Principles applicable to the bodies responsible for out-of-court settlement of consumer disputes
Dear Secretariat General (SG),
Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:
How many and to what extent member states [1] have embraced the European Commission Recommendation 1998/257/EC [2]
(1) the recommendations
(2) the national ombudsman that fit the criteria set out in Annex G of the document [2]
I am particularly referring to all recommendations from page 47 onward of the document [2], including the idea of creating "a database of the out-of-court bodies responsible for resolving consumer disputes that offer these safeguards". [3]
3) Which member states do not have at least one member (ombudsman) that is part of (is a member of) FIN-NET.
4) Which member states (who are part of FIN-NET) have (do not have) ombudsman that do not cover the following products:
a) payments,
b) deposits,
c) credit & loans,
d) mortgages,
e) life/non-life insurance
f) investments,
g) pensions,
h) securities
i) electronic money
5) Where there is no ombudsman part of FIN-NET in a member state, does the consumer rights protection centre in that respective member state offer the same level of protection as an ombudsman for the products listed in (4).
Yours faithfully,
Mr Kushra Navartne
[1] - Also EEA countries - please include both member states and EEA countries for this FOI request.
[2] - set-out in the world bank report - Resolving disputes between consumers and financial businesses: Fundamentals for a financial ombudsman, Annex A -
available at:
http://siteresources.worldbank.org/EXTFI...
[3] - see document - commission recommendation - 98_257_EC_ang.pdf - first published 30 March 1998
available at:
http://www.konsument.gov.pl/uploads/adr/...
Dear Mr. Navartne,
Thank you for your request for access to documents sent on 12/05/2014 (see
below).
Unfortunately you have not indicated your postal address that is required
for registering and handling your request in line with the procedural
requirements. Please send us your full postal address at your earliest
convenience. Pending your reply, we reserve the right to refuse the
registration of your request.
You also may, of course, use directly the electronic form for entering
your request :
[1]http://ec.europa.eu/transparency/regdoc/....
Best regards,
BLURIOT-PUEBLA Madeleine
Cellule 'Accès aux documents'
European Commission
SG/B/4 - Transparence
BERL 05/330
B-1049 Brussels/Belgium
+32 2 296 09 97
[2][email address]
Dear Secretariat General (SG),
It seems that you only ask for the full postal address for some request. The following requests did not need a postal address:
http://www.asktheeu.org/en/request/who_h...
http://www.asktheeu.org/en/request/un_gu...
http://www.asktheeu.org/en/request/corre...
http://www.asktheeu.org/en/request/exter...
The following request you did ask for a full postal address:
http://www.asktheeu.org/en/request/commi...
Please state the particular procedural requirement that you mention. If it is an article/procedure in Regulation 1049/2001, I have not been able to locate the particular article/procedure prompting the need for a full postal address.
Even if it is a requirement under a European regulation, are you sure that conventional rights established by treaty or convention does not supersede such a regulation.
I would imagine that all persons are able to make a request, including the homeless (those without a fixed postal address) and the destitute.
Unless you are able to clarify and say for certain that the regulation you mention does supersede all other conventional rights established by treaty or convention I am unable to provide a postal address at this stage.
If we do need to invoke administrative or legal redress procedures I will consider providing a postal address at the appropriate stage of the procedure.
May I please refer you to Article 2.6 in Regulation 1049/2001:
This Regulation shall be without prejudice to rights of public access to documents held by the institutions which might follow from instruments of international law or acts of the institutions implementing them.
Please process the request in its entirety with the requested documents supplied in electronic format to the asktheeu.org e-mail address.
Yours faithfully,
Mr Kushra Navartne
Dear Mr Navartne,
With respect to your questions regarding the provision of a postal address
(copied below), my Head of Unit, Mr Martin Kröger, asked me to reply to
you on his behalf.
On 1 April 2014, the postal address became a mandatory field for the
purpose of introducing a request for access to documents (this is why the
postal address was not asked for the four requests published on the
Ask-the-EU website, to which you refer in your message, which were lodged
before 1 April).
The decision to ask for a postal address from applicants for access to
documents was triggered by the following considerations:
* The need to obtain legal certainty as regards the date of receipt of
the reply by the applicant under Regulation 1049/2001. Indeed, as
foreseen by Article 297 of the Treaty on the Functioning of the
European Union (TFEU), […] decisions which specify to whom they are
addressed, shall be notified to those to whom they are addressed and
shall take effect upon such notification. Replies triggering the
possibility for administrative or judicial redress are therefore
transmitted via registered mail with acknowledgement of receipt. This
requires an indication of a valid postal address by the applicant;
* The need to direct the Commission's scarce resources first of all to
those requests which have been filed by "honest and serious"
applicants. With only a compulsory indication of an e-mail address,
applicants can easily introduce requests under an invented identity or
under the identity of a third person. Asking for a postal address
helps the Commission to protect the administration, as well as other
citizens and legal persons, from abuse.
* For similar reasons, asking for a compulsory indication of a postal
address enables the Commission services to verify whether Article 6(3)
of the Regulation, on voluminous requests, is being evaded by
introducing several requests under different identities. Indeed, in
its Ryanair judgment, the General Court confirmed that Article 6(3)
cannot be evaded by splitting the application into a number of
applications Judgment of the General Court in case T-494/08, Ryanair
Ltd v Commission, paragraph 34.;
* Knowing whether the applicant is an EU resident in the sense of
Article 2(1) of Regulation 1049/2001 is a precondition for the purpose
of correctly applying the exception in Article 4(1)(b) of Regulation
1049/2001 (protection of the privacy and integrity of the individual),
which has to be interpreted in accordance with Data Protection
Regulation 45/2001 Judgment of the Court of Justice of 29 June 2010 in
case C-28/08 P, Commission v Bavarian Lager, paragraphs 56-63..
Article 9 of Regulation 45/2001 requires the adequacy of the level of
protection afforded by the third country or international organisation
when transmitting personal data to third-country residents or legal
persons. It follows that, in case of requests for documents which
include personal data, the correct application of the data protection
rules cannot be ensured in the absence of a postal address enabling
the Commission to ascertain that the minimum data protection standards
will be respected.
This policy is also fully in line with Regulation 1049/2001, which
provides that any natural or legal person residing or having its
registered office in a Member State has a right of access to documents,
subject to the principles, conditions and limits defined in that
Regulation. Asking for a postal address is the only means to assess
whether citizens applying for access to documents do indeed reside or have
their registered office in a Member State, and therefore fall within the
personal scope of the Regulation. As indicated above, Article 1 of the
Detailed Rules of Application of Regulation 1049/2001 Official Journal L
345, 29.12.2001, p. 94. extends the right of access to third-country
citizens, but in that case the Commission must be able to verify whether
the data protection rules in the country of residence are adequate from a
data protection point of view.
Please note also that other institutions, such as the Court of Justice,
already ask for the address in their respective electronic forms for
access to documents requests.
As regards your offer to provide a postal address in the framework of
possible administrative or legal redress procedures, I'm afraid that this
would be too late for the purpose of establishing the required legal
certainty as regards the date of introduction of your access-to-documents
request.
We therefore kindly reiterate our request to you to provide a full postal
address, so we can duly register and handle your request.
Martine Fouwels
European Commission
Secretariat-General
Unit B4 (Transparency)
Dear Secretariat General (SG),
Are requester’s able to send you their full postal address by e-mail to your registered e-mail address listed (after entering the reCAPTCHA code) at the location below:
http://www.asktheeu.org/en/body/dg_sg/vi...
Yours faithfully,
Mr Kushra Navartne
Dear Mr Navartne,
Yes, you may send an email to that address to submit your postal address.
Best regards,
ACCESS TO DOCUMENTS TEAM
European Commission
Secretariat General
Unit SG.B4 – Transparency
Dear Secretariat General (SG),
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Secretariat General (SG)'s handling of my FOI request 'Principles applicable to the bodies responsible for out-of-court settlement of consumer disputes'.
I have duly noted your reply on 15 May 2014, and would like the following to be taken into account for the purposes of an internal review: (your comments are enclosed in *, and my responses directly below)
* The need to direct the Commission's scarce resources first of all to those requests which have been filed by "honest and serious" applicants. With only a compulsory indication of an e-mail address, applicants can easily introduce requests under an invented identity or under the identity of a third person. Asking for a postal address helps the Commission to protect the administration, as well as other citizens and legal persons, from abuse.*
With regards to your initial comment about "honest and serious" applicants. You seem to be laying a blanket policy on all applicants that they are not "honest and serious" without considering each application on its merits. The provision for a postal address does not automatically make the applicant "honest and serious". Also, providing a postal address cannot make a requestor more or less of an "honest and serious" applicant . It is not clear how you avoided any invented identity applications before 01 April 2014, you clearly had done. You do not mention how this suddenly became a problem as of 01 April 2014, [1] so it seems the reason "protect the administration" is not qualified.
* For similar reasons, asking for a compulsory indication of a postal address enables the Commission services to verify whether Article 6(3) of the Regulation, on voluminous requests, is being evaded by introducing several requests under different identities. Indeed, in its Ryanair judgment, the General Court confirmed that Article 6(3) cannot be evaded by splitting the application into a number of applications Judgment of the General Court in case T-494/08, Ryanair Ltd v Commission, paragraph 34.; *
The court case you refer to do not bear any relevance to what is under discussion; the requirement of a full postal address. [2] Article 6(3) reads:
"In the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution."
This is applicable only to requests of a "long document" or a "large number of documents", for a particular request, not a group of request. Also, you were not conferring with me to determine if we can come to a fair solution. Actually, you have not even looked at the request to determine if it relates to a long document or is to do with a large number of documents.
You seem to be pre-determining that each request (is) will undoubtedly lead to a large number of requests in the form of split-request, and using the T-494/08, Ryanair Ltd v Commission as your modus operandi. Referring and using the T-494/08, Ryanair Ltd v Commission to effect a blanket policy, that has no relevance to what is under scrutiny. i.e. the need/requirement for a postal address for processing an FOI request.
* Knowing whether the applicant is an EU resident in the sense of Article 2(1) of Regulation 1049/2001 is a precondition for the purpose of correctly applying the exception in Article 4(1)(b) of Regulation 1049/2001 (protection of the privacy and integrity of the individual), which has to be interpreted in accordance with Data Protection Regulation 45/2001 Judgment of the Court of Justice of 29 June 2010 in case C-28/08 P, Commission v Bavarian Lager, paragraphs 56-63..Article 9 of Regulation 45/2001 requires the adequacy of the level of protection afforded by the third country or international organisation when transmitting personal data to third-country residents or legal persons. It follows that, in case of requests for documents which include personal data, the correct application of the data protection rules cannot be ensured in the absence of a postal address enabling the Commission to ascertain that the minimum data protection standards will be respected. *
The aforementioned would only be relevant for personal information. FOI information is published on the public domain. Therefore, the paragraphs you mention only apply to requests where the application is for personal data, where "personal data is sought". The paras 56-57 state " When personal data is sought, the Data Protection Regulation requires the recipient to establish the need for disclosure, and the subject retains the right to object at any time.
I am not asking for anyone’s personal data. The need/requirement of a full postal address will not disparage or enhance the data protection aspect. Please see continuation below ....
* This policy is also fully in line with Regulation 1049/2001, which provides that any natural or legal person residing or having its registered office in a Member State has a right of access to documents, subject to the principles, conditions and limits defined in that Regulation. Asking for a postal address is the only means to assess whether citizens applying for access to documents do indeed reside or have their registered office in a Member State, and therefore fall within the personal scope of the Regulation. As indicated above, Article 1 of the Detailed Rules of Application of Regulation 1049/2001 Official Journal L345, 29.12.2001, p. 94. extends the right of access to third-country citizens, but in that case the Commission must be able to verify whether the data protection rules in the country of residence are adequate from a data protection point of view. *
When a requestor applies for data there is no restriction as to where they access the data from. The data is publicly accessible. It does not bear any relevance if the county where the requestor accesses the data has data protection laws or not, unless you are asserting the implausible and ridiculous proposition that this information is exclusively accessible only in countries where there are data protection laws. i.e. you are able to prevent a requestor who has provided a full postal address moving to a country without data protection laws and accessing the same information. [3]
* Please note also that other institutions, such as the Court of Justice, already ask for the address in their respective electronic forms for access to documents requests. *
Again, each institution may have their own policies and procedures. Your polices, although may be influenced by the Court of Justice policies, are not entirely dependent on it.
* As regards your offer to provide a postal address in the framework of possible administrative or legal redress procedures, I'm afraid that this would be too late for the purpose of establishing the required legal certainty as regards the date of introduction of your access-to-documents request. *
Clearly, you did have provisions in place before 01 April 2014 for administrative and legal redress procedures and you had managed to affect these procedures before this date. Providing a postal address at the time of request or thereafter does not in any way enhance or diminish the already established date of introduction of my access-to-documents request.
I made this FOI request with the legitimate expectation that it will be fulfilled, without the need/requirement of a full postal address. In the absence of a directive [1] expressing the requirement for a full postal address I could not have with certainty been aware of such an eventuality.
A full history of my FOI request and all correspondence is available on the Internet at this address: http://www.asktheeu.org/en/request/princ...
Yours faithfully,
Mr Kushra Navartne
[1] - Please see Opel Austria v Council [1997] ECR II-39 Case T-115/94
[2] - The article 4.2 of regulation 1049/2001 is more applicable to this case.
[3] - and that the information will only be available to that particular requestor.
Dear Mr Navartne,
In reply to your e-mail of 26 May, copied below, please note that this new approach to ask for a postal address does indeed constitute a change of policy (before 1 April 2014 the Commission did not systematically ask for a postal address): it is precisely because of the various problems encountered by the Commission in its previous practice (legal uncertainty, false identities used etc.) that the Commission decided to change its policy in this respect. By way of illustration, in 2012/2013, the Commission received some 57 confirmatory requests from what it suspects to be one single applicant operating under 13 different identities. The cited case law (Ryanair) is relevant in that respect, as we were in that case clearly in a situation of splitting of applications and an evasion of the relevant provisions of Regulation 1049/2001.
Asking for a postal address helps the Commission to protect the administration, as well as other citizens and legal persons, from abuse.
As regards the other arguments raised by you, we think that these have been sufficiently addressed in our initial explanations.
We therefore kindly reiterate our request to you to provide a full postal address, so we can duly register and handle your request. Please note that, once we receive your postal address, we will send your request for access to the responsible Commission service for treatment as an initial application for access to documents in the meaning of Article 6(1) of Regulation 1049/2001. The deadline for handling your initial request shall run as from the moment of registration of your request following the submission of your postal address.
As your application has not been dealt with yet at the initial level pending the receipt of your postal address, the Secretariat-General is not in a position to adopt a confirmatory decision. Your message can therefore not be considered as a confirmatory application in the meaning of Article 7(2) of Regulation 1049/2001.
Kind regards,
ACCESS TO DOCUMENTS TEAM
European Commission
Secretariat General
Unit SG.B4 – Transparency
Dear Secretariat General (SG),
Thank you for your reply.
You have highlighted the 57 confirmatory requests operating under 13 identities coming from a single applicant. This issue could be resolved by asking for the address at the confirmatory request stage. [1] From your previous replies it seems you are saying it is too late then. But shouldn't a query (request) reach that stage to invoke administrative and legal redress anyway.
I cannot help but wonder, that all this could be easily resolved by asking the applicant for her/his address if you suspect a similar request coming from the same applicant, not at her/his initial application but any subsequent application, when you detect that it is from the same applicant. I am confident that you will be able to figure this out competently.
Additionally, are you able to say which member states actually ask for a mandatory postal address when dealing with freedom of information requests.
Your policy seems completely out-of-step with those of member states, where an e-mail address is sufficient.
Yours faithfully,
mr kushra navartne
[1] - Unless you discovered they were from a single applicant at the confirmatory stage.