not justify the failure to comply with the time limits, the Commission deemed it appropriate to explain why an additional delay occurred.

In his observations, the complainant maintained his allegation and noted that the Commission had not even apologised for its failure to respect the relevant deadlines.

2.3 The Ombudsman takes note of the Commission's statements about its difficulties in dealing with the complainant's confirmatory application within the time limits set out in Regulation 1049/2001. He also understands that the Commission, in essence, accepted his relevant conclusion in his friendly solution proposal and conceded that circumstances such as those of the case at hand might not adequately justify a failure to comply with these time limits. The Ombudsman, thus, does not find it justified to further pursue this aspect of the case. However, he would like to encourage the Commission to take appropriate organisational steps to ensure that confirmatory applications of the kind here concerned are replied to in a timely manner. The Ombudsman will, thus, make a relevant further remark below(29).

3 The allegation of a breach of the "duty to have regard for the interests/welfare of the officials"

3.1 The complainant alleged that the Commission's refusal of access to documents was also a breach of its duty to have regard for his interests as an official.

3.2 The Ombudsman notes that this duty, as interpreted by the case-law, refers to the "balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants."(30) The present case concerns the complainant's right to have access to documents, as provided for in Regulation 1049/2001 and not under the Staff Regulations. This duty does not appear to impose on the Administration, in circumstances such as those of the present case, additional obligations to grant access to documents. Thus, the Ombudsman concludes that there has been no instance of maladministration corresponding to the complainant's above allegation.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remarks:

Refusal to grant access to documents

1. In light of his above findings in points 1.6 - 1.8, the Ombudsman considers that, independently of whether the Administration may apply the exception of Article 4(1)(b) of Regulation 1049/2001 when it comes to documents containing the applicant's own personal data, in the case at hand, the Commission's continued reliance on this exception, even after the communication to it of the complainant's letter of 6 July 2005 which essentially contained a relevant statement of consent for disclosure, is not lawful. This constitutes an instance of maladministration.
2. In light of his above findings in points 1.19 - 1.24, the Ombudsman considers that the Commission failed to provide valid and adequate grounds justifying the application to certain documents of the exception set out in Article 4(3) second subparagraph of Regulation 1049/2001. This constitutes an instance of maladministration.

The President of the European Commission will also be informed of this decision.

FURTHER REMARK

The Ombudsman takes note of the Commission's statements about its difficulties in dealing with the complainant's confirmatory application within the time limits set out in Regulation 1049/2001. In this respect, the Ombudsman would like to encourage the Commission to take appropriate organisational steps to ensure that confirmatory applications of the kind here concerned are replied to in a timely manner.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2001 L 145, p. 43.

(2) Article 10(2) - "Access following an application" - provides as follows: "[i]f a document has already been released by the institution concerned and is easily accessible to the applicant, the institution may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document".

(3) See lists (1)-(3) and (1)-(4) above.

(4) "The institution shall refuse access to a document where disclosure would undermine the protection of: privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data".

(5) "Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

(6) "The institutions shall refuse access to a document where disclosure would undermine the protection of: (...) - court proceedings and legal advice."

(7) "If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released."

(8) Case T-118/99 Brighina v Commission [2001] ECR-SC I-A-25 and II-97.

(9) "No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired."

(10) Article 10 (2) - "Access following an application" - provides as follows: "[i]f a document has already been released by the institution concerned and is easily accessible to the applicant, the institution may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document."

(11) OJ 2001 L 8, p.1.

(12) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, OJ 1994 L 113, p. 15.

(13) Adopted on 8 July 2002 and amended by decision of the Ombudsman of 5 April 2004, available at http://www.euro-ombudsman.eu.int/lbasis/en/provis.htm.

(14) These documents were the following: (1) minutes of a meeting of the equality committee (PEA) relating to the complainant's internal complaint under Article 90(2) of the Staff Regulations (R/432/03); (2) draft documents relating to the Director-General's decision as appeal assessor; (3) draft documents relating to the granting of priority points; (4) a statement from OPOCE relating to the assessment of the complainant; (5) a statement from DG ENTR relating to the complainant's internal complaint R/432/03; (6) a draft decision on the complainant's internal complaint referred to under point (5) above; (7) a legal opinion of the Commission's Legal Service in relation to the draft decision referred to under point (6) above.

(15) "If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents."

(16) "If a document has already been released by the institution concerned and is easily accessible to the applicant, the institution may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document."

(17) "The institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned."

(18) See Case T-36/04, API v Commission judgment of 12 September 2007 [not yet published in the ECR], paragraph 54 (citing cases).

(19) See Case T-36/04, op.cit., paragraph 56.

(20) Cf. Case T-84/03, Turco v Council, [2004] ECR II-4061, paragraph 71; Case T-93/04 Kallianos v Commission, judgment of 17 May 2006 [not yet published in the ECR], paragraph 91.

(21) See Case T-36/04, API v Commission judgment of 12 September 2007 [not yet published in the ECR], paragraph 54 (citing cases).

(22) Cf. Case T-84/03 Turco v Council, cited above, paragraph 79.

(23) Cf. Case T-84/03, Turco v Council, [2004] ECR II-4061, paragraph 73.

(24) The Commission made a relevant reference to paragraph 74 in Case T-84/03, cited above. In this regard the Ombudsman notes, however, that the Commission's broad statement does not reflect this or any passage of the above judgment. This statement implies that the exception of Article 4(2) second indent would be automatically applicable to all legal opinions given to the Commission. However, it cannot be considered that that this exception covers manifestly and in their entirety the documents of the above category. Hence, the result sought by the Commission is not consonant with the rules referred to in point 1.10 of the present decision.

(25) This argument cannot justify the application of the exception in question. Even assuming that the above possibility is relevant to the protection of legal advice, within the meaning of Article 4(2), second indent, the risk referred to by the Commission should be reasonably foreseeable, not purely hypothetical, and assessed by the institution, in a concrete manner, including the issue whether partial access could avoid such a problem. This is not the present case.

(26) See Case T-36/04, API v Commission judgment of 12 September 2007 [not yet published in the ECR], paragraph 67.

(27) Cf. Case T-84/03, Turco v Council, [2004] ECR II-4061, paragraphs 83-85.

(28) In this regard, the Ombudsman does not exclude the possibility that parts of such a legal opinion (e.g. an introductory part referring to the subject-matter of the Article 90(2) complaint) might be disclosed without undermining its protection. It seems that, here, the Commission has examined the possibility of partial disclosure and has rejected it. Taking into account the circumstances of the case and his remark in point 1.24 below, the Ombudsman does not consider it justified to pursue the matter by making an inspection of the document in question, with a view to examining the reasonableness of the Commission's assessment.

(29) In his observations on the Commission's reply, the complainant appeared to encourage the Ombudsman to conduct a more general examination of the Commission's procedural handling of access applications made under Regulation 1049/2001. If the Ombudsman considers it justified, possibly also taking into account the Commission's follow-up to his further remark below, he may envisage initiating a relevant own-initiative inquiry in the future.

(30) See. e.g., Case 298/93 P, K v Court of Justice, [1994] ECR I-3009, paragraph 38: "The administration's duty to have regard to the welfare of officials […] reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. A particular consequence of this balance is that when the authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service but also those of the individual concerned."