Strasbourg, 31 January 2007

Dear Mr X,

On 9 May 2005, you made a complaint to the European Ombudsman concerning the handling of a request for access to documents by the European Anti-Fraud Office (OLAF).

On 19 May 2005, I forwarded the complaint to the Director-General of OLAF. OLAF sent its opinion on 9 August 2005. I forwarded it to you on 29 August 2005 with an invitation to make observations, which you sent on 16 September 2005.

On 21 September 2005, I informed you that in view of the fact that the subject of the present complaint was very similar to that of a further complaint lodged by you against the European Investment Bank (complaint 1776/2005/GG - Confidential), I considered it appropriate to deal with both complaints at the same time.

On 19 December 2005, I addressed a proposal for a friendly solution to OLAF. You were informed accordingly the same day.

OLAF sent its opinion regarding this proposal on 31 January 2006. I forwarded it to you on 14 February 2006 with an invitation to make observations, which you sent on 30 March 2006.

On 29 May 2006, I addressed a request for further information to OLAF. I informed you accordingly the same day.

On 30 June 2006, OLAF replied to my request for further information. I forwarded this reply to you on 10 July 2006 with an invitation to make observations, which you sent on 25 August 2006.

On 21 September 2006, I addressed a second request for further information to OLAF. I informed you accordingly the same day. OLAF sent its reply on 26 October 2006, and I forwarded to you on 14 November 2006 for your observations, which you sent on 18 December 2006.

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

THE COMPLAINT

Background

According to the complainant, a German lawyer, the background to the present case is, in summary as follows:

In the early 1990s, two companies to an international group (one from Sweden and one from Germany) took part in a project in Lesotho (the "Lesotho Highlands Water Project"), which was supported by funds provided by the EU, including funds made available by the European Investment Bank ("EIB"). Prior to the award of the relevant contracts, the two companies had hired a local consultant to advise them on the project and to help them acquire local knowledge. It was subsequently found that this consultant, who had also advised other companies, was acting in consort with the head of the Lesotho procurement authority and that at least some of the monies paid to the consultant by some of his clients as consultancy fees had been passed on to the contracting authority. The head of the procurement authority was subsequently found guilty of corruption by a court in Lesotho and sentenced to a term in prison.

The group had been made aware of the alleged bribery case in 1998 and had immediately and fully co-operated with the Lesotho authorities. In return for its offering information on a voluntary basis about the project, the group had been granted immunity from prosecution by the Director of Public Prosecutions in Lesotho. The group had a zero tolerance policy as far as any form of bribery and corruption was concerned.

In April 2000, the European Commission and the EIB decided to carry out an audit into the matter. The European Anti-Fraud Office ("OLAF") was informed of this audit. Based on the conclusions of the audit report, the OLAF investigation was closed.

In June 2003, and on the basis of new information, OLAF opened a new investigation concerning this matter, addressing itself to a Swiss company belonging to the group.

In a letter of 16 September 2004, the complainant asked for access to all the documents on OLAF's file concerning the "Lesotho Highlands Water Project"(1). This request was made on the basis of 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(2) ("Regulation 1049/2001").

In its reply of 7 October 2004, OLAF rejected this request, citing three exceptions in Regulation 1049/2001 on which its decision was based: (1) the protection of the purpose of inspections, investigations and audits (Article 4(2), third indent, of the Regulation), "as the investigation is still on-going"; (2) the protection of privacy and the integrity of the individual, in accordance with Community legislation regarding the protection of personal data (Article 4(1)(b) of the Regulation); and (3) the commercial interests of natural or legal persons (Article 4(2), first indent, of the Regulation). In reply to a question put to it to that effect by the complainant in his letter of 16 September 2004, OLAF also confirmed that it had opened a new investigation in 2003.

On 2 November 2004, the complainant lodged a confirmatory application, arguing that access should at least be given to the 2000 audit report. The complainant stressed that, without access to this report, his client was unable to assess to what extent OLAF was now in possession of new information that warranted the opening of a new investigation.

In its reply of 30 November 2004, OLAF confirmed its position, with particular reference to Article 4(2), third indent, of Regulation 1049/2001. As regards the 2000 audit report, OLAF stressed that it contained preliminary results, opinions and conclusions regarding the initial investigation. OLAF pointed out that this initial report as well as new information it had received in the interim formed the basis for further inquiries that were underway at that time. It added that the documentation in the case file consisted of the evidence gathered so far, and that this evidence was the subject of further analysis. OLAF submitted that disclosure of the documents on its file would disrupt the investigation currently being undertaken. According to OLAF, it was not possible to grant partial access either, since the administrative burden involved would be disproportionate.

Complaint 1450/2005/GG (Confidential)

On 29 March 2005, a complaint against OLAF's decision was submitted to the European Ombudsman by the present complainant (complaint 1450/2005/GG - confidential). However, the present complainant made it clear that the complainant in that case was to be his client, the Swiss company. Article 195 of the EC Treaty stipulates that a complaint can be submitted to the Ombudsman by any EU national or by any natural or legal person residing or having its registered office in the EU. On 2 May 2005, the Ombudsman therefore rejected the complaint, given that the complainant did not belong to the category of persons who are entitled to submit complaints to the Ombudsman pursuant to Article 195 of the EC Treaty.

The present complaint

On 9 May 2005, the lawyer who had submitted complaint 1450/2005/GG renewed the complaint, pointing out that he himself was to be regarded as the complainant. This letter was therefore registered as a new complaint (1777/2005/GG - confidential).

The complainant alleged that OLAF had wrongly failed to grant access to its file and, in particular, to the report resulting from the audit carried out in 2000 and claimed that such access should be granted. In the complainant's view, Article 4(2), third indent, of Regulation 1049/2001 could not be interpreted so widely as to encompass investigations that had already been completed. Moreover, the protection was, in any event, no longer justified on the basis of the contents of the document concerned (Article 4(7) of Regulation 1049/2001). The complainant thus argued that access should at least be given to those documents that were no longer directly relevant to the current investigation, such as the 2000 audit report.

The complainant stressed that it was important to understand what new evidence had come to light that justified the re-opening of OLAF's investigation. This was necessary in order to help the group to defend itself.

THE INQUIRY

OLAF's opinion

In its opinion, OLAF made the following comments:

The EU had been involved in the relevant project in Lesotho since the early 1980s.

An independent audit had been carried out in April 2000 at the request of the EIB and the Commission. This audit had concluded that no specific or direct misuse of EIB funds had been discovered but that it was likely that contractors in receipt of EIB funds had made payments to those running the project in exchange for favours.

In June 2003, OLAF had received new information based on the judicial investigation in Lesotho. This information had revealed that funds from the EIB and the European Development Fund had been misused. As a result, an OLAF investigation had been opened.

It was important to distinguish between the public's right of access to documents pursuant to Regulation 1049/2001 and the right of access to the file by a person concerned in the matter. As regards the former, access had to be granted unless the document in question was covered by one of the exceptions listed in Article 4 of Regulation 1049/2001. In contrast, a person concerned by national judicial proceedings had a right of access to the file, in accordance with the applicable national procedural rules. It was in that context that the person concerned had rights of access related to his rights of defence, which members of the public did not have. The complainant's argument that he was entitled to access on account of his need to defend his client was therefore irrelevant to the analysis under Regulation 1049/2001.

Since there were currently national judicial proceedings underway in Lesotho, access to the file was controlled by its procedural rules. The complainant had the possibility of approaching the authorities of Lesotho to request the right of access to the file. It was up to those authorities to decide whether and when access should be granted.

Finally, OLAF's legal framework did not provide for any right of access to the file of a person concerned by an OLAF investigation.

OLAF was unable to disclose the audit report from 2000 or "any of the documents in the investigation file" on the grounds of Article 4(2), third indent, of Regulation 1049/2001. Disclosure would be harmful to the ongoing OLAF investigation, as well as to the investigation by the Lesotho judicial authorities into this matter. As already explained in the reply to the confirmatory application for access, granting access would reveal the evidence in OLAF's possession and its investigation strategies.

The audit report contained preliminary results, opinions and conclusions of the initial investigation and was one of the elements which formed the basis for further inquiries currently undertaken by OLAF and the Lesotho authorities concerning this matter.

The complainant's observations

In his observations on OLAF's opinion, the complainant stressed that, as regards the law governing access to OLAF's files, there were (to the best of his knowledge) no pending procedures against the group in Lesotho. The complainant added that there was a legally binding undertaking from the Director of Public Prosecutions in Lesotho not to institute proceedings against the group(3). He stressed that, irrespective of these facts, the statement that the question of access to OLAF's file was influenced or even governed by the law of Lesotho was preposterous. In the complainant's view, the activities of the Community institutions were governed by Community law.

The complainant strongly objected to OLAF's opinion to the extent that it implied that, due to the lack of an express provision, there was no right of access to OLAF's file for persons concerned by OLAF's investigations. In the complainant's view, such a position would manifestly contradict fundamental rights as well as Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(4). The complainant made detailed comments, both as regards Community law and with respect to the European Convention on Human Rights, to support his view that persons subject to an OLAF investigation had a right of access to their own file and that the group should therefore be granted access to OLAF's file.

As regards Regulation 1049/2001, the complainant recalled the well-established case-law of the Community courts according to which exceptions had to be interpreted narrowly. The complainant submitted that it was very unlikely that disclosure of each and every document in OLAF's file would be harmful to the investigation.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

The Ombudsman's proposal for a friendly solution

After careful consideration of OLAF's opinion and the complainant's observations, the Ombudsman was not satisfied that OLAF had responded adequately to the complainant's arguments.

This view was based on the following considerations:

1. The Ombudsman considered it appropriate to deal with a number of preliminary issues before examining the complainant's allegation and claim.

Preliminary issues

2. The Ombudsman considered that OLAF's argument that a distinction needs to be made between (1) the public's right of access to documents pursuant to Regulation 1049/2001 and (2) the right of access to the file by a person concerned in the matter was correct. In the present case, the complainant's application for access to documents of 16 September 2004 and his confirmatory application of 2 November 2004 had clearly been based on Regulation 1049/2001. OLAF's replies to these applications had also been based on the said Regulation. Given that the complainant had alleged, in his complaint, that OLAF's decision to reject the request for access was incorrect, the Ombudsman's examination had therefore to be limited to ascertaining whether that decision found a sufficient basis in Regulation 1049/2001. There was therefore no need, in the present inquiry, to deal with the arguments submitted by the complainant to support his view that persons subject to an OLAF investigation should have a right of access to their own file.

3. In his complaint, the complainant stressed that, to help the group defend itself, it was important to understand what new evidence had come to light that justified the re-opening of OLAF's investigation. In its opinion, OLAF submitted that the complainant's argument that he was entitled to access on account of his need to defend his client was irrelevant to the analysis under Regulation 1049/2001. Given that Regulation 1049/2001 does not require an applicant to give any reasons to justify his request for access to documents, the Ombudsman took the view that there was no need to consider the purpose pursued by the complainant with his request for access.

4. In its opinion, OLAF took the view that, since there were currently national judicial proceedings underway in Lesotho, access to the file was controlled by the procedural rules of this country. OLAF added that the complainant had the possibility of approaching the authorities of Lesotho to request the right of access to the file. According to OLAF, it was up to those authorities to decide whether and when access should be granted. In his observations, the complainant submitted that the statement that the question of access to OLAF's file was influenced or even governed by the law of Lesotho was preposterous. In the complainant's view, the activities of the Community institutions were governed by Community law.

5. The Ombudsman noted that the present case concerned a request for access to OLAF's file, and not a request for access to the file of the Lesotho authorities. The remarks in OLAF’s opinion concerning the possibility for the complainant to address the authorities of Lesotho were thus irrelevant for the purposes of the Ombudsman’s inquiry.

6. The complainant's request for access to OLAF's file was based on Regulation 1049/2001. In its letter of 7 October 2004 rejecting the original request for access, OLAF relied on three exceptions in Regulation 1049/2001, namely, (1) the protection of the purpose of inspections, investigations and audits (Article 4(2), third indent, of the Regulation); (2) the protection of privacy and the integrity of the individual, in accordance with Community legislation regarding the protection of personal data (Article 4(1)(b) of the Regulation); and (3) the commercial interests of natural or legal persons (Article 4(2), first indent, of the Regulation). The Ombudsman noted that only the first of these exceptions was expressly mentioned in OLAF's decision on the confirmatory application and that only this exception was discussed in OLAF's opinion. In view of these facts, the Ombudsman considered that there was no need to examine the other two exceptions on which OLAF had initially relied.

The complainant’s allegation and claim

7. The complainant alleged that OLAF had wrongly failed to grant access to its file and, in particular, to the report resulting from the audit carried out in 2000 and claimed that such access should be granted. In the complainant's view, Article 4(2), third indent, of Regulation 1049/2001 could not be interpreted so widely as to encompass investigations that had already been completed. In the complainant's view, the protection was, in any event, no longer justified on the basis of the contents of the document concerned (Article 4(7) of Regulation 1049/2001). The complainant thus argued that access should at least be given to those documents, such as the audit report from 2000, that were no longer directly relevant to the current investigation.

8. In its opinion, OLAF stated that it was unable to disclose the 2000 audit report or any of the documents in the investigation file on the grounds of Article 4(2), third indent, of Regulation 1049/2001. According to OLAF, the disclosure of these documents would be harmful to the ongoing OLAF investigation, as well as to the investigation by the Lesotho judicial authorities into this matter. OLAF stressed that granting access to the documents concerned would reveal the evidence in OLAF's possession and its investigation strategies. It added that the 2000 audit report contained preliminary results, opinions and conclusions of the initial investigation and was one of the elements which formed the basis for further inquiries currently undertaken by OLAF and the Lesotho authorities concerning this matter.

9. The Ombudsman noted OLAF's argument that the refusal to disclose the documents concerned was justified by the need to protect the inquiries carried out by the authorities of Lesotho. Neither OLAF's reply of 7 October 2004 to the request for access nor its reply of 30 November 2004 to the confirmatory application contained any reference to any such inquiries. The Ombudsman was therefore unable to see how the above-mentioned argument could be relevant for ascertaining whether OLAF's decision to refuse access to the documents concerned could be justified in the present circumstances.

10. As to OLAF's argument that the refusal to disclose the documents concerned was justified by the need to protect its own investigation, the Ombudsman noted that Article 4(2), third indent, of Regulation 1049/2001 provides that the institutions "shall refuse access to a document where disclosure would undermine the protection of (...) the purpose of inspections, investigations and audits".

11. From an internal note dated 11 July 2003, a copy of which OLAF sent to the complainant together with its letter of 7 October 2004, it emerged that OLAF had decided on that day to open an external investigation regarding the project in Lesotho. In light of the information provided by OLAF in its opinion, the Ombudsman presumed that this investigation had not yet been completed. The Ombudsman further noted that OLAF had submitted that the decision to open this new investigation had been taken in the light of new information that it had received. In the Ombudsman's view, it was further reasonable to assume that access to OLAF's file would reveal the evidence in OLAF's possession and its investigation strategies. The Ombudsman considered that the disclosure of such information would indeed undermine the protection of OLAF's investigation and that OLAF's reference to Article 4(2), third indent, of Regulation 1049/2001 thus appeared to be correct in principle.

12. However, OLAF's argument that no access could be granted to "any of the documents on the investigation file" presupposed that the exception set out in Article 4(2), third indent, of Regulation 1049/2001 applied to all of these documents.

13. The Ombudsman considered it doubtful that this was indeed the case. It appeared logical to assume that OLAF's file on the investigation also contained OLAF's decision of 11 July 2003 to open this investigation. However, and as mentioned above, OLAF had not had any difficulty in granting access to this document. In the Ombudsman's view, OLAF had thus not established that Article 4(2), third indent, of Regulation 1049/2001 would prevent it from disclosing all the documents on its file.

14. In particular, the Ombudsman had considerable doubts as to whether the reasoning submitted by OLAF could justify its refusal to grant access to the report of the audit drawn up in 2000. Whilst the Ombudsman had already accepted(5) that the protection afforded by a provision similar to the one at issue in the present case was not necessarily only available until the completion of the relevant inspection, investigation or audit, regard had first to be had to the fact that the document concerned by the complainant's request appeared to have been drawn up some four years before the request for access was made. It was therefore not immediately clear how the disclosure of this document could undermine the protection of OLAF's current investigation. Furthermore, while the Ombudsman accepted that OLAF was justifiably concerned that giving access to its file would reveal evidence in its possession and its investigation strategies, there was nothing to show that giving access to the report of the audit drawn up in 2000 would have these negative consequences. As regards the first of the two aspects referred to by OLAF, it should be noted that OLAF itself had decided to close its first investigation in the light of the conclusions of this report. In these circumstances, it was therefore difficult to see at first sight how the disclosure of evidence possibly contained in this audit report could affect the new investigation. The Ombudsman considered that it might safely be assumed that, if there had been tangible evidence of wrongdoing as regards the complainant's client or related companies, OLAF would not have closed its first investigation but continued with it. As to the second aspect, it appeared most unlikely that the 2000 audit report should contain any information on OLAF's strategies as regards the investigation opened in 2003.

15. In its opinion, OLAF did not address the possibility of granting partial access. It was thus not clear whether OLAF continued to maintain, as it had done in its decision of 30 November 2004 rejecting the confirmatory application, that it was not possible to grant partial access either, since the administrative burden involved would be disproportionate. Even if this should be the case, the Ombudsman considered it important to note that this statement appeared to have been made with a view to granting partial access to the entirety of the documents on OLAF's investigation file. It was thus not clear whether granting partial access to the audit report of 2000 would also cause a disproportionate administrative burden. In any event, in view of the undisputed fact that exceptions to access under Regulation 1049/2001 need to be interpreted restrictively, the Ombudsman took the view that a refusal to grant partial access could only be based on the argument that it would cause a disproportionate administrative burden in very exceptional circumstances.

16. In view of the above, the Ombudsman arrived at the preliminary conclusion that OLAF's refusal to grant access or partial access to its file and, in particular, to the report resulting from the audit carried out in 2000 could constitute maladministration.

Article 3(5) of his Statute directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant.

The Ombudsman therefore made the following proposal for a friendly solution to OLAF:

OLAF could reconsider the complainant's request for access to its file and in particular to the report resulting from the audit carried out in 2000.

OLAF's reply to the Ombudsman's proposal

In its reply to this proposal, OLAF made the following comments:

The Ombudsman had recognised that OLAF's reliance on Article 4(2), third indent, of Regulation 1049/2001 as regards access to its investigation file was correct in principle. However, the Ombudsman had indicated that OLAF had not established how this provision could prevent it from disclosing all the documents in its file, including the 2000 audit report.

OLAF had further considered whether disclosure of other documents in the file, and, in particular, the audit report, would undermine the protection of its ongoing investigation. OLAF had informed the EIB that disclosure of this report would not harm its investigation. However, the EIB had informed OLAF that the disclosure of the audit report would be harmful to commercial interests and to the protection of personal data contained in the report. The EIB had indicated that only a partial disclosure that was limited to the summary and the conclusions of the report would not harm these interests.

OLAF therefore enclosed a copy of those parts of the report, with the names of persons and companies removed. The EIB had informed OLAF that it would disclose to the complainant privately, and not within the framework of the rules on public access to documents, the portion of the report concerning the group.

The complainant's observations

In his observations, the complainant stated that he was satisfied as regards the issue of access to the 2000 audit report.

He submitted, however, that OLAF had ignored the Ombudsman's opinion that it had not considered the possibility of granting partial access to the file related to the current investigation. The complainant stressed that, where an application for access was made in conformity with Regulation 1049/2001, a concrete, individual assessment of the content of the relevant documents needed to be carried out. It was only in exceptional cases and only where the administrative burden proved to be particularly heavy, thereby exceeding the limits of what may reasonably be required, that a derogation from the obligation to examine the individual documents may be permissible. The complainant pointed out that he was not satisfied that OLAF had complied with its duties in this respect.

The complainant stressed that his client was only able to defend itself if it knew the suspicions and presumptions held against it and had the opportunity to clarify and rebut them. His client was also entitled to be informed of the exculpatory facts in OLAF's possession.

Further inquiries

Having examined OLAF's reply to the proposal for a friendly solution, the Ombudsman considered that he needed further information to deal with the present case.

The first request for further information

On 29 May 2006, the Ombudsman therefore wrote to OLAF. In his letter, the Ombudsman pointed out that, in his proposal for a friendly solution, he had suggested that OLAF "could reconsider the complainant's request for access to its file and in particular to the report resulting from the audit carried out in 2000". The Ombudsman noted, however, that, in its reply, OLAF had only addressed the issue of the possibility of granting access to the 2000 audit report. He therefore invited OLAF to submit its comments on the proposal for a friendly solution as regards the issue as to whether access could be granted to any documents on its file other than the 2000 audit report.

The complainant was informed accordingly the same day. In his letter, the Ombudsman noted that, in his observations on OLAF's reply to the proposal for a friendly solution, the complainant had repeated his view that his client needed to have access to OLAF's file in order to be able to defend itself. The Ombudsman pointed out that the arguments that the complainant had submitted in this context appeared to concern the question as to whether a person who is the subject of an investigation by OLAF has a right of access to the latter's file as part of his rights of defence. However, this issue was, as the Ombudsman had explained in his proposal for a friendly solution, not covered by the present inquiry. The Ombudsman therefore advised the complainant that if he should wish to pursue the issue, he could make a request to that effect to OLAF and submit a further complaint to the Ombudsman if OLAF's reply should not satisfy him.

OLAF's reply

In its reply, OLAF pointed out that, upon further examination, it unfortunately had to confirm that the exception laid down in Article 4(2) of Regulation 1049/2001 still applied to the other documents in its file, as the disclosure of these documents would be harmful to the ongoing investigation by the Lesotho judicial authorities into this matter. As previously stated, disclosure would reveal the evidence currently in OLAF's possession, and its investigation strategies.

The complainant's observations

In his observations, the complainant submitted the following comments:

OLAF's reply was not satisfactory. OLAF had not at any time considered the possibility of granting partial access to the file related to the current investigation. It was very doubtful whether the exception laid down in Article 4(2), third indent, of Regulation 1049/2001 applied to all the documents on this file. It was the established case-law of the Community courts that where an institution received a request for access to its file, it was required, in principle, to carry out a concrete, individual assessment of the documents referred to in that request. In its letter of 30 June 2006, OLAF simply dismissed the request for access by relying on the said exception without explaining in any way whether and how it had applied this exception to its file. Having regard to the principle that exceptions to the right of access to documents had to be interpreted narrowly, it was very unlikely that disclosure of each and every document on the file would be harmful to the investigation and, therefore, had to be denied. This had already been shown by the fact that OLAF had had no difficulty in providing a copy of the decision opening the new investigation. As things now stood, it remained impossible for his client to judge which additional information had come to light to make a new investigation necessary.

Contrary to a statement made by OLAF to that effect, there were, to the best of his client's knowledge, no proceedings underway against his client in Lesotho.

Notwithstanding the above, a further request for access would be addressed to OLAF on the basis of his client's private rights of defence as a person concerned in the investigation.

The second request for further information

On 6 July 2006, the Court of First Instance delivered its judgment in Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission. These cases concerned requests for access to documents that OLAF had rejected on the basis of Article 4(2) third indent of Regulation 1049/2001.

The Court's judgment was rendered after OLAF had sent its reply to the Ombudsman's request for further information. The complainant had not referred to this judgment in his most recent observations. However, since the judgment appeared to be relevant to the present case, the Ombudsman wrote to OLAF on 21 September 2006 in order to invite it to comment on whether, in the light of this judgment, it continued to believe that it had handled the request for access properly and, if so, to explain the reasons on which this view was based.

OLAF's reply

In its reply, OLAF pointed out that by letter of 3 October 2006 it had informed the complainant that its investigation had been closed without follow-up after it had learnt that the Lesotho authorities no longer intended to launch proceedings against the group. OLAF added that it had written to the Lesotho authorities to ask them whether they had any objection to the disclosure (total or partial) of documents to the complainant. The Ombudsman would be informed of the answer provided by these authorities and OLAF's ultimate decision on the issue.

OLAF further pointed out that in the judgment referred to by the Ombudsman, the Court of First Instance had stressed the need for a concrete analysis with respect to each document concerned. It added that it was in the process of carrying out this analysis but that it had to await the reply of the Lesotho authorities in order to determine whether the exception would still be applicable to any of the documents concerned. OLAF noted that given the amount of documents on its file, it would request the complainant to specify the scope of his request for access.

OLAF mentioned that a new request for access, which was based on the rights of defence, had been received on 19 September 2006 and added a copy of a holding letter that it had sent to the complainant regarding this request.

The complainant's observations

On 18 December 2006, the complainant informed the Ombudsman that he did not wish to make any comments in this case. The complainant pointed out that, in view of the fact that OLAF had now closed its investigation without follow-up, he would write to OLAF to confirm that he would not be pursuing his request for access to the file.

The complainant thanked the Ombudsman for the action he had taken in response to the complaint.

THE DECISION

1 Alleged failure to grant access to documents

1.1 The complainant, a German lawyer, represents a company belonging to an international group. Two other companies of this group had been involved in a project in Lesotho that had been partially funded by the EU. In 2000, the European Investment Bank ("EIB") carried out an audit into this funding, which led to an audit report. The European Anti-Fraud Office ("OLAF") was informed of this audit. Based on the conclusions of the EIB's audit report (the "2000 audit report"), the OLAF investigation was closed.

In June 2003, and on the basis of new information, OLAF opened a new investigation concerning this matter.

1.2 In a letter of 16 September 2004, the complainant asked for access to all the documents on OLAF's file concerning the "Lesotho Highlands Water Project"(6). This request was made on the basis of 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(7) ("Regulation 1049/2001").

In its reply of 7 October 2004, OLAF rejected this request, citing three exceptions in Regulation 1049/2001 on which its decision was based: (1) the protection of the purpose of inspections, investigations and audits (Article 4(2), third indent, of the Regulation), "as the investigation is still on-going"; (2) the protection of privacy and the integrity of the individual, in accordance with Community legislation regarding the protection of personal data (Article 4(1)(b) of the Regulation); and (3) the commercial interests of natural or legal persons (Article 4(2), first indent, of the Regulation). In reply to a question put to it to that effect by the complainant in his letter of 16 September 2004, OLAF also confirmed that it had opened a new investigation in 2003.

On 2 November 2004, the complainant lodged a confirmatory application. In its reply of 30 November 2004, OLAF confirmed its position, with particular reference to Article 4(2), third indent, of Regulation 1049/2001. As regards the 2000 audit report, OLAF stressed that it contained preliminary results, opinions and conclusions regarding the initial investigation. OLAF pointed out that this initial report as well as new information it had in the interim received formed the basis for further inquiries that were underway at that time. It added that the documentation in the case file consisted of the evidence gathered so far, and that this evidence was the subject of further analysis. OLAF submitted that the disclosure of the documents on its file would disrupt the investigation currently being undertaken. According to OLAF, it was not possible to grant partial access either, since the administrative burden involved would be disproportionate.

1.3 In his complaint to the European Ombudsman, which was lodged on 9 May 2005, the complainant alleged that OLAF had wrongly failed to grant access to its file and, in particular, to the report resulting from the audit carried out in 2000 and claimed that such access should be granted.

1.4 In its opinion, OLAF stated that it was unable to disclose the 2000 audit report or any of the documents in the investigation file on the grounds of Article 4(2), third indent, of Regulation 1049/2001. According to OLAF, the disclosure of these documents would be harmful to the ongoing OLAF investigation, as well as to the investigation by the Lesotho judicial authorities into this matter. OLAF stressed that granting access to the documents concerned would reveal the evidence in OLAF's possession and its investigation strategies.

1.5 Upon a preliminary examination of the submissions made by the parties, the Ombudsman considered that OLAF had not responded adequately to the complainant's arguments. On 19 December 2005, he therefore addressed a proposal for a friendly solution, according to which OLAF could reconsider the complainant's request for access to its file and, in particular, to the report resulting from the audit carried out in 2000(8).

1.6 In its reply to that proposal, OLAF pointed out that it had informed the EIB that disclosure of the 2000 audit report would not harm its investigation. However, the EIB had informed OLAF that disclosure of the audit report would be harmful to commercial interests and to the protection of personal data contained in the report. OLAF added that the EIB had indicated that only a partial disclosure that was limited to the summary and the conclusions of the report would not harm these interests. Together with its reply to the Ombudsman, OLAF therefore enclosed a copy of those parts of the report, with the names of persons and companies removed. OLAF noted that the EIB had informed OLAF that it would disclose to the complainant privately, and not within the framework of the rules on public access to documents, the portion of the report concerning the group.

1.7 In his observations, the complainant stated that he was satisfied as regards the issue of access to the 2000 audit report. He submitted, however, that OLAF had ignored the Ombudsman's opinion that it had not considered the possibility of granting partial access to the file related to the current investigation.

1.8 In view of the above, the Ombudsman concluded that further inquiries were necessary and addressed two requests for further information to OLAF.

1.9 In its reply to the second of these requests, OLAF pointed out inter alia that by letter of 3 October 2006 it had informed the complainant that its investigation had been closed without follow-up after it had learnt that the Lesotho authorities no longer intended to launch proceedings against the group.

1.10 In his observations on this reply, the complainant informed the Ombudsman that he did not wish to make any comments in this case. The complainant pointed out that in view of the fact that OLAF had now closed its investigation without follow-up, he would write to OLAF to confirm that he would not be pursuing his request for access to the file. He thanked the Ombudsman for his support in the matter.

1.11 The Ombudsman takes note of the fact that the complainant does not wish to pursue his request for access to OLAF's file. In these circumstances, the Ombudsman considers that there are no grounds for pursuing his inquiry into the present complaint.

2 Conclusion

In the light of the results of his examination, the Ombudsman considers that there are no grounds for further inquiries in the present case. He therefore closes the case. The Director-General of OLAF will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The complainant also asked the EIB for access to the audit report. The handling of this application gave rise to a complaint against the EIB (complaint 1776/2005/GG - confidential).

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

(3) The complainant enclosed a copy of this document.

(4) OJ 1999 L 136, p. 1.

(5) In his draft recommendation in case 1126/2004/GG (confidential) of 28 February 2005 (at point 3.15). The non-confidential version thereof is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(6) The complainant also asked the EIB for access to the audit report. The handling of this application gave rise to a complaint against the EIB (complaint 1776/2005/GG - confidential).

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

(8) A similar proposal for a friendly solution was made, also on 19 December 2005, in the inquiry concerning the complaint against the EIB (complaint 1776/2005/GG - confidential).