Strasbourg, 19 December 2006

Dear Mr R.,

On 17 January 2006, you lodged a complaint with the European Ombudsman against the European Anti-fraud Office (OLAF). The complaint concerned OLAF's alleged failure to give you information regarding a complaint you had lodged with that institution against a private Foundation in Spain, concerning an alleged fraudulent use of EU funds.

On 22 January and 14 February 2006, you submitted additional information. On 10 February 2006, you informed my services by telephone that the problem had not been solved.

On 27 February 2006, I informed the Director General of OLAF of your complaint and asked him to submit an opinion on it by 31 May 2006. On 17 May 2006, OLAF sent its opinion in English. On 23 May 2006, the Commission sent a translation of the opinion into Spanish, which was forwarded to you on 30 May 2006, with an invitation to make observations, if you so wished.

On 14 June 2006, you sent an email informing me of your intention to submit observations. I have not, however, received any observations from you.

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

THE COMPLAINT

Complaint 3359/2005/JMA

On 22 September 2005, the complainant lodged a previous complaint with the Ombudsman, which was registered under file number 3359/2005/JMA. In his complaint, he explained that, in 2004, he had complained to OLAF against a fraudulent use of EU funds by a private Foundation Spain. The complainant alleged that the head of the Foundation had used funds provided by the European Regional Development Fund (ERDF) to purchase goods from a firm that was run by his spouse.

According to the complainant, he had telephoned OLAF on a number of occasions in which he requested information on the inquiry. In his complaint to the Ombudsman, the complainant alleged that no information had been given to him in reply to his telephone calls.

The Ombudsman declared the case inadmissible on 5 December 2005 pursuant to Article 2 (4) of his Statute, on the grounds that the complaint had not been preceded by the appropriate administrative approaches to the institution concerned, since it appeared from the available information that the complainant had not written to OLAF in order to request the information.

In his letter informing the complainant of the above, the Ombudsman suggested that the complainant should make the necessary administrative approaches to OLAF and, in particular, that he should write to the institution and request information on the inquiry. The Ombudsman also noted that, should OLAF not reply to the complainant's request, or should the reply appear to be unsatisfactory, he could consider submitting a new complaint to the EO.

Complaint 149/2006/JMA

On 17 January 2006, the complainant wrote again to the Ombudsman.

The complainant stated that, following the Ombudsman's suggestion, he had written to OLAF on 5 January 2006, requesting (i) information on the state of OLAF's proceedings on his complaint, (ii) a copy of the file, and (iii) the names of the officials responsible for the inquiry. In his letter to the Ombudsman, the complainant alleged that his request to OLAF had not been replied to. The complainant sent an additional copy of his complaint on 22 January 2006.

On 10 February 2006, the Ombudsman's Secretariat informally contacted the complainant by telephone in order to check whether or not his letter had meanwhile been replied to. The complainant confirmed that he had not received a reply from OLAF to his query. He also requested that his complaint be treated on a non-confidential basis.

On 14 February 2006, the complainant sent an e-mail to the Ombudsman with additional information concerning the names of the officials from OLAF who had taken part in the inquiry.

Taking into consideration the new evidence, the Ombudsman decided to register the complainant's letter as a new complaint (reference 149/2006/JMA) and to start an inquiry. The allegation on which the Ombudsman asked OLAF to submit an opinion was the following:

The complainant alleges that OLAF failed to reply to his requests for information on the handling of his complaint, in particular as regards his letter of 5 January 2006.

THE INQUIRY

OLAF's opinion

In its opinion, OLAF explained the background to the case. It noted that, on 5 January 2006, the complainant sent an e-mail to OLAF, in which he referred to a message he had recorded on OLAF's answering machine. The message concerned an alleged misuse of EU funds by a Spanish organisation.

By letter dated 10 February 2006, OLAF replied to the complainant's e-mail of 5 January 2006. In its reply, OLAF addressed the three queries made by the complainant, stating the following:

(i) State of the inquiry: OLAF informed the complainant that, based on his allegation, it had started an inquiry, in the course of which its officials carried out an inspection on the premises of the beneficiary. OLAF issued a report on its conclusions following the inquiry on 4 July 2005. A copy of the report was then forwarded to the Spanish authorities. The inquiry was formally closed on 21 September 2005. Since, as a result of its investigations, a number of potential criminal elements had been unveiled, OLAF passed the relevant information on to the responsible Spanish magistrates on 25 November 2005, who started a judicial enquiry into the matter. OLAF explained that it had been unable to inform the complainant earlier of the results of its inquiry since it only obtained his contact details following receipt of his e-mail of 5 January 2006.

(ii) Request for access to the documents of the file: OLAF explained that it could not grant access to the documents requested on the basis of three of the exceptions set out in Article 4 of the EC Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents. Accordingly, OLAF refused access to the documents since it considered that their disclosure would undermine the protection of the purpose of inspections (Article 4, paragraph 2, line 3); privacy and integrity of the individual, in particular as regards the protection of personal data (Article 4, paragraph I.b); and commercial interests of a natural or legal person, including intellectual property (Article 4, paragraph 2, line 1). In its letter, OLAF also explained that, within 15 days, the complainant could submit a confirmatory application to OLAF's Director General.

(iii) Request to have the names of OLAF's investigators and other officials responsible for the inquiry disclosed: OLAF refused to provide this information pursuant to articles 2 and 8(b) of the EC Regulation 45/2001 concerning the protection of personal data. OLAF contended that neither of the two requirements necessary to authorise the transfer personal data were met in this case, namely the complainant had not proved why the data had to be disclosed and, moreover, the officials concerned had refused to authorise the transfer of their personal data.

OLAF therefore concluded that its letter of 10 February 2006 had properly replied to the complainant's requests. The letter also gave the complainant the opportunity to submit observations which might have led OLAF to review its assessment of the case. The complainant, however, did not react to that invitation. OLAF enclosed with its opinion a copy of its reply in Spanish to the complainant.

The complainant's observations

On 14 June 2006, the complainant sent an e-mail to the Ombudsman in which he stated his intention to submit observations on OLAF's report. The complainant also complained in his e-mail against the fact that OLAF had replied to him in French whereas he had the right to have that information in Spanish.

Further to that e-mail, the Ombudsman has received no observations from the complainant.

THE DECISION

1 Alleged failure on the part of OLAF to reply to the complainant's queries

1.1 The complainant alleges that OLAF failed to reply to his requests for information on the handling of his complaint, in particular as regards his letter of 5 January 2006.

The complainant explains that, in 2004, he complained to OLAF against an alleged fraudulent use of EU funds by a private Foundation in Spain. He telephoned OLAF on a number of occasions in which he requested information on the inquiry. In the absence of a reply to his queries, the complainant requested the information in an email dated 5 January 2006.

1.2 OLAF argues that, on 10 February 2006, it sent a letter to the complainant in reply to his email of 5 January 2006. The letter addressed each of his three queries.

OLAF explains that it had been unable to inform the complainant of the results of its inquiry earlier since it had only obtained his contact details following receipt of his email of 5 January 2006.

1.3 In a further communication, the complainant states that OLAF had replied to him in French, whereas he has the right to have that information in Spanish.

1.4 In view of the available information, it appears that, even though the complainant telephoned OLAF on a number of occasions since 2004 in which he complained against an alleged instance of fraud committed by a Spanish organisation, he had not received any information on the follow-up to his complaint. The Ombudsman notes, however, that OLAF has justified the situation on the grounds that it could not inform the complainant of the state of the inquiry because he had not provided OLAF with his contact details. In the absence of any information which may question OLAF's explanation, the Ombudsman finds that OLAF's position appears to be reasonable.

1.5 The Ombudsman further notes that, in reply to the complainant's e-mail of 5 January 2006, OLAF sent him a letter dated 10 February 2006 which addressed each of the three queries made in his e-mail of 5 January 2006. In view of the fact that OLAF has replied to the complainant's correspondence, the Ombudsman therefore considers that OLAF has taken appropriate action to deal with the problem, and therefore no further inquiries appear to be justified as regards this aspect of the case.

1.6 The Ombudsman points out that, even though the complainant has argued in a further communication that the information he received from OLAF was drafted in French rather than in his Spanish mother tongue, an examination of the letter which OLAF sent the complainant on 10 February 2006, a copy of which was enclosed with its opinion, reveals that this communication was in fact drafted in Spanish. The Ombudsman therefore considers that no further inquiries appear to be justified as regards this aspect of the case.

1.7 Even though OLAF has offered in its opinion a detailed explanation in support of its position to refuse access to the documents requested by the complainant, the Ombudsman considers it unnecessary to comment on that substantive reasoning in view of the fact that the only allegation made in the complaint concerned OLAF's failure to reply to the complainant.

2 Conclusion

On the basis of the Ombudsman's inquiries into this case, the Ombudsman finds that no further inquiries are necessary as regards the complainant's allegation. The Ombudsman therefore closes the case.

The Director-General of OLAF will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS