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Contents

The Complaint The Inquiry The Decision

Strasbourg, 23 May 2005 
 

Dear Mr T.,

On 16 December 2003, you made a complaint to me against the European Commission concerning infringement proceedings against Spain and Portugal under Article 226 of the EC Treaty and a request for access to documents related to these procedures.

On 23 January 2004, I forwarded the complaint to the President of the European Commission. On 29 January 2004, you sent me an additional letter concerning your case. On 6 April 2004, I replied to your letter.

The European Commission sent its opinion on 3 May 2004. On 3 June 2004, I forwarded it to you with an invitation to make observations, which you sent on 30 July 2004.

On 23 November 2004, the Court of First Instance rendered its judgment in Case T-84/03 (Turco v Council).

On 12 January 2005, you sent me further documents related to your complaint.

On 17 January 2005, I forwarded a copy of this judgment to you, inviting you to make observations on its possible importance for the present complaint.

On 9 February 2005, you sent me your observations. On 4 April 2005, you sent me further documents in relation with your complaint.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

On 16 December 2002, the complainant who was a MEP at the time of the complaint, submitted a written question to the Commission concerning the alleged infringement by Spain of Directive 91/680/CEE on tax harmonisation. The complainant also referred to the situation in Portugal, in relation to the VAT exemptions granted to the Catholic Church by this state and by Spain.

On 24 January 2003, the Commission replied that the case had been examined under Article 226 of the EC Treaty and that the two infringement proceedings against Spain and Portugal had been closed.

In a letter to the Commission dated 29 January 2003, the complainant alleged that the Commission had been wrong to close the infringement proceedings against Spain and Portugal and to consider that the situation of these two Member States had been identical. He further requested access to the documents related to the infringement proceedings.

In its reply of 24 March 2003, the Commission argued that the situation of Spain and Portugal had been identical. It further informed the complainant that access to documents related to the infringement proceedings was possible in principle, and that he had to specify the documents requested. On the same day, the complainant wrote to the Commission, requesting access to the documents related to the infringement proceedings against Spain and Portugal.

On 15 April 2003, the Commission replied that the request of access to documents was not precise enough and suggested three categories of documents which could be the object of a request for access by the complainant. On 15 April 2003, the latter followed the Commission's proposal and requested the relevant documents. On 22 May 2003, the Commission gave access to some of the documents to the complainant. Concerning one of the documents, namely an opinion of its Legal Service, the Commission informed the complainant, in a letter dated 23 May 2003, that access to this document was denied on the basis of Article 4 (2) of Regulation 1049/2001 on public access to documents. Concerning the communications sent to the Commission by the two Member States, the Commission informed the complainant that access could not be granted since the Spanish and Portuguese authorities had requested that these documents should not be disclosed.

In two letters dated 10 June and 25 June 2003 to the Secretariat General of the Commission, the complainant confirmed his request for access to documents, namely to the opinion of the Commission's Legal Service and the communications of the two Member States.

In his complaint to the European Ombudsman, the complainant alleged that the Commission had failed properly to apply rules governing the infringement proceedings against Spain and Portugal under Article 226 of the EC Treaty and that improper application of the rules in question could lead to an inequality of treatment. As a result, the Commission had failed to fulfil its function of "Guardian of the Treaties". The complainant further alleged that the Commission had wrongly refused access to the documents related to the infringement proceedings against Spain and Portugal and subsequently had failed to comply with the procedural rules set out in Regulation 1049/2001 on public access to documents.

The complainant claimed that the infringement proceedings against Spain (no 91/2239) and Portugal (no 91/2241) should be reopened.

THE INQUIRY

The Ombudsman's approach

In a letter dated 23 January 2004, the Ombudsman informed the complainant that, given that his complaint for infringement of Community law was still pending before the Commission, the allegation pursuant to which the Commission had failed properly to apply rules governing the infringement proceedings against Spain and Portugal under Article 226 of the EC Treaty, was inadmissible on the basis of Article 2(4) of the Ombudsman's Statute.

On the same day, the Ombudsman asked the European Commission to give an opinion on the complainant's allegation pursuant to which the Commission had wrongly refused to give access to the documents related to the infringement proceedings against Spain and Portugal and had failed to comply with the procedural rules set out in Regulation 1049/2001 on public access to documents.

In a letter dated 29 January 2004, the complainant asked the Ombudsman to review his decision to close part of the complaint on the basis of Article 2(4) of the Statute. He argued that his complaint for infringement of Community law pending before the Commission did not concern the allegation made in his complaint to the Ombudsman. The complainant put forward that his complaint to the Commission aimed to ask it to reconsider its decision to close the infringement proceedings against the two Member States, whereas the allegation raised in his complaint to the Ombudsman dealt with what he considered to be the incorrect application of Article 226 of the EC Treaty concerning the infringement proceedings against Spain and Portugal.

In a letter dated 6 April 2004, the Ombudsman upheld his decision dated 23 January 2004 pursuant to which his enquiry would only deal with the complainant's second allegation concerning access to documents, given that he considered that a complaint containing the same allegation as the one submitted to him was pending before the Commission.

The Commission's opinion

The opinion of the European Commission on the complaint was in summary as follows:

The complainant had requested access to documents related to infringement proceedings against Spain and Portugal concerning VAT exemptions on the delivery of goods and services to the Catholic Church. These two infringement proceedings had been closed. The Commission had given access to the documents requested by the complainant, except the following ones:

Concerning the documents described in points i) and ii), i.e. the five letters sent by the Spanish and Portuguese authorities, access had been refused by virtue of Article 4 (5) of Regulation 1049/2001, given that these two Member States had requested that these documents not be disclosed. The complainant wrongly stated that the Commission had no obligation to consult the Spanish and Portuguese authorities. Pursuant to Article 4(5) of Regulation 1049/2001, the power of a Member State to request the institution not to disclose documents originating from this State without its prior agreement constitutes one of the exceptions to access to documents foreseen in Article 4 of Regulation 1049/2001. The Court of First Instance had clearly defined the implications of the implementation of these provisions in its judgment of 17 September 2003 in case T-76/02 Messina v Commission(1) to which the Ombudsman had referred in his decision on complaint 1753/2002/GG(2).

Concerning the opinion of the Commission's Legal Service, access had been refused on the basis of Article 4 (2) second indent of Regulation 1049/2001. In the complainant's view, the exception laid out in Article 4 (2) second indent of Regulation 1049/2001 did not apply to the opinion of the Legal Service. The complainant referred to the Ombudsman's Special Report in case 1542/2000/(PB)SM(3) in which the latter took the view that a distinction had to be made between different kinds of legal opinions. However, Article 4 (2) indent 2 of Regulation 1049/2001 did not make any distinction between the different kinds of legal opinions. Such a distinction was artificial given that there was no fundamental difference between legal opinions drawn up in the context of a legislative act and those drawn up in the context of court proceedings. In both cases, the issue at hand was the task of the Commission's Legal Service in giving legal advice.

It had to be pointed out that the exception foreseen in Article 4 (2) second indent of Regulation 1049/2001 was based on the case-law of the Community courts pursuant to which particular protection had to be granted to Legal Service opinions in an order in case T-610/97 R Carlsen a.o. v. Council(4), in the judgement in case T-44/97, Ghignone a.o. v. Council(5) and in an order in case C-445/00 Austria v. Council(6).

The refusal of access to the opinion of the Commission's Legal Service aimed to protect the independence of the Legal Service when providing legal advice to the institution.

In the present case, the complainant invoked the political sensitivity of the issue in order to sustain that there existed an overriding public interest justifying the disclosure of the opinion of the Commission's Legal Service. The complainant's argument showed, however, that the disclosure of that document could have been harmful. In bringing an internal and preparatory debate out in the open, the Commission would have enabled the legality of the latter to be questioned.

The complainant finally invoked the presumption of accessibility and referred to the position of the Commission as regards access to documents related to infringement proceedings. In the complainant's view, point 6 of Commission document SEC/2003/260/3(7) pursuant to which "any exception provided for by the Regulation can apply only for the period during which protection is justified on the basis of the content of the document" applied to the documents requested. In the Commission's view, this was one of the basic principles of Regulation 1049/2001 foreseen in Article 4 (7). In the present case, the protection of the documents was still justified, for the reasons mentioned above. Point 33 of Commission document SEC/2003/260/3 foresaw in fact a presumption of accessibility of the documents after the file related to infringement proceedings had been closed. However, such a presumption concerned the application of exception aiming the protection of the purpose of investigations foreseen in Article 4(2) third indent of Regulation 1049/2001. The presumption of accessibility did not exclude the eventual applicability of other grounds for exception.

The complainant's observations

The European Ombudsman forwarded the opinion of the European Commission to the complainant with an invitation to make observations. In his reply dated 30 July 2004, the complainant maintained his complaint and made in summary the following further comments:

Concerning the request to have access to the letters sent by the Member States to the Commission, the issue of the power of a Member State to request the institution not to disclose a document in accordance with Article 4(5) of Regulation 1049/2001 was not questioned. In the complainant's view, the presumption of accessibility of the documents related to infringement proceedings after the corresponding file had been closed should have been considered to be an exception to the power of a Member State mentioned above, in accordance with point 33 of Commission document SEC/2003/260/3. Given that the infringement proceedings had been closed a long time ago (ten years), the presumption of accessibility could have applied since "any exception provided for by Regulation 1049/2001 can apply only for the period during which protection is justified on the basis of the content of the document". The Commission had failed properly to apply Article 4(5) of Regulation 1049/2001 and should not have asked the two Member States to pronounce on the accessibility of the documents to which the complainant had requested access. The Commission wrongly referred to the judgment of the Court of First Instance in case T-76/02 Messina v Commission in which the plaintiff's allegation had been different to the one raised in the present complaint. In the Messina case, the plaintiff had questioned the power of the Member State to refuse the disclosure of the documents to which she had requested access.

Concerning the request for access to the opinion of the Commission's Legal Service, the presumption of accessibility to the documents was not questioned by the Commission. The Commission had failed to take into account the principle pursuant to which exceptions to access to documents should be interpreted restrictively.

Given that the infringement proceedings had been closed more than ten years ago, the Commission's argument related to the protection of the independence of its Legal Service when providing legal advice to the institution was not relevant. Neither was the Commission's argument related to the protection of an overriding public interest relevant.

The judgement of 23 November 2004

On 23 November 2004, the Court of First Instance rendered its judgment in Case T-84/03 (Turco v Council). In this judgment, the Court arrived at the conclusion that the Council was entitled to refuse access to legal opinions drawn up by its Legal Service (cf. in particular paragraph 62 and 74 of the judgment).

The complainant's observations

On 17 January 2005, the Ombudsman forwarded a copy of this judgment to the complainant, inviting him to make observations on its possible importance for the present complaint. In his observations dated 9 February 2005, the complainant pointed out that, in his view, no general consequences on the access to documents followed from the judgement rendered by the Court of First Instance in Case T-84/03. He further informed the Ombudsman that he intended to lodge an appeal against the judgement of the Court of First Instance.

THE DECISION

1 The scope of the Ombudsman inquiry

1.1 In his complaint to the European Ombudsman, the complainant alleged that the Commission had failed properly to apply rules governing the infringement proceedings against Spain and Portugal under Article 226 of the EC Treaty and that improper application of the rules in question could lead to an inequality of treatment. As a result, the Commission had failed to fulfil its function of "Guardian of the Treaties". The complainant further alleged that the Commission had wrongly refused access to the documents related to the infringement proceedings against Spain and Portugal and had failed to comply with the procedural rules set out in Regulation 1049/2001 on public access to documents. The complainant claimed that the infringement proceedings against Spain (no 91/2239) and Portugal (no 91/2241) should be reopened.

1.2 In a letter dated 23 January 2004, the Ombudsman informed the complainant that, given that a complaint for infringement of Community law was still pending before the Commission, the allegation pursuant to which the Commission had failed properly to apply rules governing the infringement proceedings against Spain and Portugal under Article 226 of the EC Treaty was inadmissible on the basis of Article 2(4) of the Ombudsman's Statute.

1.3 In a letter dated 29 January 2004, the complainant asked the Ombudsman to review his decision to close part of the complaint on the basis of Article 2(4) of the Statute. He argued that his complaint for infringement of Community law pending before the Commission did not concern the allegation made in his complaint to the Ombudsman. The complainant put forward that his complaint to the Commission aimed to ask it to reconsider its decision to close the infringement proceedings against the two Member States, whereas the allegation raised in his complaint to the Ombudsman dealt with what he considered to be the incorrect application of Article 226 of the EC Treaty concerning the infringement proceedings against Spain and Portugal. In his reply dated 6 April 2004, the Ombudsman upheld his decision dated 23 January 2004 pursuant to which his enquiry would only deal with the complainant's second allegation concerning access to documents, given that he considered that a complaint containing the same allegation as the one submitted to him was pending before the Commission. The present decision therefore only deals with the complainant's second allegation concerning access to documents related to the infringement proceedings against Spain and Portugal under Article 226 of the EC Treaty.

2 The allegedly unlawful refusal to grant access to documents

2.1 The complainant alleged that the Commission had wrongly refused access to certain documents related to the infringement proceedings against Spain and Portugal and had failed to comply with the procedural rules set out in Regulation 1049/2001 on public access to documents.

2.2 The Ombudsman notes that the documents related to the infringement proceedings against Spain and Portugal to which the complainant had been denied access consist of, on the one hand, five letters sent by the Spanish and Portuguese authorities to the Commission and, on the other hand, an opinion of the Commission's Legal Service related to the exemption and the non-liability for VAT on some deliveries of goods to the Catholic Church in Spain and Portugal (hereinafter "the opinion of the Commission's Legal Service"). The Ombudsman will therefore examine successively the request for access to the letters sent by the Spanish and Portuguese authorities to the European Commission (a) and the request for access to the opinion of the Commission's Legal Service (b).

2.3 The Commission stated that access to the five letters sent by the Spanish and Portuguese authorities had been refused by virtue of Article 4 (5) of Regulation 1049/2001, given that these two Member States had requested these documents not be disclosed.

2.4 In his observations, the complainant argued that the issue of the power of a Member State to request the institution not to disclose a document in accordance with Article 4(5) of Regulation 1049/2001 was not questioned. In his view, the presumption of accessibility of the documents related to infringement proceedings after the case had been closed should have been considered to be an exception to the power of a Member State mentioned above, in accordance with point 33 of Commission document SEC/2003/260/3. Given that the infringement proceedings had been closed a long time ago (ten years), the presumption of accessibility could have been applied, since "any exception provided for by Regulation 1049/2001 can apply only for the period during which protection is justified on the basis of the content of the document". The Commission had failed properly to apply Article 4(5) of Regulation 1049/2001 and should not have asked the two Member States to pronounce on the accessibility of the documents to which the complainant had requested access. The Commission wrongly referred to the judgment of the Court of First Instance in case T-76/02 Messina v Commission in which the plaintiff's allegation had been different to the one raised in the present complaint.

2.5 The Ombudsman notes that Article 4(5) of Regulation 1049/2001 provides that "a Member State may request the institution not to disclose a document originating from that Member State without its prior agreement". He further notes that in the present case, the documents to which the complainant had requested access consisted of letters sent to the Commission by two Member States, namely Spain and Portugal. The Ombudsman further notes that the issue at hand in case T-76/02 Messina v Commission appears to be the same as the one raised in the present case, namely the extent of the power of a Member State to request the institution not to disclose a document. In this judgement, the Court of First Instance held that it followed from Article 4 (5) of Regulation 1049/2001 “that, among third parties, the Member States are subject to special treatment. That provision confers on the Member State the power to request the institution not to disclose documents originating from that State without its prior agreement.(8)” The Court also pointed out “that the power conferred on Member States to request the non-disclosure of their documents to third parties without their prior agreement is one of the exceptions to the right of access to documents of the institutions which are laid down in Article 4 of Regulation No 1049/2001.(9)” In these circumstances, the Ombudsman does not consider the presumption of accessibility referred to in Commission document SEC/2003/260/3 to be relevant in the present case.

2.6 The Ombudsman therefore considers that the complainant has not established his view that the Commission was wrong to refuse access to the letters sent by the Spanish and Portuguese authorities.

2.7 The Commission stated that access to the opinion of its Legal Service had been refused on the basis of Article 4 (2) second indent of Regulation 1049/2001(10).

2.8 In his observations, the complainant argued that the presumption of accessibility of the documents had not been questioned by the Commission. The Commission had failed to take into account the principle pursuant to which exceptions to access to documents should be interpreted strictly. Given that the infringement proceedings had been closed more than ten years prior to the submission of the complaint, the Commission's argument related to the protection of the independence of its Legal Service when providing legal advice to the institution was not relevant. The Commission had failed to consider the distinction between different kinds of legal opinions, as set out in the Ombudsman's Special Report in case 1542/2000(PB) SM.

2.9 On 23 November 2004, the Court of First Instance rendered its judgment in Case T-84/03 (Turco v Council). In this judgment, the Court arrived at the conclusion that the Council was entitled to refuse access to legal opinions drawn up by its Legal Service (cf. in particular paragraph 62 and 74 of the judgment). On 17 January 2005, the Ombudsman forwarded a copy of this judgment to the complainant, inviting him to make observations on its possible importance for the present complaint. In his observations dated 9 February 2005, the complainant pointed out that, in his view, no general consequences on the access to documents followed from the judgement rendered by the Court of First Instance in Case T- 84/03. He further informed the Ombudsman that he intended to lodge an appeal against the judgement of the Court of First Instance.

2.10 The Ombudsman considers that Regulation 1049/2001 has the aim of ensuring the “widest possible access to documents”. Article 4(2)(11), second indent of Regulation No 1049/2001 is thus an exception that needs to be interpreted narrowly, taking into account the principle of proportionality. The Ombudsman notes that in the Turco case, the Court held that, as regards "court proceedings" within the meaning of Decision 94/90, "that term covers not only the pleadings or other documents lodged and internal documents concerning the investigation of the case before the Court but also correspondence concerning the case between the directorate-general concerned and the legal service or a lawyer's practice (Interporc v. Commission, paragraph 41)".(12)

In the present case, the Ombudsman notes that the document to which the complainant had requested access is an opinion of the Commission's Legal Service related to the exemption and the non-liability for VAT on some deliveries of goods to the Catholic Church in Spain and Portugal. The Ombudsman considers that, on the basis of the judgment of the Court of First Instance mentioned above, the document to which the complainant has requested access would therefore appear to be covered by the exception set out in Article 4 (2), second indent of Regulation No 1049/2001.

It should be recalled, however, that the Court of Justice of the European Communities is the highest authority regarding the interpretation of Community law.

2.11 As already held in previous decisions in complaints dealing with the same issue(13), the Ombudsman considers that it follows from the structure and the wording of the provision concerned that the presence of an "overriding public interest" normally has to be established by the person seeking access. In the present case, the complainant argued that the infringement proceedings were closed "more than ten years ago". However, the fact that the relevant document was drawn up more than ten years prior to the submission of a complaint does not in itself prove that there is an overriding public interest in disclosure. The Ombudsman considers, therefore, that the complainant has not established that his interest is such as to override the general interest in maintaining the confidentiality of legal opinions upon which Article 4 (2) appears to be based.

2.12 In the light of the above, there appears to be no maladministration.

3 Conclusion

On the basis of the Ombudsman's inquiries into the present complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely, 

P. Nikiforos DIAMANDOUROS

(1) Judgment of the Court of First Instance of 17 September 2003 in Case T-76/02 Mara Messina v Commission of the European Communities- [2003] ECR II-3203.

(2) Decision available on the European Ombudsman website at the following address: http://www.ombudsman.europa.eu/decision/en/021753.htm

(3) Special Report submitted by the European Ombudsman to the European Parliament on 12 December 2002 following a draft recommendation to the Council of the EU in complaint 1542/2000/(PB)/SM.

(4) [1998] ECR II-485.

(5) [2000] ECR SC I-A-223; II-1023.

(6) [2002] ECR I-9151.

(7) Internal working document of the European Commission entitled "Orientations de la Commission en matière d'accès à des documents relatifs à des procédures d'infraction" ref. SEC/2003/260/3.

(8) Loc. cit., paragraph 40.

(9) Loc. cit., paragraph 55.

(10) Pursuant to Article 4(2) of Regulation 1049/2001, "the institutions shall refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice unless there is an overriding public interest in disclosure".

(11) Pursuant to Article 4(2) of Regulation 1049/2001, "the institutions shall refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice unless there is an overriding public interest in disclosure".

(12) See paragraph 63 of the judgment of the Court of First Instance of 23 November 2004 in Case T-84/03 Turco v. Council.

(13) See decision of the European Ombudsman 412/2003/GG (http://www.ombudsman.europa.eu/decision/en/030412.htm).