The background to the complaint

1. The complainant, a doctor of veterinary science from Poland, worked as an expert on an EU funded project. On 9 November 2011, he submitted a complaint to the European Ombudsman (2386/2010/(AR)MHZ) concerning two issues: the Commission's request for the complainant's dismissal from his position of key expert and team leader of that EU funded project ('Aspect A') and the Commission's refusal to disclose documents related to his dismissal ('Aspect B'). In the course of his inquiry into the complaint, the Ombudsman decided, for procedural reasons, to carry out two separate inquiries into these two issues. The inquiry concerning Aspect A was conducted under the original complaint reference number 2386/2010/(AR)MHZ, and the inquiry concerning Aspect B was conducted under reference number (1013/2012/(AR)MHZ). The present decision relates to Aspect B covered by complaint number 1013/2012/(AR)MHZ. As regards Aspect A, covered by complaint number 2386/2010/(AR)MHZ, the Ombudsman issued a separate decision on 31 July 2012.

2. The Commission launched a call for tenders and then concluded a contract with the successful consortium for the implementation of the assistance project funded by the European Union in Bosnia and Herzegovina Europe Aid/126654/C/SER/BA, "Support to Implementation and Enforcement of Bosnia and Herzegovina Food Legislation" (hereinafter 'the Project'). An Italian consultancy company ('the Leader') was the leader of the Consortium. The Contracting Authority was the Commission's Delegation ('the Delegation') to Bosnia and Herzegovina ('BiH').

3. On 7 August 2009, the Leader signed a contract with the complainant. It appointed him team leader and key expert on food safety, to which the Project related. The implementation of the Project and the complainant's work started on 14 September 2009.

4. On 24 May 2010, the Delegation requested the Leader to replace the complainant as team leader of the Project in accordance with Article 17.2 of the General Conditions of the Contract[1]. On 27 May 2010, the Leader replied to the Commission. On 28 July 2010, the complainant received an e-mail from the president of the Leader dismissing him from the team leader position he held as from 6 August 2009. The Leader stated that the dismissal was requested by the Delegation but did not refer to any reasons to justify the dismissal. The Leader subsequently told the complainant that he could contact the Delegation for more information.

5. On 10 August 2010, the complainant submitted to the Delegation, by hand, a request dated 9 August 2010 for access to all the documents concerning the performance of his duties as team leader, and his dismissal from the Project. The request was drafted in Polish. In his request, the complainant invoked Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents[2]. He stated that he wished to have access "to all documents concerning [his] execution of duties as a team leader involved in [the Project] … drawn up in the Delegation … or received and currently held by the Delegation." The Delegation registered the request in its ADONIS system on 10 August 2010.

6. On 25 August 2010, the Delegation sent a letter to the complainant entitled "Acknowledgement of receipt of your two letters dated 9 August 2010". It referred to his above-mentioned request for access and also to the complaint concerning his dismissal which he submitted to the Delegation on the same day. The Delegation stated that "it can be expected that the [substantive] reply could be given to [him] within next six weeks."

7. On 2 September 2010, the complainant sent an e-mail to the Delegation to which he attached a letter entitled "Confirmatory application pursuant to Article 7(4) of Regulation 1049/2001". He stated that the Delegation's letter of 25 August 2010 did not address correctly his initial request of 9 August 2010. He maintained his initial request for access to documents as specified in his initial application of 9 August 2010. He also asked for access to the e-Register of documents maintained by the Delegation. He took the view that a register allowing for access in electronic form should be operational in the Delegation pursuant to Article 11 of Regulation 1049/2011. The Delegation acknowledged receipt of this e-mail that same day. On 3 September 2010, the complainant also sent the same letter to the Delegation in BiH by registered mail from Warsaw.

8. On 3 September 2010, he received an e-mail from the Delegation in reply to his initial application dated 9 August 2010. The reply was written in Polish and English. The Polish version bore the date 3 August 2010 and the English version 3 September 2010. The Delegation stated that it "regrets to inform [him] that the document(s) requested is covered by one of the exceptions provided for by the policy relating to access to documents and that it cannot be made available to [him]. The exception which applies to the document(s) you requested is that the document(s) requested relate to contract … between the European Commission and [the Leader]. A disclosure of the requested document[s] would undermine the protection of the commercials interests of [the Leader]. The exception lay down in article 4[2] of Regulation 1049/2001 applies." The Delegation informed the complainant that he could submit a confirmatory application to the Commission's Secretary-General ('SG') within 15 days of receipt of this letter. It provided the complainant with the SG's address.

9. On 17 September 2010, the Delegation sent the complainant a further letter which was over two pages long. It referred in substance to the complainant's dismissal from his position of key expert and team leader of the Project. The last two sentences of that letter referred to the request for documents. The Delegation stated: "We remind you that a disclosure of communication with [the Leader] would undermine the protection of the commercial interests of the [Leader], as laid down in article 4(2) of Regulation 1049/2001. [The Leader] explicitly requested us not to disclose such communication."

10. The complainant considered that he had already made a confirmatory application on 2 September 2010, within the deadline prescribed by Regulation 1049/2001, and he did not submit a fresh confirmatory application as suggested in the Delegation's above-mentioned letter of 3 September 2010. Instead, he waited for a reply to his confirmatory application of 2 September 2010. On 21 September 2010, the complainant sent a letter to the Delegation in which he suggested that "offences [have] been committed against the documents at the Delegation …". He noted that the English and Polish versions of the Commission's reply he received on 3 September 2010 bore different dates. He considered that there was a "forgery of the signature" and that the review clause was wrongly formulated.

11. On 23 September 2010, the Delegation replied apologising for the error in the date of the Polish version and asked the complainant to address the SG if he had further questions concerning Regulation 1049/2001. The Delegation stated that it considered the matter closed.

12. On 11 October 2010, the complainant contacted the Delegation. He stated that he did not receive a reply to his confirmatory application dated 2 September 2010 and took the view that this failure was an implicit rejection of that confirmatory application.

13. In its reply of 26 October 2010 (which also referred to Aspect A), the Delegation stated that "[the complainant's] application for access to documents under EC Regulation 1049/2001 was … addressed in [the Delegation's letter of 17 September 2010]." The Delegation did not refer to the complainant's confirmatory application of 2 September 2010 and to its reply to him, dated 3 September 2010.

14. The complainant was not satisfied with the manner in which the Commission handled Aspects A and B and turned to the Ombudsman.

The subject matter of the inquiry concerning Aspect B (the complainant's request for access to documents and the Register)

15. First, the complainant alleged that the Commission's refusal to grant him access to the documents concerning his performance as a team leader in the Project and his dismissal was not properly grounded. Second, he alleged that the Commission did not reply to his request for access to the Register of the Delegation's documents.

16. He claimed that the Commission should give him access to the requested documents.

17. In his observations on the Commission's opinion, the complainant clarified the claim outlined above, in the light of the information the Commission provided in its opinion. He stated that he wished to have access to: (i) the documents mentioned in the Commission's opinion ((a) monitoring reports concerning the Project dated 15 January, 30 March and 18 May 2010, (b) the Delegation's letter to the Leader dated 24 May 2010, and (c) the latter's reply dated 27 May 2010); (ii) all documents containing critical remarks on the complainant's performance addressed by the Commission to the Leader; and (iii) all documents/information containing his personal data within the meaning of Regulation 45/2001 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[3].

18. As regards the complainant's modification of his claim, the Ombudsman notes that the complainant's initial request for access was broad and could perfectly encompass all documents which were subsequently specified in the complainant's observations. For that reason, the modified claim is admissible in the framework of the present inquiry and will be dealt with. This conclusion concerns all documents referred to under points (i) to (iii) above, excluding the document mentioned in point (i)(b). This exclusion is due to the fact (reported by the Commission in the opinion and confirmed by the complainant in his observations), that in parallel with the present inquiry, the complainant asked for and received partial access to this document on the basis of Article 13 of Regulation 45/2001.

19. In his observations on the Commission's opinion, the complainant also referred to the information the Commission provided in reply to his second allegation that the Delegation does not have an e-Register of documents. The complainant stated that, if this is so, the Delegation is in breach of Article 11 of Regulation 1049/ 2001[4]. In so far as this statement could be considered to constitute a new allegation, the Ombudsman takes the view that each EU Delegation should not be assessed individually as regards its compliance with Article 11 of Regulation 1049/2001, but that it is rather the EU body of which the Delegations have become an integral part since 2 December 2009, namely the European External Action Service (EEAS), that should be considered responsible. Since the inquiry in the present case was directed towards the Commission and not the EEAS, the Ombudsman will not pursue this aspect of the complaint further. If the complainant wishes to submit a new complaint against the EEAS concerning the compliance of the EU Delegation in BiH with Article 11 of Regulation 1049/2011, he should first approach the EEAS.

The inquiry

20. On 20 December 2010, the Ombudsman asked the European Commission for an opinion on Aspects A and B, originally covered by complaint 2386/2010/(AR)MHZ. On 1 July 2011, the Commission finally submitted its opinion in English (which was due on 31 March) concerning Aspects A and B, and on 7 July 2011, it submitted the translation of the opinion into Polish. The translation was forwarded to the complainant for observations. He submitted his observations on 22 August 2011.

21. On 22 November 2011, the Ombudsman asked the Commission a number of questions concerning Aspects A and B and requested a reply by 31 January 2012. The Commission eventually replied on 30 March 2012 in English and submitted a translation of this reply into Polish two weeks later. The translation was forwarded to the complainant for observations. He submitted observations on 30 May 2012. In the meantime, on 5 December 2011, the Ombudsman's services carried out an inspection of the documents concerning both Aspects A and B of the complaint at the Commission's premises in Brussels. The Commission classified all inspected documents as confidential[5]. On 12 January 2012, the Ombudsman sent a report of the inspection both to the complainant and the Commission for information.

22. On 21 May 2012, the Ombudsman decided to treat separately aspects A and B. As indicated in point 1 above, aspect A was examined under complaint number 2386/2010/(AR)MHZ and aspect B was examined under a new reference number, that is complaint number 1013/2012/(AR)MHZ.

23. On 31 July 2012, the Ombudsman sent a draft recommendation concerning the present case (1013/2012/(AR)MHZ) to the Commission. The Commission replied on 7 December 2012. The Polish translation of this reply was sent to the complainant for observations. On 30 January 2013, the complainant submitted his observations.

The Ombudsman's analysis and conclusions

A. Alleged failure to justify the refusal to disclose documents and related claim

Arguments presented to the Ombudsman

24. The complainant originally asked the Commission for access to all documents concerning the performance of his duties as a team leader and his dismissal. In his observations, he specified that the documents requested were: (i) the monitoring reports of 15 January, 30 March and 18 May 2010; (ii) the Leader's reply to the Delegation dated 27 May 2010; (iii) all documents containing critical remarks on the complainant's performance addressed by the Commission to the Leader except for the Commission's letter to the Leader dated of 24 May 2010 to which he had in the meantime been given access under Regulation 45/2001; (iv) all documents/information containing his personal data within the meaning of Regulation 45/2001.

25. In its opinion on the complaint, the Commission refused to take a stance in substance on the complainant's requests for access on the ground that he did not comply with the procedural requirement of Regulation 1049/2001 to submit a confirmatory application. In the Commission's view, the complainant's letter dated 2 September 2010, which confirmed his initial application of 10 August 2010, could not be considered to constitute a confirmatory application because the Commission's reply to the complainant's initial application was sent to him on 3 September 2010.

26. In its reply dated 30 March 2012 to the Ombudsman's specific remarks made in his letter of 22 November 2011[6], the Commission acknowledged that its holding reply sent to the complainant on 25 August 2010 was not in conformity with Regulation 1049/2011. Furthermore, it agreed with the Ombudsman's view, expressed in his above-mentioned letter[7], that the fact that the Commission's reply of 3 September 2010, which was sent after the 15 working day deadline for doing so had expired, coincided with the complainant's confirmatory application of 2 September 2010 did not deprive this application of its confirmatory status, since the Commission's initial reply contained a refusal. The Commission agreed that it would indeed be too formalistic to require the complainant to renew his confirmatory application, and it stated that it "is willing to take a stance under both Regulation 1049/2001 and Regulation 45/2001" on the issue of access to the documents in question.

27. The Commission then gave access, under Regulation 1049/2011, to the Monitoring Report of 15 January 2010 (and pointed out in this respect that the Leader had already sent it to the complainant on 21 January 2010) and to the Delegation's letter of 31 December 2009 to the Leader which contained the Delegation's comments on the first draft of the Inception Report (the Commission understood from the Leader's statements that the complainant also had it in its possession). In addition, after having obtained the consent of the Leader, the Commission disclosed, under Regulation 45/2001, the Leader's reply to the Delegation dated 27 May 2010. It enclosed a copy of that letter with its reply.

28. As regards the Monitoring Reports dated 30 March and 18 May 2010, the Commission stated in its reply that "[it] will, following final consultations with the Legal Services, transmit the decision to the Ombudsman on possible disclosure as soon as it is adopted." In this respect, the Commission pointed out that the Monitoring Report dated 18 May 2010 is the same document as "the minutes of the meeting" dated 18 May 2010.

29. In his observations on the Commission's reply dated 30 March 2012, the complainant pointed out that he did not receive a reply to his confirmatory application dated 2 September 2010.

The Ombudsman's assessment leading to a draft recommendation

30. In the draft recommendation, the Ombudsman stated that he appreciates that the Commission agreed with his view that the complainant's letter of 2 September 2010 constitutes a confirmatory application pursuant to Article 8 of Regulation 1049/2001. He also noted the Commission's statement that it decided to take a stance on the complainant's original request for access anew. However, in its reply to the Ombudsman's further questions, the Commission limited itself to disclosing three documents.

31. First, it disclosed, under Regulation 1049/2001, the monitoring report of 15 January 2010[8] and stated, on 30 March 2012, that is almost one and a half years after the complainant submitted his initial application, that it still needed to obtain the opinion of the Commission's legal service in order to be able to decide on the disclosure of the remaining reports of 30 March and 18 May 2010. The Ombudsman and the complainant waited for the Commission's final stance for more than two months but the Commission failed to communicate it. The egregious delay in dealing with this request for access constitutes unacceptable behaviour on the part of the Commission and a clear instance of maladministration.

32. Second, the Commission stated that (i) the complainant was already in possession of the Delegation's letter to the Leader dated 31 December 2009 (it nevertheless attached a copy of this document to its reply) and (ii) this document contained critical remarks on his performance. In addition, the Commission disclosed, under Regulation 45/2001, the Leader's letter to the Commission dated 27 May 2010. It should be noted in this respect that the complainant made a request for access to documents with two specific characteristics: (i) all documents containing critical remarks on the complainant's performance addressed by the Commission to the Leader and (ii) all documents/information containing his personal data within the meaning of Regulation 45/2001. In its reply, the Commission took the view that the Delegation's letter to the Leader dated 31 December 2009 and the Leader's letter to the Commission dated 27 May 2010 belonged to category (ii). The Commission was however completely silent as regards the existence in its file of other documents which could fall under category (ii) as well as category (i).

33. The Ombudsman stated that he was puzzled by this silence especially since his services inspected the documents in the Commission's file and he was aware that there are more documents in that file which contain information that corresponds to the characteristics mentioned by the complainant. Apart from the Delegation's letters to the Leader of 31 December 2009 (disclosed in the Commission's reply of 30 March 2012) and of 24 May 2010 (disclosed to the complainant directly, in the course of the inquiry), there is in the inspected file one more document addressed by the Delegation to the Leader which contains critical remarks on the complainant's performance. Moreover, this document and another nine documents in the inspected file contain personal data concerning the complainant[9] (apart from the complainant's correspondence also included in the file).

34. In this respect, the Ombudsman first noted that Article 41(2)(b) of the EU Charter of Fundamental Rights provides that the right to good administration includes the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. In addition, the Charter provides in Article 42 for the citizens' right of access to documents in general.

35. Second, the Ombudsman emphasised that the Court of Justice of the EU has clearly held that when processing an application for access to documents under Regulation 1049/2001, the institutions must carry out a specific examination of each document concerned. In order to be able to do so, the institutions thus first need to identify the documents corresponding to a given request for access and they must then decide whether or not a document concerns an interest protected by an exception. In the affirmative, they must also determine whether the disclosure of the document could specifically and effectively undermine the interest protected by the exception invoked. In addition to that, the Institutions should take into account that the risk of protected interests being undermined must be reasonably foreseeable and not purely hypothetical[10].

36. In the present case, however, the Commission did not make the effort to identify the documents in its file which may be relevant to the complainant's request, which it should have done whether it considered this request under Regulation 1049/2001 or Regulation 45/2001. It failed to do so not only in its replies to the complainant's request dated 3 and 17 September 2010 (described in points 8 and 9 above) but also in its replies to the Ombudsman in the course of his inquiry. Since the Commission failed to identify the documents requested by the complainant, the Ombudsman took the view that it goes without saying that it could not conduct a proper analysis of each one of them and then decide on their disclosure.

37. In light of the foregoing, the Ombudsman considered that the Commission did not handle adequately and in a timely manner the complainant's request for access to documents. Moreover, the Commission again considerably delayed its replies to the Ombudsman in the framework of his inquiry and failed to respect its commitments to give explicit answers to the complainant's requests. The Ombudsman considered that these failures constitute instances of maladministration. He therefore made a corresponding draft recommendation, in accordance with Article 3(6) of the Statute of the European Ombudsman[11], as follows:

"The European Commission should without further delay:

(i) disclose to the complainant the monitoring reports dated 30 March and 18 May 2010 or properly justify why it cannot do so;

(ii) reply to the complainant's requests for access to

(a) all documents containing critical remarks on the complainant's performance addressed by the Commission to the Leader, and

(b) all documents/information containing the complainant's personal data within the meaning of Regulation 45/2001 by first identifying the relevant documents and then either disclosing them or, if the Commission considers that they cannot be disclosed, providing a proper explanation, as regards each document concerned, as to why they cannot be disclosed."

The arguments presented to the Ombudsman after his draft recommendation

38. The Commission stated that it fully accepts the draft recommendation. As regards recommendation number (i) the Commission explained that, on 17 July 2012, it sent directly to the complainant a decision concerning access to certain documents under Regulations 1049/2001 and 45/2001,. In this decision, it disclosed to the complainant both reports, dated 30 March and 18 May 2010. The Commission expressed its regret that it failed to send a copy of its decision to the Ombudsman.

39. As regards recommendation number (ii), the Commission identified the following documents under point (a): (1) Letter from the Delegation to the Leader dated 31 December 2009 and containing the Delegation's comments on the first draft of the Inception report; (2) Letter from the Leader to the Delegation dated 27 May 2010; (3) Letter from the Delegation to the Leader dated 9 August 2010. Documents 1 and 2 had already been communicated to the Ombudsman and thus to the complainant, since they were enclosed with the Commission's further reply to the Ombudsman dated 30 March 2012 and were sent in the framework of his inquiry into complaint 2386/2010/(AR)MHZ.

40. Document 3 was written by the Commission exercising its supervisory powers with regard to the Project implemented by the Leader and based on the contract between the Commission and that company. It contains a critical evaluation by the Commission of the complainant's performance. The Commission considered whether the content of document 3 could be communicated to the complainant under Regulation 1045/2001. Article 13 of Regulation 45/2001 confers on a data subject the right to receive "(c) communication in an intelligible form of the data undergoing processing and any available information as to their source." The Commission took the view that, since document 3 contains information concerning the complainant personally, he has the right, under the above-mentioned article, to receive, in an intelligible form, the personal data concerned.

41. As regards documents under point b), the Commission stated that it holds the following documents falling under this category: (1) the complainant's CV (as part of the contract between the Commission and the Leader); (2) all correspondence between the complainant and the Commission; (3) all correspondence between the complainant and third parties of which the Commission received copies; (4) exchange of e-mails between the Delegation and the Leader (e-mails dated 4, 12 and 18 January 2010); (5) the Commission's internal e-mail exchange (e-mails dated 8, 17 and 18 February 2011); (6) the Delegation's internal e-mail exchange (e-mails dated 24 August 2010); (7) the Delegation's description of the relevant facts (30 August 2010); (8) the Delegation's Note to DG ENLARG (dated 25 October 2010); (9) the Delegation's Note to DG ENLARG (dated 21 January 2011); (10) internal document of DG ENLARG, entitled "Chronology Poplawski" (dated 2 December 2011).

42. The Commission stated that, since the complainant is the originator or addressee of documents 1-3 or of the information contained therein, it presumes that they are in his possession.

43. Since documents 4-10 contain information concerning the complainant personally, he has the right, under Article 13(c) of Regulation 45/2001 to receive in an intelligible form the personal data concerned.

44. The Commission enclosed with its reply the relevant excerpts from document 3 in category a) and of documents 4-10 in category b). These were communicated to the complainant on the basis of Article 13(c) of Regulation 45/2001. In those documents, the Commission deleted, on the basis of Article 20(1)(c) of Regulation 45/2001, personal data relating to persons other than the complainant and commercial information concerning contractors of the Commission. The Commission also deleted other information which did not contain data relating to the complainant and/or his case, since it does not fall under the criteria mentioned in Article 13 of Regulation 45/2001.

45. The Commission emphasised that the information communicated under Regulation 45/2001 was being disclosed to the complainant only and not to the public.

46. In his observations on the Commission's reply, the complainant took the view that there must be additional documents in the Commission's possession which the Commission should have identified as falling under categories a) and b) and should have disclosed. He considered that there should have been 'minutes' of the meeting of the Steering Committee held in October 2010 in which the complainant's dismissal could have been discussed. In addition, there should have been a document on which the Delegation based its critical remarks on the complainant's performance, which were conveyed to the Leader on 24 May 2010.

47. The complainant also pointed out that in two of the disclosed (external) documents, the registration number was partially blurred and this is contrary to the requirements laid down in Decision 2001/937/EC concerning the manner in which documents should be registered. In addition, the names and surnames of the authors of the documents were deleted, as were parts of the text of these documents. The Commission should have explained why the deletions were made in each of the documents concerned.

48. The complainant considered that the Ombudsman should (i) ask the Commission to provide a complete index of all documents containing critical remarks on his performance and all documents/information containing his personal data within the meaning of Regulation 45/2001 or (ii) require the Commission to declare that all enclosures with its reply to the Ombudsman's draft recommendation constitute documents of the case. In this respect, he added that the Commission should be asked to disclose (iii) documents showing that, during the Steering Committee meeting, the issues concerning the complainant were discussed, as well as documents on the basis of which the Delegation stated in its letter to the Leader dated 24 May 2010 that "[the complainant] has failed to address the recommendations of the Steering Committee … ." Moreover, the complainant stated that the Ombudsman should ask the Commission to (iv) disclose the registration numbers and names/surnames of the authors of the documents enclosed with its reply to the draft recommendation; (v) explain the reasons for the deletions made in each document; and (vi) request the Commission to launch disciplinary proceedings against those of its officials who were responsible for the delay in providing an answer to the Ombudsman's draft recommendation (the Commission answered on 7 December 2012 while it should have answered by 31 October 2012).

The Ombudsman's assessment after the draft recommendation

49. The Ombudsman welcomes the Commission's positive reaction to his draft recommendation. On the basis of his inspection of the documents contained in the Commission's file concerning the present case, he finds that, in its reply to his draft recommendation, the Commission identified all documents in its possession which are covered by the complainant's request as outlined in point 17 above.

50. Moreover, the Ombudsman considers that the Commission correctly applied Article 20(1)(c) of Regulation 45/2001[12] when deleting data identifying persons other than the complainant, that is, names of individuals and data identifying legal persons. In this respect, and in reply to the complainant's observation summarised in the first sentence of point 47 above, the Ombudsman points out, on the basis of his inspection of the file, that certain initials were included in the references of two of the documents in question, excerpts of which were communicated to the complainant. The initials were righty deleted, since they could also allow the identification of other persons.

51. Furthermore, the Ombudsman is satisfied with the Commission's explanation (in the third sentence of point 44 above) that in relation to all excerpts communicated to the complainant, the same grounds justified the application of Article 20(1)(c) of Regulation 45/2001. It is also reasonable to consider that the Commission first needed to analyse each document concerned before concluding that the same grounds applied to all excerpts communicated under Regulation 45/2001.

52. In addition, when disclosing information containing the complainant's personal data under Regulation 45/2001, the Commission was not wrong to delete other information contained in the documents concerned. The Ombudsman underlines that access to personal data is not the same as access to documents as such.

53. By way of a final remark, the Ombudsman regrets that the Commission was not able to reply to his draft recommendation within the original deadline. However, in light of the positive response provided by the Commission, he considers that no action on his part is justified in this respect and in the context of the present case.

B. Alleged failure to reply to a request for access to the e-Register

54. The complainant argued that, in his confirmatory application dated 2 September 2010, he requested access to the e-Register of documents, maintained by the Delegation, but the Commission failed to reply to this request.

55. In its opinion on the complaint, the Commission explained that the system used for registering incoming and outgoing letters at the Delegation, the ADONIS system, merely registers incoming and outgoing letters and assigns a registration number to them. It is not a system which contains electronic files.

The Ombudsman's assessment

56. The Ombudsman notes that the Commission replied to the complainant's specific request (albeit only in the opinion) that, within the Delegation, an e-Register does not exist but there exists an "ADONIS" system which simply records incoming and outgoing mail and does not allow access to the actual documents. This answer is sufficient to reply to the allegation, as formulated in the Ombudsman's letter opening the inquiry (referred to in the second sentence of point 15 above). The Ombudsman therefore considers that no further inquiries are justified into this allegation.

C. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Commission has accepted and has properly dealt with the Ombudsman's draft recommendation concerning the first allegation. No further inquiries are justified into the second allegation.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 18 April 2013

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[1] Article 17.2 of the "General Conditions for service contracts financed by the European Community" provides: "… in the course of performance, and on the basis of a written and justified request, the Contracting Authority can ask for a replacement if it considers that a member of staff is inefficient or does not perform its duties under the contract."

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

[3] 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, OJ 2001 L 8, p.1.

[4] Article 11 of Regulation 1049/2001 entitled "Registers" provides: "1. To make citizens' rights under this Regulation effective, each institution shall provide public access to a register of documents. Access to the register should be provided in electronic form […] 3. The Institutions shall immediately take the measures necessary to establish a register which shall be operational by 3 June 2002."

[5] In accordance with Article 4(1) of the Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom, OJ 1994 L 113, p. 15) and the implementing provisions adopted by the Ombudsman and last amended on 3 December 2008, neither the complainant nor the public have access to confidential documents obtained by the Ombudsman's services during an inspection.

[6] In his further letter to the Commission, the Ombudsman stated that, contrary to the Commission's arguments expressed in its opinion, the Delegation's letter to the complainant dated 25 August 2010 could hardly be regarded as a holding reply made pursuant to Article 7(3) of Regulation 1049/2001 since the Delegation extended the deadline by 6 weeks and not by 15 working days, as provided in that provision. Furthermore, that provision provides for the possibility of extending the deadline in view of the nature of the requested documents and not because of administrative constraints (such as the summer holidays of the Delegation's personnel or the necessity of translating the request which was written in Polish, invoked by the Commission in its opinion).

[7] In his further letter, the Ombudsman took the view that the fact that the Delegation was only able to reply to the complainant's initial application (which it received on 10 August 2010) on 3 September 2010, that is, clearly, after the 15 working day deadline for doing so had expired, and knowing that the complainant had already submitted a confirmatory application the day before (and thus within the prescribed deadline), did not deprive the complainant's application of 2 September 2010 of its confirmatory status. In sum, the Ombudsman considered that it would be too formalistic to require the complainant to renew his confirmatory application once he did submit such an application within the deadline established in Article 7(4) read in conjunction with Article 7(2) of Regulation 1049/2001. In light of the above considerations and taking into account the fact that, in the course of the inquiry, the Commission gave the complainant access to the Delegation's letter to the Leader dated 24 May 2010 under Regulation 45/2001, the Ombudsman asked the Commission to take a stance, under both Regulations, 1049/2001 and 45/2001 (Article 13), on the complainant's claim concerning access to documents as it was reformulated in his observations.

[8] The Commission noted in this respect that the complainant "should be already in the possession" of this document which was sent to him by the Leader on 21 January 2010.

[9] For instance, names constitute personal data (Case C-28/08 Commission v Bavarian Lager [2010] ECR I-6055, paragraph 68).

[10] C-39/05 P and C-52/05 P Sweden and Turco v Commission [2008] ECR I-4723, paragraph 43; Case C-506/08 P Sweden v MyTravel v Commission, judgment of 21 July 2011, not yet published in the ECR, paragraph 76; Case T‑250/08 Batchelor v Commission, judgment of 24 May 2011, not yet published in the ECR, paragraph 78; Case T-166/05 Borax Europe v Commission, judgment of 11 March 2009, not yet published in the ECR, paragraph 88; Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69.

[11] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[12] Article 20(1)(c) of Regulation 45/2001 provides: "the Community institutions and bodies may restrict the application of … Articles 13 to 17 … where such restriction constitutes a necessary measure to safeguard: … c. the protection of the data subject or of the rights and freedoms of others."