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Décision dans l'affaire 429/2007/PB - Accès du public aux documents: absence d'information sur la perception de redevances et autres erreurs de procédure
Decision
Case 429/2007/PB - Opened on Thursday | 06 September 2007 - Decision on Thursday | 19 February 2009
Le plaignant a demandé un très grand nombre de documents en vertu du règlement (CE) n° 1049/2001 relatif à l'accès du public aux documents des institutions de l'UE.
Le plaignant a accepté un «arrangement équitable» visant à limiter la portée de sa demande. Néanmoins, le nombre de documents concernés était encore élevé. La Commission a proposé de fournir certains de ces documents sur un CD-ROM, ce que le plaignant a accepté. La Commission a demandé au plaignant de payer une redevance pour les nombreux documents sur support papier qui devaient encore être réunis et fournis.
Dans sa plainte auprès du Médiateur, le plaignant a critiqué la Commission sur plusieurs points. En particulier, il a reproché à la Commission de ne pas avoir traité ses demandes d'accès ponctuellement et de ne pas lui avoir donné les informations adéquates quant aux redevances exigées, qu'il considérait trop élevées (0,10 EUR par feuille de papier).
Le Médiateur a estimé que la Commission avait, en effet, traité les demandes d'accès avec un retard important, ce qui correspondait à un acte de mauvaise administration. Il a formulé une remarque critique à cet égard.
S'agissant de la question des redevances, le Médiateur a fait remarquer que l'institution jouit effectivement d'une base juridique lui permettant de percevoir des redevances. Néanmoins, de telles redevances ne peuvent pas être imposées automatiquement, mais plutôt au cas par cas, au titre d'une décision administrative relevant du pouvoir d'appréciation de la Commission. Pour imposer des redevances, il convient, dès lors, de respecter les normes pertinentes applicables au raisonnement des décisions administratives. Il y a lieu de préciser clairement les faits et la base juridique de la décision, en fournissant des données suffisantes pour permettre au plaignant d'exercer ses droits et aux organes de recours de procéder à un examen significatif de la décision. Plus précisément en l'espèce, ces normes impliquent qu'un demandeur doit recevoir des données suffisantes pour lui permettre de vérifier si la disposition suivante de l'article 10 du règlement (CE) n° 1049/2001 a été respectée: «[Ce coût] ne peut excéder le coût réel de la réalisation et de l'envoi des copies.»
Le médiateur a estimé que la Commission n'avait pas respecté les normes susmentionnées. Elle avait appliqué essentiellement une redevance automatique de 0,10 EUR par page, sans fournir aucune information quant à la manière dont ce montant avait été calculé. Cette pratique correspondait à un acte de mauvaise administration et le Médiateur a formulé une remarque critique à cet égard.
THE BACKGROUND TO THE COMPLAINT
1. The complaint concerns an application for public access to documents which the complainant, a former Commission official, submitted to the Commission in December 2006. In his application, the complainant asked for public access to all agendas, decisions, minutes and documents that had been adopted, handled, or intended for handling, by the 'Collège des chefs d'administration' over the preceding 10 years.
2. Not having received a reply to his application, the complainant made a confirmatory application to the Commission.
3. The complainant subsequently contacted the Commission because he had not received a reply within the deadline foreseen in 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 ('Regulation 1049/2001')[1].
4. In February 2007, the complainant submitted a complaint to the European Ombudsman. Due to an attempt, by the complainant, to seek a global solution to his numerous disputes with the Commission, and related support for this attempt by the European Ombudsman, the latter suspended his handling of all complaints from this complainant for a period of several months in 2007. The assessment on whether an inquiry should be opened on this particular complaint took place in August 2007.
5. In April 2007, the complainant sent additional information and comments relevant to the above-mentioned application for access to documents. These were taken into account for the assessment referred to in the preceding paragraph.
6. The complainant expressed numerous grievances regarding the Commission's handling of his access application. These grievances are set out as allegations below.
THE SUBJECT MATTER OF THE INQUIRY
7. On 6 September 2007, the Ombudsman decided to open an inquiry into the complainant's following allegations and claims:
Allegations
- There were unjustified delays in the handling of his access applications.
- Deadlines which the Commission itself set for the provision of documents were not respected.
- On a CD-ROM, the Commission wrongly provided the complainant with documents in an unspecified electronic format (one that he could not open with Windows XP).
- His requests for information regarding the electronic content of the CD-ROM were initially not replied to, and the reply that he eventually received was wrong.
- Some of the documents to which he had been promised access were not contained on the CD-ROM.
- The Commission offended the complainant by describing his requests concerning the above as not objective/inappropriate ("unsachlich").
- The Commission asked the complainant for a declaration that he would carry the costs for further provision of documents, yet without, in this respect, specifying the nature of the documents concerned.
- The Commission requested a fee of EUR 0,10 per page, yet without explaining this in more detail in its response to a request made by the complainant.
Claims
The Commission should:
- issue "a formal apology" and
- offer him "recompense, which, following the long procedure, could not constitute the provision of the documents requested".
8. The complainant also made the following allegations: (a) the Commission's failure to reply to his public access application in this case constitutes yet another element in its overall strategic attempt to wear him down, and (b) the Commission, through the its actions towards him in this and other cases, is and has been harassing him. The Ombudsman did not open an inquiry into these allegations because the complaint contained no evidence of compliance with Article 2(8) of his Statute, which lays down the requirement that all internal remedies must have been exhausted before complaints about work relations under the Staff Regulations can be addressed to the Ombudsman.
THE INQUIRY
9. On 6 September 2007, the Ombudsman asked the Commission to submit an opinion on the complaint. The Commission sent its opinion on 19 November 2007. The Ombudsman forwarded the opinion to the complainant, with an invitation to make observations. The complainant submitted his observations on 22 December 2007.
THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS
Preliminary remarks
10. The above-mentioned allegations will be regrouped as follows for purposes of assessment: first, allegations 1 and 2 will be dealt with; then allegations 3, 4 and 5; followed by allegations 7 and 8; and finally allegation 6. The claims will be dealt with separately at the end of the assessment.
11. In its opinion, the Commission gave a factual account of its correspondence with the complainant, which it is useful to set out in the following paragraphs.
The Commission's summary of the facts/events
12. On 10 December 2006, the complainant lodged his request for documents. The complainant asked for the documents in electronic format and said that if costs were involved, he should first be advised of this so that he could confirm his agreement. He added that if documents were in several language versions, he required only those in German, English and French. He also said that if references were made to third parties within these documents, the names could be blacked out. This, however, should not apply to officials simply carrying out their duties.
13. On 29 January 2007, the request was registered in the Commission's Secretariat-General (SG) under reference no 1210/07. The file was sent to the Directorate-General for Personnel and Administration (DG ADMIN) with a request to deal with the matter within a further period of 15 working days (that is, by 19 February 2007), which corresponded to the period provided for in Regulation 1049/2001.
14. On 13 February 2007, Mr J., Director of DG ADMIN.B, replied to the request stating that it covered some 1200 documents, some of which were not in electronic format. He suggested that, in view of the large number of documents requested, a fair solution should be sought as to the type or content of the documents requested and that this be discussed informally.
15. By e-mail of 14 February 2007 sent to Ms B., who works in DG ADMIN.B, the complainant informed the Commission, in summary, of how he envisaged the documents could be provided to him. He also informed the Commission that he had submitted a complaint to the European Ombudsman.
16. On 16 February 2007, Mr J. replied by letter stating that he gathered from the above e-mail that the complainant accepted a solution whereby a limit could be placed on the number of documents to which access would be given. In this regard, Mr J. suggested that the Commission could provide documents covering not the previous ten, but rather the previous three years. He added that, if the complainant agreed, the Commission would start collecting the documents and indicated that, given the number involved, this might take a little time.
17. On 20 February 2007, the complainant sent an e-mail to Ms B. (also addressed to Mr J.) stating, in summary, that he had actually envisaged a step-by-step solution for the provision of the documents. He also pointed out that he was not willing to accept a definite and final limitation to the scope of his application.
18. On 22 February 2007, Mr J. replied to the above message, stating that he had come to realise that the complainant would not accept a compromise solution limiting definitely the number of documents to which he could have access. However, the complainant did accept that the Commission could send him all documents from the last three years, as well as the minutes of 'Collège des chefs d'administration' meetings from the last ten years, providing that these documents gave a full overview of all the available documents and were despatched quickly. Mr J. added that the minutes in fact provided a full overview of all relevant decisions and available documents.
19. Mr J. then reiterated his suggestion for a compromise solution whereby the Commission would send all documents from the last three years and the minutes of 'Collège des chefs d'administration' meetings covering the last ten years. He added that if the complainant agreed to this, a first series of documents could be sent within seven days and the rest within a month. As regards the publication of those documents, the question would be discussed at the next meeting of the 'Collège des chefs d'administration'.
20. In his e-mail of 22 February 2007 to Ms B., the complainant stated, in summary, that in order to facilitate the handling of his application, he agreed to the above-mentioned proposal. He added that, following receipt of the documents, he would withdraw his complaint to the Ombudsman.
21. On 1 March 2007, Ms B. advised the complainant by e-mail that a first set of documents had been sent to him by post on a CD-ROM. She also outlined that the Commission reserved the right to charge him for photocopies made of documents for which only a paper version existed.
22. On 7 March 2007, the complainant sent an e-mail to Ms B. informing her that he had experienced difficulties in opening the CD-ROM and accessing the documents. He wrote to her again on 14 March stating that he was still awaiting a reply.
23. On 23 March 2007, the Commission sent the complainant an e-mail explaining how the CD-ROM could be opened (using Windows XP) and gave further details of the charges which could be applied for photocopying documents which did not exist in an electronic version.
24. On 24 March 2007, the complainant replied to the above e-mail. Bearing in mind that he had written asking for help on 7 March 2007, he considered it an administrative fault that he had not received earlier an explanation relating to the format in which the documents were transmitted.
25. He added that the presentation of the documents was chaotic, citing as an example the fact that, at the meeting of the 19 February 2004, reference was made to "Conclusion no 221" without any explanatory documents. He considered that this amounted to possible harassment and that the Commission was trying to deliberately mislead him. He asked that a numbered and dated list of documents be sent to him or, if that were not possible, for him to get the documents cost free because he considered the level of charges to be excessive.
26. In his reply of 30 March 2007, Mr J. pointed out that the level of costs in question was the recommended level set by the Secretariat-General and asked for the complainant's agreement to bear the Commission's costs on this basis. He added that the arguments on the other matters raised in the complainant's note were "unsachlich".
A. Allegations one and two regarding delays
Arguments presented to the Ombudsman
27. The complainant considered that there had been serious delays on the part of the Commission.
28. In its opinion, the Commission made the following remarks:
29. Bearing in mind the requirements laid down in Regulation 1049/2001, it is undeniable and regrettable that the registration of the complainant's access application of 10 December 2006 was late (29 January 2007). The service responsible for the type of documents in question only received the request after it was registered, which meant that correspondence with the complainant on the substance of his request was also late in relation to the date of his request. The Commission apologised for this delay.
30. However, the Commission stressed that, in its replies to the complainant, the service in question had acted without delay following its receipt of the complainant's letter and his relevant e-mails. To illustrate this, the complainant's e-mail of 14 February 2007 was replied to by the service on 16 February 2007 and his subsequent e-mail of 20 February 2007 was replied to on 22 February 2007. The latter reply contained a compromise proposal, which was accepted by the complainant. In doing so, he also stated that he would withdraw his complaint to the Ombudsman of 7 February 2007.
31. It therefore seemed reasonable to conclude that the complainant's position was that, by 22 February 2007, he no longer considered the delay and the failure to meet the deadline for replying to such requests set by the Commission (which admittedly existed at the date of his complaint on 7 February 2007) to be in any way problematic for him.
32. Consequently, the Commission understands the substance of his complaint essentially to relate only to allegations 3-8, namely, to problems encountered in connection with the transmission of the documents in question and in relation to the charges he might have to bear, as well as the use of the term "unsachlich", which he considers offensive.
33. In his observations, the complainant first rejected the Commission's above-mentioned apology. He stated that the apology was only based on a partial acknowledgment of the maladministration that occurred, and not genuine. He could therefore not derive any satisfaction from the said apology.
34. The complainant also argued that other delays had meanwhile occurred, and by way of an illustrative example referred to the correspondence that followed the registration of his application on 29 January 2007.
The Ombudsman's assessment
35. The complainant holds the view that, as far as this part of the case is concerned, the Commission was responsible for more delays than it acknowledged. It is therefore appropriate to examine this before assessing the apology issued by the Commission.
36. Article 7(1) Regulation 1049/2001 provides that access applications must be replied to promptly and, at any rate, within 15 working days from the date of registration. Article 7(3) provides that, in exceptional cases, "for example in the event of an application relating to a very long document or to a very large number of documents" the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.
37. Following the registration of the application on 29 January 2007, the Commission contacted the complainant on 13 February 2007 in order to seek a 'fair solution' under Article 6(3) of Regulation 1049/2001[2]. That was 11 working days after registration. Following additional correspondence between the parties, from 14 to 22 February 2007, the Commission sent the complainant certain documents which, it appears to have considered, fulfilled the fair solution found with the complainant on 22 February 2007. It appears from the correspondence that the Commission sent the documents to the complainant around 1 March 2007. This would have been 21 working days following the registration of the initial application. At any rate, it is certain that the complainant actually received the documents on 7 March 2007. This was 25 working days following the registration of the initial application.
38. It is correct to say that the Commission's granting of access to the documents did not take place within the 15-day time limit envisaged in Article 7(1) of Regulation 1049/2001. In principle, therefore, exceeding this limit would have required a (valid) formal extension of time, in accordance with Article 7(3) of the Regulation. However, the present case involves an applicant who is a former A-level Commission official with a legal education, who has considerable experience with Regulation 1049/2001. It is therefore reasonable to presume that he was aware that an extension, albeit not formal, had taken place. He has furthermore not disputed that his application concerned a very large number of documents and that the Commission's decision to try and seek a fair solution was, as such, appropriate. Finally, the steps taken by the Commission's services as from 13 February 2007, specifically with regard to seeking a fair solution under the Regulation, can reasonably be regarded as timely.
39. In light of the above, the Ombudsman makes the following findings:
- The complainant's initial application was, as acknowledged by the Commission, registered with delay.
- With regard to the Commission's actions following the registration of the application, and covering the period from 29 January to early March 2007, the Ombudsman finds that, under the circumstances of this case, the Commission acted in a timely fashion and thus without maladministration.
40. With regard to the Commission's above-mentioned apology, the Ombudsman welcomes the fact that the institution acknowledged the delay and attempted to remedy this through the said apology.
41. However, the Commission's designation of the registration as simply "late" - without any further information to reasonably explain the delay - constitutes a most cursory description of what happened. As noted above, Regulation 1049/2001 provides for the 'prompt' handling of access applications and lays down a time limit of 15 working days. The registration, on 29 January, of the complainant's application made on 10 December means that, in the absence of any valid explanations, the delay was very serious. An acknowledgement to that effect on the part of the Commission would have been most appropriate in the present case. Second, when a delay is very serious it would constitute a minimum demonstration of respect towards the individual concerned to indicate, even if briefly, the reasons accounting for the delay. In the present case, the Commission made no attempts to do so.
42. In light of the above, the Ombudsman notes that there was a serious delay in the Commission's handling of the initial application, which amounted to an instance of maladministration. He will therefore make a relevant critical remark below.
43. Given the particular circumstances of the relationship between the Commission and the complainant, which for a number of years has involved several disputes, some still ongoing, it is appropriate to emphasise that the Ombudsman's above findings only concern the specific facts of the present case. They are not meant, and should not be understood as such, to support the complainant's stated impression that the Commission is harassing him.
B. Allegations regarding the implementation of the fair solution agreed under Regulation 1049/2001: the wrong format of the CD-ROM; the failure to reply and the provision of wrong information; and the incomplete access
44. The complainant considers that the Commission committed maladministration when attempting to implement the fair solution agreed on 22 February 2007. This is because (a) the Commission wrongly provided him with documents on a CD-ROM which were reproduced in an unspecified electronic format (one that he could not open with Windows XP), (b) his requests for information regarding the electronic content of the CD-ROM were initially not replied to and the reply that he eventually received was wrong, and (c) some of the documents to which he had been promised access were not contained on the CD-ROM.
45. In its opinion, the Commission stated that it acted reasonably and promptly and gave no real cause for complaint. Over a period of less than seven weeks, it sent the complainant eleven messages and letters.
46. With specific regard to the method of transferring the documents by CD-ROM, the Commission stated that this method of transfer was preferred, in view of the considerable amount of the documents requested and the consequent difficulties of transmitting them by e-mail. Any form of transmission would have given rise to problems, given the inherent difficulty involved in dealing with so many PDF documents. It was necessary to send the documents in different stages. Where certain documents were accidentally omitted from one batch of documents transmitted, this omission could, with a little good will, easily have been remedied in the following batch.
47. In his observations, the complainant essentially maintained his allegations.
The Ombudsman's assessment
48. By way of preliminary remark, the Ombudsman notes the following: First, the Commission's opinion did not address the allegations here concerned in any particularly detailed manner. Second, the complainant has not disputed the utility of providing him with the documents on a CD-ROM, nor has he contested the view that human errors may be more likely to occur when handling large numbers of documents. Instead, the complainant made the specific allegations referred to further above.
49. With regard to these allegations, it is correct that some of the files ('.mdi' files) were not obviously known to the complainant, and that a normal user of computers would not necessarily know how to open such files[3]. It is also correct that the Commission did not provide a timely reply to the complainant on this issue. Eventually, however, following explanations from the Commission, the complainant managed to open the files that initially caused him problems. The complainant was also able to point out certain documents that he found to be missing.
50. It is clear that the Commission could have acted in a better way when providing the files on the CD-ROM. However, in the circumstances of the present case, the mistakes or oversights that occurred are not of a kind that necessitates a formal finding of maladministration and the issuance of a critical remark.
51. The Ombudsman would nevertheless like to point out that, in this specific case, it would have been possible for the Commission to aim at a more structured and practicable 'fair solution' envisaged under Article 6 of Regulation 1049/2001. Instead of primarily focussing on the quantitative aspect of the complainant's application and proposing to reduce the number of years for which the documents were to be provided, the Commission could have suggested to the complainant in the first place that it would grant him access to all the agendas and minutes of the 'Collège des chefs d'administration' meetings. These generally contain references to other documents and issues discussed. The complainant could therefore have been invited to point out subsequently the documents that he wanted to see. It is clear that the complainant is not a researcher doing a study on the work of the 'Collège des chefs d'administration'; instead, he is a former official who wishes to pursue a number of disputes with the Commission. His interest therefore lies in specific issues discussed by the 'Collège des chefs d'administration'.
52. In light of the foregoing, the Ombudsman makes a suggestion at the end of this decision regarding relevant action to be undertaken by the parties to the case.
C. Allegations regarding the charging of fees
Arguments presented to the Ombudsman
53. The complainant alleges that maladministration in this part of the case occurred because (a) the Commission asked him for a declaration that he would assume the costs of further provision of documents, without, however, in this respect, specifying the nature of the documents concerned; and (b) the Commission requested a fee of EUR 0,10 per page, without, however, explaining its request in more detail, when the complainant requested it to do so.
54. In its opinion, the Commission made the following points regarding this part of the case:
55. As to the question of charges, the complainant, in his messages sent in March 2007, considered them to be too high. However, it has been the Commission's practice, based on Article 7 of its decision[4] implementing Regulation 1049/2001, to charge the amount in question (EUR 0.10 per page) in cases where the volume of documents requested exceeds a certain amount of pages. This practice is adhered to, unless there is a good reason for not doing so, as for example in cases where the personal situation of the person concerned would warrant a different course of action. The purpose of the amount of EUR 0.10 per page for documents exceeding twenty pages is to compensate, at least in part, for the administrative costs which the Commission incurs when dealing with requests concerning very large documents or a substantial volume of documents. It is undisputed that the applicant's request concerned a large number of documents. In addition, the Commission has no information suggesting that the applicant, a former official, is in a situation where paying the usual charge would cause him financial difficulties.
56. As regards the nature of the documents, it was clear that many of these were not available in electronic format; there was nothing more to explain. This was preliminary information that was being provided before the process of collecting the further documents could begin. In such circumstances, the number of pages was unknown in advance of that process.
57. In his observations, the complainant rejected the Commission's position. He argued as follows: In his initial application of 10 December 2006, he himself had made the following request: "Please send the documents to me in electronic form. If this involves any costs, please inform and consult me in advance." Initially, however, the Commission did not mention the charging of fees at all. It is not consistent with Regulation 1049/2001 to simply expect that an applicant will pay fees of which he/she is initially not informed. Furthermore, the charge must be based on an understandable invoice and not simply with reference to a recommendation made by the Commission's Secretariat-General. Finally, the fees cannot cover staff costs, in particular those which are incurred because of an institution's bad record keeping. The fees should only cover postage and copying.
The Ombudsman's assessment
58. Article 10 of Regulation 1049/2001 provides as follows:
"Access following an application
1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant's preference. The cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending the copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge.
[...]"
Article 7 of the Commission's Decision 2001/937, laying down implementing rules for Regulation 1049/2001, provides as follows:
"Exercise of the right of access
[...]
If the volume of the documents requested exceeds twenty pages, the applicant may be charged a fee of EUR 0,10 per page plus carriage costs. The charges for other media shall be decided case by case but shall not exceed a reasonable amount."
59. It is clear from the above provisions that charges are not imposed automatically, but instead on a case-by-case basis, through an administrative decision taken at the Commission's discretion. The decision is furthermore one that adversely affects the interests of the applicant(s) concerned.
60. It follows that the imposition of charges must, as a minimum, respect the relevant standards applicable to the reasoning of administrative decisions. It must clearly state the facts and the legal basis of the decision, provide sufficient information to enable the complainant to exercise his/her rights, and enable the reviewing bodies to carry out a meaningful review of the decision. Specifically in the present context, these standards imply that an applicant must be given a reasonable amount of information that will allow him/her to form a view on whether the following part of Article 10 of Regulation 1049/2001 has been respected: "This charge shall not exceed the real cost of producing and sending the copies."
61. Before looking at the complainant's concrete grievances, the Ombudsman points out that the Commission does not appear to have been attentive to the nature of its message to the complainant mentioned in paragraph 59 above. Its relevant communications of 1 and 23 March 2007 simply informed the complainant that it "retained the right" to charge fees. It was only in its final communication on this issue, dated 30 March 2007, that it more concretely informed the complainant of its categorical refusal to send him the documents unless he agreed to pay the fees.
62. It appears, however, that the complainant himself - a former Commission official with a legal education - was fully aware that the Commission had actually taken, in a formal sense, a decision to charge fees. Leaving aside the presentation of the Commission's decision to the complainant, the Ombudsman will examine below the aforementioned communications to the complainant in light of the relevant standards referred to above.
63. The complaint contained two specific grievances regarding the Commission's application of the above provisions to the present case. The first concerned the Commission's alleged failure to specify which specific documents were to be the object of a charge. This essentially concerns the object of the Commission's decision. The second concerned information on the actual charging of fees.
64. The Commission's communications of 1 and 23 March 2007 referred to documents in 'paper format'. In the latter communication, the Commission referred to the approximate number of paper copies, on the basis of which it calculated the fee that it intended to charge. The Commission argued in its opinion that this was sufficiently specific.
65. The Ombudsman regrets that the Commission's first communication did not provide an estimate of the number of pages involved. The charging of fees depends on a quantitative calculation. In the present case, the complainant was initially informed that his access application concerned 1200 documents (not only pages); he could therefore reasonably have presumed that the costs could be potentially quite considerable. However, in its communication of 23 March 2007, and in response to the complainant's preceding request for clarification, the information concerning the number of paper copies was provided, Furthermore, this was to be reasonably understood as referring to paper formats of the documents that formed the subject matter of the fair solution agreed on 22 February 2007. Thus, taken together, the Ombudsman considers that the above-mentioned communications, when taken together, provided sufficient specificity regarding the Commission's decision to charge fees.
66. With regard to the second grievance in this part of the case, the Commission's first communication of 1 March 2007 referred (only) to the "handling costs" ("Bearbeitungskosten") of the said documents. In response to subsequent requests for clarification, in which the complainant expressly asked to be given the opportunity to "examine the costs", the Commission informed him, on 23 March 2007, that "handling costs" and postage would be charged. With specific regard to the handling costs, it stated that "[t]he Secretariat-General foresees a fee of EUR 0,10 per page." The letter concluded by stating that, with 5 pages per document, of which there were more than 200, "we would have to charge you EUR 100 for the sending of the remaining requested documents". In an e-mail dated 24 March 2007, the complainant made more detailed queries about the fees. He referred to the above-cited legal rule in Article 10(1) of Regulation 1049/2001 that the "charge shall not exceed the real cost of producing and sending the copies" and drew the Commission's attention to the fact that he pays only EUR 0,05 for hard copies at his local copy-shop in Germany. He asked how the higher amount calculated by the Commission had come about. In its reply of 30 March 2007, the Commission expressly referred to the possibility of charging fees under Article 10(1) of Regulation 1049/2001 and stated that "the rate of fee that we have mentioned corresponds to the recommendations of the Commission's Secretariat-General".
67. For the reasons stated below, the Ombudsman cannot find that the Commission adequately informed the complainant about the charging of the fees.
68. First, the Commission's communications of 1 and 23 March 2007 did not refer to any legal basis for its decision. Second, when in its communication of 30 March 2007, the Commission finally referred to a legal basis, it would appear that it did so only in response to the complainant's own express reference to Article 10(1) of Regulation 1049/2001. The response was furthermore incomplete because it did not mention the Commission's above-mentioned Decision 2001/937, in which Article 7 lays down additional rules for the charging of fees, including the rate of EUR 0,10 per page. Third, the Commission refrained from informing the complainant about the basis underpinning the per page fee calculation and gave no explanation for this omission. As a result, the complainant was therefore not able reasonably to form an impression as to whether Article 10(1) of Regulation 1049/2001 ("This charge shall not exceed the real cost of producing and sending the copies") had been respected. Finally, the information given to the complainant was contradictory. As noted above, the Commission's letter of 23 March 2007 stated that the "handling costs" and postage would be charged and gave a final total amount "for the sending", which corresponded to EUR 0,10 per page. However, in its letter of 30 March 2007, the Commission stated that it would only send the complainant the documents if he declared himself willing to pay the EUR 0,10 per page "and the postage costs". This was in contradiction with its previous letter, which clearly suggested that the EUR 0,10 per page included the postage costs.
69. In light of the above, the Ombudsman concludes that there was maladministration on the part of the Commission corresponding to the complainant's eighth allegation. Furthermore, the Ombudsman cannot conclude that the Commission has in any way corrected this instance of maladministration in the course of the present inquiry. The Commission has merely referred to an "established practice" which is to "compensate, at least in part, the administrative costs in which the Commission incurs for dealing with requests concerning very large documents or a substantial volume of documents." Again, this does not enable either an applicant or the reviewing bodies to adequately examine whether the fees exceed the real cost of producing and sending the copies. Specifically, the costs actually covered - or intended to be covered - by the stated fee are not accounted for anywhere.
70. On the basis of his above findings, the Ombudsman makes a critical remark below.
D. Allegations regarding the Commission's use of "unsachlich"
Arguments presented to the Ombudsman
71. The complainant considered that the Commission offended him when, in its communication of 30 March 2007, it informed the complainant that it would not respond to most of the points raised in his letter of 24 March 2007 because their character was "unsachlich".
72. In its opinion, the Commission stated that "unsachlich" means 'beside the point'. It went on to argue that to say that someone's arguments were beside the point was not in the least offensive and was fully within the bounds of polite discourse, assuming that the Commission may also freely express its views.
73. In his observations, the complainant essentially maintained his allegation.
74. The Ombudsman notes that this allegation contains two issues, which should be examined separately and in the following order. First, it must be examined whether the adjective "unsachlich" in German is offensive when used to describe a certain communication. Second, it must be examined whether the content of the communication concerned was indeed "unsachlich".
75. With regard to the first issue, it is useful to draw on relevant codes of good administrative behaviour applicable to the EU administration.
76. The European Code of Good Administrative Behaviour[5] provides in Article 14(3) that "[n]o acknowledgement of receipt and no reply need be sent in cases where letters or complaints are abusive because of their excessive number or because of their repetitive or pointless character." Part 4 of the European Commission's Code of Good Administrative Behaviour[6] provides that the rules on handling correspondence "do not apply to correspondence which can reasonably be regarded as improper, for example, because it is repetitive, abusive and/or pointless. Then the Commission reserves the right to discontinue any such exchanges of correspondence." The German translation of the word 'pointless' are, for the above-mentioned codes, "...sinnlosen Charakters..." and "... ohne erkennbaren Sinn und Zweck..."
77. The term 'pointless' - and its possible equivalents in German - are not less strong, objective or neutral than "unsachlich". Thus, provided the description is accurate, it cannot be considered offensive, in itself, to inform an individual that he/she will receive no reply because his/her correspondence - or the issues raised therein - are 'pointless'.
78. With regard to the second part of the present examination, the Ombudsman notes the following:
- the complainant asked for an apology for the fact that the Commission replied late to his request for information on how to open the data contained on the CD-ROM that it had sent to him;
- the complainant explained, in detailed and technical terms, why the CD-ROM did not, in his view, contain the documents subsumed to the fair solution agreed between himself and the Commission on 22 February 2007; he asked for a correction of this;
- the complainant explained in technical terms that the presentation of the documents on the CD-ROM was, in his view, poor, and asked for a correction of this;
- the complainant repeated his request for more detailed information on the fees that the Commission intended to charge him for the provision of the documents in paper format;
- the complainant asked whether the documents concerned were listed in a register, referring to Article 12 of Regulation 1049/2001[7]. He specifically asked for a print-out from a/the register containing all the documents concerned; and
- finally, in order to avoid the postage costs, the complainant asked for the documents in paper format to be made available to him in Luxembourg where he could collect them on the spot. In formulating this request, he referred to Article 10 of Regulation 1049/2001[8].
79. In its reply of 30 March 2008, the Commission only made the previously examined attempt to respond to the complainant's request for additional information on the fees that he would be charged for the provision of the documents in paper format. It refrained entirely from responding to the other points in the complainant's letter, describing these as "unsachlich".
80. The Ombudsman cannot agree with the Commission's classification of the complainant's above-mentioned points as "unsachlich". On the contrary, they mainly concerned specific and technical points relating to a fair solution for the provision of documents under Regulation 1049/2001. In fact, several of the above points have given rise to findings of maladministration in the present decision.
81. It presumably cannot be excluded that the Commission decided to cut-off communication with the complainant at that point because of the tone of the complainant's e-mail. The language of the e-mail was demanding (he requested an "immediate" apology), and to some extent insinuated, in cynical language, that the Commission's previous responses may have been inadequate because of the Commission's intention to harass him. However, even if the Commission considered such language and statements to be offensive - which is different from being 'beside the point' - the Commission has not put forward any arguments to that effect in the present case.
82. In light of the above findings, the Ombudsman concludes that the allegation here concerned has been substantiated. However, in light of the connection with the actions that already give rise to the critical remarks stated below, the Ombudsman does not consider it necessary to issue a corresponding separate critical remark on this issue.
E. The complainant's claims
The claims and the Commission's response
83. The complainant made the following claims for: (a) 'a formal apology' and (b) "recompense, which, following the long procedure, could not constitute the provision of the documents requested".
84. The Commission apologised concerning the initial delay in registering the complainant's access application. The apology was rejected by the complainant, who stated that he could not derive any satisfaction from it. With regard to the remainder of the case, the Commission has not offered any apologies or 'recompense'.
The Ombudsman's assessment
85. The Ombudsman does not consider it appropriate to try to pursue the above-mentioned claims in this case. First, from the overall context of the multiple disputes between the complainant and the Commission, it appears most unlikely that further action by the Ombudsman could bring forth an apology which the complainant would consider genuine and satisfactory. Second, it is not obvious to the Ombudsman what 'recompense' the Commission could reasonably and meaningfully be asked to make in this case. The Ombudsman furthermore refers to the reasons for closing the present inquiry, at this stage, without attempting to arrive at a friendly solution or producing a draft recommendation. These reasons are stated below under 'Conclusions'.
F. Conclusions
On the basis of his inquiries into this complaint, the Ombudsman makes the following critical remarks:
1. In light of his examination in point A. above, the Ombudsman finds that there was a serious delay on the part of the Commission in registering the complainant's initial public access application in this case. This was an instance of maladministration.
2. In light of his examination in point C. above, the Ombudsman finds that the Commission wrongly failed to explain in more detail to the complainant its decision to charge fees for the provision of documents. This was an instance of maladministration.
The Ombudsman has decided to close the present inquiry at this stage, rather than to pursue a friendly solution or a draft recommendation, for the following reasons. First, it does not appear that there is any trust and confidence left between the complainant and the Commission. Seeking of a friendly solution - which should normally involve a reasonable prospect of reaching compromise solutions if relevant and appropriate - would therefore be neither realistic nor meaningful in the present case. Second, a draft recommendation should normally benefit from a high degree of specificity; such specificity is likely to be better attained if the parties to the case attempt to implement the Ombudsman's suggestion referred to below. Finally, the instances of maladministration identified by the Ombudsman in the present case were committed at the level of a Directorate-General with which the complainant has had a number of serious disputes in recent years. The Ombudsman's suggestion below should ideally be dealt with by the Commission's Secretariat-General, which may help to bring forth a more neutral and objective response.
As pointed out in paragraph 51 above, it appears obvious that the complainant made his access application for specific purposes rather than simply to gain an academic insight into the work of the 'Collège des chefs d'administration'. The proposal put forward by the Ombudsman in the said paragraph with an eye to better identifying the relevant documents and issues of interest to the complainant and to contribute to a better mutual understanding of the object of the application, is meant to ensure that the complainant is in possession of all the agendas and minutes of the 'Collège des chefs d'administration' meetings. As explained, those agendas generally contain references to other, more specific documents, or to the fact that certain issues were discussed for which supporting documents presumably exist. The complainant is encouraged to explore this approach directly with the Commission's Secretariat-General.
The complainant and the European Commission will be informed of this decision.
P. Nikiforos DIAMANDOUROS
Done in Strasbourg on 19 February 2009
[1] OJ 2001 L 145, p. 43
[2] This provision provides as follows: "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."
[3] A quick search on the internet, at the time of drafting the present decision, showed that the question of how to open such .mdi files is fairly frequently posed in internet fora or similar online sites.
[4] Commission Decision of 5 December 2001 amending its rules of procedure (notified under document number C(2001) 3714), Official Journal 2001, L 345, p. 94.
[5] The Code is available under the following link: http://www.ombudsman.europa.eu/resources/code.faces
[6] Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public, annex to Commission Decision of 17 October 2000 amending its Rules of Procedure, Decision 2000/633, OJ 2000 L 267, p. 64.
[7] "Article 12
Direct access in electronic form or through a register
1. The institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned.
2. In particular, legislative documents, that is to say, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, should, subject to Articles 4 and 9, be made directly accessible.
3. Where possible, other documents, notably documents relating to the development of policy or strategy, should be made directly accessible.
4. Where direct access is not given through the register, the register shall as far as possible indicate where the document is located."
[8] "Article 10
Access following an application
1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant's preference. The cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending the copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge.
2. If a document has already been released by the institution concerned and is easily accessible to the applicant, the institution may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document.
3. Documents shall be supplied in an existing version and format (including electronically or in an alternative format such as Braille, large print or tape) with full regard to the applicant's preference."
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