European Ombudsman
Inadmissible, no ground(s) or dropped before inquiry complaint summary
COMPLAINT: 331/2015/PMC
NO GROUNDS
CONFIDENTIAL:
YES;
NO
If confidential, please state reason:
Confidential at request of complainant, or
Confidential following EO decision (Implementing Provisions, Article 10(1)):
To protect the interests of the complainant
To protect the interests of a third party
Please explain:
1. INSTITUTION, BODY, OFFICE, OR AGENCY COMPLAINED AGAINST:
European Commission
EPSO
European Parliament
Council of the European Union
Court of Justice of the European Union
Court of Auditors
Other (please specify):
Concerning:
The complainant's public access to documents request
Main facts:
On 2 November 2014, the complainant requested, through the online portal 'asktheeu'
and in accordance with Regulation 1049/2001, public access to metadata concerning all
ARES documents registered between 1 and 31 October 2014, and classified under the
heading codes '02.02.03.005 ('Processing of requests for access to documents') '
or
'01.05.03.020.020 ('Ombudsman')', including under the relevant sub-codes. The
complainant asked to receive the documents in an electronic format which could be
further processed, such as MS Word.
On 10 November 2014, the Commission acknowledged receipt of his access request,
which was registered under the reference Gestdem 2014/5303. The Commission
informed the complainant that the deadline to reply to his initial application expires on 1
December 2014.
On 4 December 2014, the complainant submitted a confirmatory application, given that
the Commission had not replied to his initial application within the deadline.
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European Ombudsman
Inadmissible, no ground(s) or dropped before inquiry complaint summary
On 5 December 2014, the Commission informed the complainant that it had to postpone
the deadline for replying to his initial application by an additional 15 working days, that
is, to 22 December 2014.
On 7 December 2014, the complainant contested what in his view constituted certain
administrative shortcomings in the Commission's handling of his access request,
including the fact that the Commission had informed him of the need to extend the
deadline to reply only after the relevant deadline had already ended.
On 19 December 2014, the Commission informed the complainant that, following his
previous correspondence constituting a confirmatory application, the necessity to
provide a reply to his initial application became redundant. The Commission also
provided some general information concerning the documents requested by the
complainant and the administrative steps needed to reply to his request. It further stated
that the handling of his request would represent a disproportionate workload for the
Commission services. The Commission thus requested the complainant to further clarify
his request, in accordance with Article 6(2) of Regulation 1049/2001. It attached a list of
documents which it had identified as falling within the complainant's access request.
On 10 January 2015, the complainant challenged the Commission's view that his
request was disproportionate, justifying the limiting of the processing of his application.
On 27 January 2015, the Commission stated that even though the complainant had not
provided the requested clarifications, it considered his last message as the basis on which
it would further handle his access request and also as the basis in relation to which it had
to calculate the applicable deadline (2 February 2015).
On 18 February 2015, the Commission replied to the complainant's confirmatory
application, explaining that due to the need to conduct inter-service consultations, it was
unable to reply to the complainant's initial application within the relevant deadline. It
stated that, on 5 December 2014, it had sent him a letter postponing the deadline until 22
December 2014. However, given that the complainant had in the meantime submitted a
confirmatory application which overlapped with the Commission's letter, the
Commission decided directly to deal with the complainant's confirmatory application
instead of first replying to his initial request. The Commission then referred to its letter
of 19 December 2014, in which it had asked the complainant to clarify his access
request. It explained that without prejudice to the question of whether metadata in Ares
constitute single documents within the meaning of Regulation 1049/2001, the principles
of the Court's ruling in case
Dufour v ECB apply, that is, that it must be possible to
extract metadata through a normal and routine search in the database, without having to
develop a new software or to establish of a new classification system. The Commission
then disclosed
the
documents classified under Ares code '01.05.03.020.020
('Ombudsman')' for the entire month of October 2014. It added that it did not grant
access to the relevant personal data, since the complainant had failed to provide
arguments justifying the need to receive them. Finally, the Commission informed the
complainant about the remedies available to him in relation to its decision.
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European Ombudsman
Inadmissible, no ground(s) or dropped before inquiry complaint summary
On 22 February 2015, dissatisfied with the above confirmatory decision, the
complainant turned to the Ombudsman.
In his complaint, the complainant put forward the following allegation and claim:
Allegation
The Commission failed properly to handle the complainant's request for public access to
documents.
In support of his allegation, the complainant put forward the following arguments.
1. The documents disclosed by the Commission on 18 February 2015 were not
provided in an electronic format which could be further processed, as requested
by the complainant.
2. The Commission wrongly dealt only with one part of the complainant's access
request, as it had disclosed only documents related to one heading code. However,
the complainant had requested access to documents classified under the heading
codes '02.02.03.005 ('Processing of requests for access to documents') '
or
'01.05.03.020.020 ('Ombudsman')', where 'or' needs to be interpreted not as
implying a choice as regards the two, but rather as a logical 'and'.
3. The Commission's request addressed to the complainant to clarify his access
request was unjustified, as Article 6 of Regulation 1049/2001 does not allow the
Commission to limit an application one-sidedly.
4. The Commission failed to provide a substantive reply to the complainant's
messages of 7 December 2014 and 10 January 2015.
Claim
The Commission should grant full access to the requested documents or properly justify
its decision not to do so.
3. ANALYSIS
3.1 If inadmissible, tick one or more of the following reasons:
Complainant not identified (Art. 2.3)
Object not identified (Art. 2.3)
Being dealt with or already dealt with by a court (Arts. 1.3 and 2.7)
Time limit exceeded (2 years limit) (Art. 2.4)
No prior administrative approaches made (Art. 2.4)
Internal remedies not exhausted in staff cases (Art. 2.8)
'Unauthorised' complainant who complains against EU institution (Art. 2.2)
It is separately proposed to open a related own initiative inquiry
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European Ombudsman
Inadmissible, no ground(s) or dropped before inquiry complaint summary
It is
not proposed to separately open a related own initiative inquiry,
for the following
reasons:
3.2 If no grounds (Art. 228), tick one of the following
:
Dealt with or being considered by another competent body (please specify):
PETI Committee (EP);
OLAF;
EDPS;
Other body (specify)
:
Other reasons for not opening an inquiry (specify):
The Commission's position as regards the complainant's access to documents requests is
reasonable. Moreover, the complainant did not bring forward any valid arguments
challenging it.
(1) In its letter of 18 February 2015, the Commission referred to the Court's ruling in
Dufour v ECB. Given that the Commission clearly does not appear to hold the relevant
documents in a format as requested by the complainant, the Commission cannot be
reproached in this respect.
(2) The complainant's access request expressly contains an '
or' in relation to the two
relevant heading codes. It is thus clear that the complainant's request was not entirely
clear and left the Commission a choice for which it cannot be criticised.
(3) The Commission requested clarifications from the complainant. However, nothing
suggests that the complainant actively tried to help the Commission better understand his
request.
(4) The Commission sufficiently addressed the points which the complainant had raised
in his correspondence of 7 December 2014 and 10 January 2015 in its letters of 19
December 2014 and 27 January 2015, respectively.
In view of the above, there are no grounds justifying opening an inquiry into the
Commission's refusal to grant access to the requested documents.
3.3. Dropped by complainant before inquiry
4. PROPOSAL FOR ACTION
Proposal: To close the case in line with the above reasoning
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European Ombudsman
Inadmissible, no ground(s) or dropped before inquiry complaint summary
Information/advice?
YES - What? [SELECT FROM LIST]
More detail(s), if needed:
NO - Please state reason(s):
Transferred? (Tick only, if transferred)
YES - Where? [SELECT FROM LIST]
More detail(s), if needed:
5. APPROVAL CIRCUIT (For LOs to fill out. A copy of the email approving the final version should be
included in the signataire for dispatch.)
If inadmissible or dropped before inquiry:
HCIU: [SELECT FROM LIST]
Date:
SG:
Date:
If no grounds or unauthorised complainant (note: only no ground decisions require language check):
HCIU:
[SELECT FROM LIST]
Date:
Director: [SELECT FROM LIST]
Date:
Language:
Date:
SG:
Date:
YES, this summary has been saved in the relevant complaints' summaries folder on the common
drive.
(This allows the document to be searched on SISTEO. It should be done as soon as possible after the
necessary approval(s) have been given and before the signataire is handed to the Registry).
CONFIDENTIAL:
YES;
NO
Complaint date:
22 Feb 15
Complainant's
Mr Guido Strack
name:
Date registered:
Represented by
(if
applicable):
Summary date(s): 5 March 15
Country of address: DE
Language:
DE
Nationality:
DE
KIND OF COMPLAINANT
Physical person:
Man
If applicable,
MEP
Woman
If applicable,
EU staff
Legal Person:
Company;
Lawyer's office;
Association/ Non-profit/ NGO
Other (specify):
TRANSMISSION
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European Ombudsman
Inadmissible, no ground(s) or dropped before inquiry complaint summary
Directly;
by MEP;
by PETI Committee;
other (specify):
KEYWORDS
Keyword(s) 1- Eurovoc:
Object not identified - only
European School
Political parties
use for inadmissible/outside
European symbol
Pollution
mandate (not in the official
Europol
Press
EUROVOC list)
Extradition
Prices
Administrative competition
Foreign policy
Prisons
[Institution/Agency/Body]
Fraud
Promotion
Administrative transparency
Free movement of capital
Protection of animals
Adoption law
Free movement of goods
Psychological harassment
Aid to agriculture
Free movement of persons
Public services
Air transport
Freedom to provide services
Racism and xenophobia
Banking system
Grant
Rail transport
Border control
Health care
Real property
Child protection
Health policy
Recognition of diplomas
Climate
Humanitarian aid
Refugee
Competition law
Immigration
Research
Construction policy
Insurance
Road transport
Consumer protection
Intellectual property
Sea transport
Cooperation policies
Leave
Sexual harassment
Corruption
Libel and slander
Social policy
Courts and tribunals
Member of Parliament
Social security
Data protection
Migrations
Structural funds
Disabled person
National implementing
Subsidy
Disciplinary proceedings
measure
Supervision of medicinal
Divorce
National/Regional
products
Driving licence
Ombudsmen and similar
Taxation
Duties and rights of civil
bodies (not in the official
Telecommunications
servants
EUROVOC list)
Terrorism
Employment
OLAF
Trans-European networks
Environmental policy
Organisation of elections
Unemployment
Equal treatment
Pay
Use of languages
EU charter of fundamental
Payment
Visa policy
rights
Pensions
Waste
European citizenship
Petitions
Working time
ECHR
Police
NOTE: Keywords "2", "3" and "4" are only necessary for no grounds complaints. It is possible to select
several key words in each list.
Keyword(s) 2 - Field of law:
Agriculture
Energy
Law relating to undertakings
Area of freedom, security
Environment, consumers and
People's Europe
and justice
health protection
Regional policy and
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European Ombudsman
Inadmissible, no ground(s) or dropped before inquiry complaint summary
Common Foreign and
External relations
coordination of structural
Security Policy
Freedom of movement for
instruments
Competition policy
workers and social policy
Right of establishment and
Customs Union and free
Fisheries
freedom to provide services
movement of goods
General, financial and
Science, information,
Economic and monetary
institutional matters
education and culture
policy and free movement of
Industrial policy and internal
Taxation
capital
market
Transport policy
If useful, legal act(s):
Keyword(s) 3 - Type(s) of (mal)administration:
Lawfulness (incorrect
Reply to letters in the
Data protection (includes
application of substantive
language of the citizen,
failure to grant access to one's
and/or procedural rules)
indicating the competent
file) [Article 21 ECGAB]
[Article 4 ECGAB]
official [Articles 13 and 14
Requests for information
Absence of discrimination
ECGAB]
[Article 22 ECGAB]
[Article 5 ECGAB]
Obligation to transfer to the
Requests for public access to
Proportionality [Article 6
competent service of the
documents [Article 23
ECGAB]
Institution [Article 15
ECGAB] (OBLIGATORY and
Absence of abuse of power
ECGAB]
only used for complaints
[Article 7 ECGAB]
Right to be heard and to
concerning the application of
Impartiality, independence
make statements [Article 16
Regulation 1049/2001)
and objectivity [Articles 8 and
ECGAB]
Duty of care
9 ECGAB]
Reasonable time-limit for
Other rights and duties
Legitimate expectations,
taking decisions [Article 17
resulting from the Staff
consistency and advice
ECGAB]
Regulations and not covered
[Article 10 ECGAB]
Duty to state the grounds of
by the above list
Fairness [Article 11 ECGAB]
decisions and the possibilities
Other rights and duties
Courtesy [Article 12 ECGAB]
of appeal [Articles 18 and 19
resulting from the Charter of
ECGAB]
Fundamental Rights and not
Notification of the decision
covered by the above list
[Article 20 ECGAB]
Keyword(s) 4 - Subject matter of the case:
The Commission as Guardian of the treaties: Article 258 of the TFEU (ex Article 226 of the EC Treaty)
Dealing with requests for information and access to documents (Transparency)
Award of tenders or grants
Execution of contracts
Competition and selection procedures (including trainees)
Administration and Staff Regulations
Institutional and policy matters
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European Ombudsman
Inadmissible, no ground(s) or dropped before inquiry complaint summary
TRANSMISSION DATA:
ANNEX(ES):
[If applicable, please insert here the reference(s) of document(s) enclosed with the
outgoing letter(s). This information is needed by the Registry. Also specify what exact pages are
concerned, where applicable.]
Letter of inadmissibility
Attachment(s):
EO leaflet
Committee on Petitions of the European Parliament leaflet
Other:
Original complaint (copy the complaint for the EO's file - Send by registered post)
No grounds decision/simple letter
Original Decision to the complainant
Letter to President of the Institution
Copy of the decision in EN
(cc:
)
Transfer of a complaint
Letter to Institution + Original of the complaint (send
by registered post)
Letter to inform the complainant
(Copy the complaint for the EO's file)
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