ANNUAL REPORT 1998

(1999/C 300/01)

Strasbourg, February 1999

Mr JOSÉ MARÍA GIL-ROBLES GIL-DELGADO

President European Parliament

Rue Wiertz B - 1047 Bruxelles

Mr President,

In accordance with Article 138e(1) of the Treaty establishing the European Community and Article 3(8) of the Decision of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, I hereby present my report for the year 1998.

Jacob SÖDERMAN

Ombudsman of the European Union

CONTENTS

>TABLE>

1. FOREWORD

Establishing the office of European Ombudsman was one of the most important achievements of the Maastricht Treaty in relation to the citizenship of the Union. The possibility to apply to the Ombudsman is one of the rights of European citizenship, guaranteed by Community law. In my first Annual Report (1995), I announced that I would propose possible reforms and changes in the mandate, powers or procedures of the European Ombudsman's office in the Annual Report for 1998, in the light of the experience gained since the office began work in September 1995. A large part of this foreword is therefore dedicated to fulfilment of that undertaking. The purpose is to ponder what is still needed to establish fully the Ombudsman's office, so that it may serve the European citizens as effectively as possible.

Firstly, I would like to inform readers that the structure of this Annual Report is the same as that for the two previous full years of activity, 1996 and 1997. A significant change has been made, however, in the selection of cases for presentation in the Report. The previous Annual Reports included all cases closed after an inquiry. In the early years of the office, this was useful in order to give a complete picture of the Ombudsman's work. The growing number of cases means that to include them all is no longer defensible from the point of view of the citizens' needs, as many cases are in fact repetitions of earlier ones and not really of significant public interest. In this report, therefore, I adopt the normal practice of national ombudsman offices by including only a selection of cases, so as to keep the length of the report within reasonable limits and ensure that it remains clear and readable.

All cases which raise significant issues of principle are of course included, as well as those raising new issues about the competence or procedures of the Ombudsman, and those which contain findings of general interest. For those who wish to study all cases closed after an inquiry, the website has provided this information in a fresh and comprehensive form since July 1998 by publishing all decisions in English and in the language of the complainant. A paper copy of any decision may also be obtained from the Ombudsman's office.

RESULTS

When the 1997 Annual Report was dealt with by the European Parliament, certain critical voices suggested that the Ombudsman had success in only a small percentage of cases. This view was reached on the basis of all received complaints, including those which are outside the mandate. I do not believe that this way of judging the results of an Ombudsman's activities is really fair. There is not much that can be done about a complaint which is outside the mandate, other than to try to advise the complainant or to transfer the complaint to a competent body. We have managed to do this in almost 80 % of such cases.

During 1998, the Ombudsman's office handled a total of 1617 cases. Of these, 1372 were new complaints received in 1998. One own-initiative inquiry was launched during the year, and 185 inquiries were closed with a reasoned decision. In 45 % of these cases, either the institution settled the matter, a friendly solution was found, or the case was closed with a critical remark. In 1997 and 1996, the equivalent figures were 40 % and 35 % respectively. During 1998, in 52 % of cases, no maladministration was found. A finding of no maladministration is not always negative for the citizen. The process of inquiry requires that the institution explain to the complainant what it has done and why. In some cases, it even convinces the complainant that it has acted properly.

It is always necessary for an Ombudsman office to keep close watch over its results from the point of view of the citizen. There is still much to be done in this field, but we should not forget that there has been a continual improvement in the outcome of the cases and the number of cases dealt with. The main aim should be that the time taken to deal with a case be shortened during the next year. The target of one month to decide on admissibility and one year to close a case after an inquiry has not yet been fully reached, but should become a reality during the years to come.

Positive results can often be achieved through own-initiative inquiries conducted by the Ombudsman. The day to day handling of complaints from citizens may bring particular problems or recurring issues to the Ombudsman's attention. In such cases, a positive initiative by the Ombudsman to address the matter in question may be necessary. In November 1998, I launched an inquiry into the existence and the public accessibility, in the different Community institutions and bodies, of a code of good administrative behaviour for officials in their relations with the public.

The idea of such a code has had the consistent support of the European Parliament, where Mr Roy Perry MEP, rapporteur for the report of the Committee on Petitions on its own activities in 1996 to 1997, called for a code of good administrative behaviour to be established for Community institutions and bodies. The Parliament has stressed "the importance for such a code to be, for reasons of public accessibility and understanding, as identical as possible for all European institutions and bodies".

More details of the own-initiative inquiry can be found in Chapter 2 (Section 2.2.2). I hope that it will be possible to announce positive results from this initiative in a future Annual Report.

FREEDOM OF MOVEMENT

In the original Spanish proposal to establish a European Ombudsman office, the idea was that the Ombudsman should supervise the rights of the European citizens under Community law at all levels in the European Union, even at the national, regional or municipal level. The high number of complaints which are outside the mandate, still about 70 % of complaints received, indicates that the European citizens do not understand that the mandate of the European Ombudsman is limited only to the activities of the Community institutions and bodies.

An analysis of complaints outside the mandate but concerning Community law, made by José Martínez Aragón, Principal Legal Advisor in my Secretariat, and presented in Chapter 2 of this Annual Report, shows that many such complaints concern the right to freedom of movement within the Union. Freedom of movement is one of the rights of Union citizenship guaranteed by Article 8a of the Treaty. Would it not be appropriate for the European Ombudsman to be able to assist the European citizens, in order that they benefit from this fundamental right conferred upon them?

To me it seems totally proper to believe in the principle of subsidiarity and to try consistently to promote the idea that national ombudsmen and similar bodies be encouraged and assisted in dealing with complaints from European citizens concerning Community law. This will be even more relevant when the Treaty of Amsterdam enters into force, bringing questions of visa, asylum and foreigners' rights, which are classic complaints issues for ombudsmen and similar bodies at a national level, into the domain of Community law. The right to petition the European Parliament should also be made better known, especially in matters of principle or with more political significance.

As our cooperation with the national and regional bodies has been developing so positively, I am not prepared to propose any change at this point concerning the mandate of the European Ombudsman as laid down in the Treaty, but undertake to increase my efforts in this field.

What really could help the citizen would be that all remedies under Community law be clearly mentioned in the Treaty, in order properly to inform the European citizens of their rights in this respect. In a society governed by the rule of law, the courts constitute the main system through which the rule of law is upheld. At the moment, however, there is no provision which informs the citizen of the vital role played by national courts in ensuring respect for Community law. Furthermore, the right to complain to national ombudsmen and to petition parliaments in cases of conflicts with the administration involving Community law should also be mentioned in the Treaty. Each Member State should have an obligation to ensure that its legal structure includes an effective and appropriate non-judicial body to which citizens may apply for this purpose.

I also wish to underline that the right for a European citizen to complain to the European Commission about a possible breach of Community law of a Member State should be included in the Treaty. This seems to be the only way to guarantee the status of the citizens as a party in this process, and to ensure proper and transparent dealing with their complaints in the future.

THE NEED TO CHANGE THE OMBUDSMAN'S STATUTE

The European Parliament has taken an initiative to change the Financial Regulation in order to establish an independent budget for the European Ombudsman. This initiative is to be welcomed if our office is given the necessary time to adjust, so that the dealing with complaints is not hampered. An independent budget from the year 2001 would be realistic in this respect. This timetable would also give the time necessary to make the required amendment to the Ombudsman's Statute.

Another issue concerning the Statute is of more substantial importance. It concerns the limitations for inquiries set out in Article 3(2), according to which access to a file can be refused on "duly substantiated grounds of secrecy" and officials and other servants of Community institutions and bodies, when testifying at the request of the Ombudsman, "shall speak on behalf of and in accordance with instructions from their administrations and shall continue to be bound by their duty of professional secrecy".

I believe these limitations are unnecessary and inappropriate. The whole idea of an Ombudsman inquiry is that the citizens can expect that all relevant facts and documents are available to the Ombudsman, even when the information cannot be fully released to the public because it is classified. In every case, the citizens should know that the Ombudsman's inquiries are not restricted, and that he can inspect all necessary files and take all needed testimonies.

The limitations laid down on the hearing of witnesses are unacceptable because, if understood literally, they could even oblige a witness to lie (for example to cover up a fraud case) if instructed to do so by superiors in the administration. To make a reliable inquiry possible, witnesses should only be required to speak the truth and release all relevant facts during an inquiry. The reasoning behind the present provision in the Statute is in fact an obstacle to dealing properly with cases of corruption and fraud within the European administration. If the aim is that the Ombudsman's inquiries should contribute to fighting possible corruption and fraud in the administration on the basis of complaints or initiatives, these inappropriate limitations should be removed.

In practice, the Ombudsman has not yet been refused access to a file, although conversations and disputes have arisen due to the abovementioned limitation. The process of taking testimony has not so far been initiated. To avoid doubt, it would be better for the Treaty to make clear that the Ombudsman has full access, for the purposes of his inquiries, to the files and documents held by Community institutions and bodies and that officials must give full and truthful testimony to the Ombudsman. Naturally, the requirement in Article 4(1) of the Statute that the Ombudsman and his staff must not disclose documents or reveal information obtained in the course of inquiries should remain in force.

FRUITFUL COOPERATION

The Rules of the European Parliament concerning the European Ombudsman have recently been renewed and are almost up to date. It seems necessary however to insert a provision concerning how Parliament deals with the Annual Report and with possible special reports of the Ombudsman, in order to ensure that the main responsibilities in this respect be conferred on one responsible committee within the Parliament, which when appropriate could request expert opinions from other committees depending on the substance of the report. There is already a draft report ready about this issue and most likely the matter will be settled before the end of this legislature, which would mean that all the needed procedures will have been established when the new Parliament takes over in the second half of 1999.

There might be discussion about further rules regarding cooperation between the European Parliament, its responsible committee and the Ombudsman, but to me this does not seem necessary. The goodwill so far demonstrated in the cooperation has produced positive results and most likely the constructive and flexible cooperation will continue and produce ever better results. Such a positive attitude and atmosphere can never be successfully replaced by even the most detailed and sophisticated rules.

Finally, I would like to thank all Community institutions and bodies for their cooperative and constructive attitude towards the Ombudsman's office. I would especially like to mention in this regard the European Parliament and its responsible committee, the Committee on Petitions, for their profound efforts and consistent assistance in the establishing of the European Ombudsman's office, in order that it might serve and support the citizens of Europe, and thus enhance the relations between those citizens, the European Union and its administration.

Jacob SÖDERMAN

31 December 1998

2. COMPLAINTS TO THE OMBUDSMAN

The most important task of the European Ombudsman is to deal with maladministration in the activities of Community institutions and bodies, with the exception of the Court of Justice and Court of First Instance acting in their judicial role. Possible instances of maladministration come to the attention of the Ombudsman mainly through complaints made by European citizens. The Ombudsman also has the possibility to conduct inquiries on his own initiative.

Any European citizen, or any non-citizen living in a Member State, can make a complaint to the Ombudsman. Businesses, associations or other bodies with a registered office in the Union may also complain. Complaints may be made to the Ombudsman either directly, or through a Member of the European Parliament.

Complaints to the Ombudsman are dealt with in a public way unless the complainant requests confidentiality. It is important that the Ombudsman should act in as open and transparent a way as possible, both so that European citizens can follow and understand his work and to set a good example to others.

During 1998, the Ombudsman dealt with 1617 cases. 1372 of these were new complaints received in 1998. 1237 of these were sent directly by individual citizens, 63 came from associations and 60 from companies. Nine complaints were transmitted by Members of the European Parliament. 244 cases were brought forward from the year 1997. The Ombudsman also began one own-initiative inquiry.

As first noted in the Ombudsman's Annual Report for 1995, there is an agreement between the committee and the Ombudsman concerning the mutual transfer of complaints and petitions in appropriate cases. During 1998, three petitions were transferred to the Ombudsman, with the consent of the petitioner, to be dealt with as complaints. 10 complaints were transferred, with the consent of the complainant, to the European Parliament to be dealt with as petitions. Additionally, there were 80 cases in which the Ombudsman advised a complainant to petition the European Parliament. (See Annex A, Statistics, p. 310)

2.1. THE LEGAL BASIS OF THE OMBUDSMAN'S WORK

The Ombudsman's work is carried out in accordance with Article 138e of the Treaty establishing the European Community, the Statute of the Ombudsman(1) and the implementing provisions adopted by the Ombudsman under Article 14 of the Statute. The text of the implementing provisions, in all official languages, is published on the Ombudsman's website (http://www.euro-ombudsman.eu.int) . The text is also available from the Ombudsman's office.

The implementing provisions deal with the internal operation of the Ombudsman's office. However, in order that they should form a document that will be understandable by and useful to citizens, they also include certain material relating to other institutions and bodies that is already contained in the Statute of the Ombudsman.

Article 13 of the implementing provisions contains the rules governing public access to documents held by the European Ombudsman.

The Rules of Procedure of the European Parliament contain a number of provisions (Rules 159 to 161) about the Parliament's relationship with the European Ombudsman. In July 1998, the Parliament adopted changes to Rule 161 which were proposed by its Committee on the Rules of Procedure (rapporteur Mr Brian Crowley(2)). A draft report proposing a further amendment of Rule 161 is under consideration by the Committee on the Rules of Procedure (rapporteur Mr Johannes Voggenhuber). The proposed amendment would make clear that the Ombudsman's Annual and Special reports are dealt with by the same responsible Committee (in practice the Committee on Petitions).

2.2. THE MANDATE OF THE EUROPEAN OMBUDSMAN

All complaints sent to the Ombudsman are registered and acknowledged. The letter of acknowledgement informs the complainant of the procedure for considering his or her complaint and includes the name and telephone number of the legal officer who is dealing with it. The next step is to examine whether the complaint is within the mandate of the Ombudsman.

The mandate of the Ombudsman, established by Article 138e of the EC Treaty, empowers him to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State, concerning instances of maladministration in the activities of Community institutions and bodies with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. A complaint is therefore outside the mandate if:

1. the complainant is not a person entitled to make a complaint;

2. the complaint is not against a Community institution or body;

3. it is against the Court of Justice or the Court of First Instance acting in their judicial role; or

4. it does not concern a possible instance of maladministration.

Who is entitled to complain?

In April 1998, the "Association of persons with nationalised real property", with its seat in Romania, complained to the Ombudsman.

The complaint concerned a Romanian Law that dealt with restitution of real estate which had been nationalised under the Communist regime. In the complainant's view, the Law legalised the nationalisation to a large extent and was therefore in contravention of the Romanian constitution as well as the European Convention on Human Rights, which was ratified by Romania in 1994. The complainant asked the Ombudsman to persuade the Romanian authorities to modify the contested legislation, in order to provide for a more extensive restitution of property.

The Ombudsman informed the complaining association that the complaint was outside his mandate because its seat was not within a Member State of the European Union.

As the Council of Europe had already adopted a resolution on the subject-matter of the complaint, and the complainant was aware of this, it did not appear necessary to inform the complainant of the possibility to contact the European Commission of Human Rights.

Note:

In cases where a complaint is made by a non-authorised complainant the Ombudsman has the possibility to deal with the matter as an own-initiative inquiry. In this case, however, no question of an own-initiative inquiry could arise because the subject matter did not involve a possible instance of maladministration in the activities of a Community institution or body.

(Case 398/98/HL)

An example of a complaint which was not against a Community institution or body

In February 1998, Mr D. an employee of the Technical Centre for Agricultural and Rural Cooperation (CTA) complained to the Ombudsman because his employment contract at the Centre had been terminated. Given that the complainant observed that he could no longer rely on the Staff Committee within the CTA, he particularly wanted to know from the Ombudsman which forms of legal redress were open to him.

The Ombudsman considered that the complaint fell outside his mandate, because it did not concern a Community institution or body (Article 2(1) of the Statute). Indeed, the CTA has been set up in the framework of the ACP (African Caribbean and Pacific States) - EC Lomé Convention, which is an international agreement, and is governed by the ACP-EC Committee of Ambassadors (see Article 53 of the Fourth Lomé Convention). The Ombudsman informed Mr D. accordingly.

(Case 218/98/OV)

When do the Court of Justice and the Court of First Instance act "in their judicial role"?

According to Article 138e(1) of the EC Treaty, the European Ombudsman is empowered to receive complaints concerning instances of maladministration in the activities of the Community institutions and bodies, "with the exception of the Court of Justice and the Court of First Instance acting in their judicial role."

In February 1997 Hartmut Nassauer MEP forwarded to the Ombudsman a complaint from Mr L., who alleged maladministration by the Registrars of the Court of Justice and the Court of First Instance in dealing with his requests for access to the files of proceedings which he had initiated before the Courts. Mr L. claimed that the Registrars act in an administrative capacity and that such decisions are not, therefore, decisions of the Courts acting in their judicial role. He also claimed that citizens' access to their files at Court is a fundamental right, enshrined in national constitutions and the European Convention of Human Rights and that failure to respect this right infringes the constitutions of the Member States and in particular Article 103 of the German Constitution.

The question of whether such a complaint involves the Court of Justice and the Court of First Instance acting in their judicial role is a question of Community law, on which the highest authority is the Court of Justice.

In reply to the Ombudsman's inquiries in this case, the Presidents of the Court of Justice and the Court of First Instance stated that the Courts act in their judicial role when dealing with requests for access to case-files. Consequently, the Ombudsman should not continue his inquiry into the possible instances of maladministration in this case. The Ombudsman therefore closed the case.

(Case 126/97/VK)

2.2.1. "MALADMINISTRATION"

The Ombudsman's Annual Report for 1995 gave a non-exhaustive list of examples of maladministration. In response to a call from the European Parliament for a clear definition of the term, the Ombudsman offered the following definition in the Annual Report for 1997:

Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it.

In dealing with the Annual Report for 1997 the European Parliament considered that this definition, together with the further explanation provided in the Annual Report gives a clear picture of what lies within the remit of the Ombudsman. Following Mr Newman's proposal on behalf of the Committee on Petitions(3), it adopted a resolution welcoming the definition.

To apply the above definition, it is necessary to identify the rules and principles which are binding. A very useful contribution to making the rules and principles concrete can be made by a code of good administrative behaviour.

2.2.2. A CODE OF GOOD ADMINISTRATIVE BEHAVIOUR

A code of good administrative behaviour would be very helpful for the staff of Community institutions and bodies when they deal with requests or complaints from citizens. Furthermore, if the code is easily accessible to the public (for instance in the form of a decision published in the Official Journal of the European Communities), it would provide citizens with information about their rights and the standards of administration they may expect.

In the last few years there has been a general tendency to set up codes and checklists of good administrative behaviour both in the Member States and through international organisations. The Ombudsman referred for instance to the recommendation of 23 April 1998 of the Council of the OECD on improving ethical conduct in the public service. The International Ombudsman Institute published in 1993 a useful Administrative Fairness Checklist. In the law of the Member States, the Ombudsman drew attention to a recent French draft law on the improvement of the relations between the administrations and the public(4), an administrative ethics checklist established by the Ombudsman of Ireland in 1996, and some administrative procedure laws (Belgium, Denmark, Finland, Portugal).

As regards Community institutions and bodies, the only initiative of which the Ombudsman is aware is that of the European Commission. In December 1997, the Secretary General of the Commission sent to the Ombudsman a first draft of a Code of Conduct for European Commission Officials in their relations with the public. In January 1998, the Ombudsman sent his remarks on the contents and the form of this draft code and provided the Commission with national examples of codes of good administrative behaviour.

On the basis of Article C of the Treaty on European Union, European citizens are entitled to expect a consistent approach to the matter, which presupposes that arbitrary differences between institutions and bodies as regards the existence and the public accessibility of such codes should be avoided.

In November 1998, the Ombudsman therefore began an own initiative inquiry into the existence and the public accessibility, for the different Community institutions and bodies, of a code of good administrative behaviour for officials in their relations with the public. He asked the different Community institutions, bodies and decentralised agencies to inform him whether they had already adopted, or would agree to adopt, a code of good administrative behaviour for their officials in their relations with the public, which is easily accessible to the citizens.

As to the contents of a code of good administrative behaviour, the Ombudsman observed that it could include general rules on both substantive and procedural principles. As regards substantive principles a code could include, for instance, the obligation to:

- apply the law and the established rules and procedures (principle of lawfulness),

- avoid discrimination (principle of equality of treatment),

- take measures which are proportional to the aim pursued (principle of proportionality),

- avoid abuse of power,

- ensure objectivity and impartiality (including abstention in cases of personal interest),

- respect legitimate expectations (principle of legal certainty),

- act fairly,

- act consistently.

As regards procedural principles, a code could include the obligation to:

- reply to correspondence in the language of the citizen (see Article 8d of the EC Treaty, as amended by the Treaty of Amsterdam),

- send an acknowledgment of receipt if an immediate reply is not possible, and indicate the official in charge of the file (name and telephone number),

- transfer a letter/file to the competent service,

- respect the right to be heard and to make statements before a decision is taken (the rights of defence),

- reply/take a decision within a reasonable time limit (including implied rejection decision),

- take into account all relevant considerations and exclude irrelevant ones,

- state reasons for (individual) decisions, particularly for negative decisions,

- notify the decision to the persons concerned,

- indicate the possibilities of remedy/appeal for negative individual decisions,

- maintain adequate records.

A code could also contain some obligations in dealing directly with the citizens such as duties to:

- provide clear and understandable information/give correct advice,

- deal correctly with telephone calls,

- act with courtesy,

- apologise for errors,

- promote public access to the code (by distributing a leaflet for the citizens).

The own-initiative inquiry is addressed to 19 Community institutions and bodies, which are due to reply to the Ombudsman by 28 February 1999.

2.3. FREEDOM OF MOVEMENT AND THE MANDATE OF THE OMBUDSMAN

The Ombudsman has received an increasing number of complaints about the obstacles encountered by many citizens in exercising their right to move freely across the Union's internal frontiers. The problems most frequently raised range from the existence of border controls, the difficulties encountered in establishment in another Member State and the exercise there of an economic activity, to problems in the delivery of residence permits for students, retired and non-working persons, and the application of discriminatory practices on the grounds of nationality. These problems appear to create confusion and disappointment among citizens.

Some examples of complaints made in 1998 concerning freedom of movement

Entry and residence

Mr K. is a German citizen who complained that he did not obtain enough assistance from the German administration when he wished to move from Germany to Ireland.

(Case 295/98/VK)

The complainant states that he is a German citizen living in France who is unable to obtain a residence permit because the French administration claims that it has not been proved that he actually lives in the country.

(Case 420/98/ADB)

Mrs V. R. lives in Germany and her husband in Italy. She complains that every time she, or her friends or relatives intend to visit her husband, the visit has to be reported to the police.

(Case 512/98/ADB)

Study and employment

Mrs. F. C., a French national, complained of discrimination against her daughter who was studying in the Netherlands. As a foreigner, she was not offered the same facilities as Dutch students, such as free public transport, and had been placed under a separate social insurance scheme.

(Case 869/98/ADB)

The complainant is a French citizen, who qualified as a primary school teacher in Belgium. After moving back to France, the complainant was only allowed to work for three years, in private schools, with a temporary contract that had to be renewed each year. In order to be authorised to work like any other French teacher, the complainant was required to pass an examination and become a civil servant, and also attend a course of one year.

(Case 5/98/XD)

The complainant is a Dutch dietician who wanted to practice in France, but was unable to obtain recognition of the relevant diploma. Both the French Ministry of Employment and the Ministry of Education claimed not to have power to deal with the matter.

(Case 121/98/OV)

Mrs S. is a qualified and experienced physiotherapist. She was offered a job in the United Kingdom provided she obtained the recognition of her Spanish diploma. The Council for Professions Supplementary to Medicine in the United Kingdom refused to recognise her diploma, on the grounds that there are major differences between Spain and the United Kingdom regarding this particular profession.

(Case 298/98/XD)

Taxation and administrative formalities

Mr P. is a Finnish citizen who worked in Sweden. He complains that his Swedish pension is taxed both in Sweden and in Finland.

(Case 97/98/BB)

The complainant moved from Germany to the Netherlands. He claims that, in order to register a car in the Netherlands, he had to provide all the relevant papers as well as the licence plates of the car to the Dutch authorities. He complains that this process took several weeks during which it was not possible to use the car.

(Case 291/98/VK)

Mr C. A. is a Portuguese national who worked in France. Having been made redundant, he decided to go back to Portugal and receive his unemployment benefits there. He complained of great difficulties in obtaining the relevant documents in France.

(Case 393/98/ADB)

Mr A., a Spanish citizen, worked in France and in Switzerland. Having been made redundant in 1996 he decided to return to Spain with his parents. To obtain social security benefits in Spain, he was asked to produce a document (E 301) which can only be delivered to workers who had their last activity in a Member State of the Union.

(Case 436/98/ADB)

Obstacles to the exercise of the right to free movement of persons often result from the incorrect implementation and application of Community law by national, regional and local administrations.

In evaluating the problems unveiled by these complaints and looking for potential solutions, the Ombudsman has taken account of work undertaken in recent years by other Community institutions; in particular the proposals made by the "High-Level Panel on the Free Movement of Persons(5)", a group of experts gathered by the Commission in January 1996 - and the report prepared by the European Parliament on these proposals(6). The Ombudsman's experience supports the conclusions akin to those reached by the High-Level Panel and the Parliament's Report.

The European Ombudsman cannot open an inquiry into complaints against national, regional or local administrations of the Member States, since Article 2(1) of the Statute provides: "Within the framework of the Treaties (...) the Ombudsman shall help to uncover maladministration in the activities of the Community institutions and bodies (...). No action by any other authority or person may be the subject of a complaint to the Ombudsman".

In accordance with this provision, the Ombudsman has had to declare most of the complaints relating to the free movement of persons within the Union which he has received to be outside his mandate.

The practice, however, has been to suggest that the complaints be forwarded to other institutions able to deal with Member States' failure to comply with Community law. Alternatively, the complaint itself has been directly transferred to these institutions, provided that there had been a previous agreement by the complainant to such a course of action. Depending on the situation at stake and its most effective solution, the Ombudsman has passed the case on to other Community institution such as the Commission, as the guardian of the Treaty, or the Committee on Petitions of the European Parliament; or alternatively to similar institutions in the Member States, such as national and regional ombudsmen.

This type of response has not always been entirely satisfactory, since most often the problems require a speedy and concerted action at both Community and national levels. Whereas Community institutions generally lack the resources and also the means to tackle case-by-case problems resulting from occasional administrative decisions, recourse to national bodies is usually limited when difficult Community considerations arise.

It would be desirable to design new mechanisms to better cope with these problems whereby both Community and national bodies could combine their efforts towards a rapid solution of individual problems. In this respect, the Ombudsman shares the point of view put forward by the High Level Panel, which concluded that "satisfactory application of the right of free movement requires the involvement of all those concerned(7)", including as the report itself recognises, both the European Ombudsman and national Ombudsmen.

A closer cooperation between the European Ombudsman and similar institutions in the Member States, either at national, regional or local level, should facilitate a better exchange of information on specific problems concerning free circulation of persons in Europe, and ultimately, a more effective pressure on the responsible administrative authorities. Such cooperation could also involve the European Commission and the Committee on Petitions of the European Parliament.

The definition of existing rights under Community law - in particular the scope of the right to the free movement of persons - as well as the means available for their protection and defence appears also necessary. It would be desirable that individuals can easily know what are the means to protect the rights vested in them as European citizens, maybe even through a new Treaty provision.

The Ombudsman intends to pursue his review of these complaints relating to the free movement of persons in the Union, and to monitor developments in this area with a view to making more specific proposals in the future.

2.4. ADMISSIBILITY OF COMPLAINTS

A complaint that is within the mandate of the Ombudsman must meet further criteria of admissibility before the Ombudsman can open an inquiry. The criteria as set out by the Statute of the Ombudsman are that:

1. the author and the object of the complaint must be identified (Article 2(3) of the Statute);

2. the Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling (Article 1(3));

3. the complaint must be made within two years of the date on which the facts on which it is based came to the attention of the complainant (Article 2(4));

4. the complaint must have been preceded by appropriate administrative approaches to the institution or body concerned (Article 2(4));

5. in the case of complaints concerning work relationships between the institutions and bodies and their officials and servants, the possibilities for submission of internal administrative requests and complaints must have been exhausted before lodging the complaint (Article 2(8)).

An example of inadmissibility of a complaint because of Court proceedings

In February 1998, Mr S., a lawyer, wrote to the Ombudsman concerning legal proceedings begun by a client company PO. PO had complained to the Commission in March 1997 about a proposed merger between two other companies. The Commission refused to open an examination of the merger. PO brought proceedings in the Court of First Instance to challenge the refusal.

Mr S. requested that the Ombudsman:

(i) intervene in the proceedings before the Court of First Instance;

(ii) examine whether the Commission had acted fairly in refusing to investigate PO's complaint.

In relation to the first request, Article 1(3) of the Statute of the Ombudsman provides that "The Ombudsman may not intervene in cases before courts ...".

In relation to the second request, Article 138e of the EC Treaty provides for the Ombudsman to conduct inquiries: "except where the alleged facts are or have been the subject of legal proceedings."

The Ombudsman therefore informed Mr S. that he could not intervene in the proceedings before the Court of First Instance, nor inquire into the question of whether the Commission may have acted unfairly in dealing with PO's complaint.

(Case 223/98/IJH)

2.5. GROUNDS FOR INQUIRIES

The Ombudsman can deal with complaints that are within his mandate and which meet the criteria of admissibility. Article 138e of the EC Treaty provides for him to "conduct inquiries for which he finds grounds". In some cases, there may not be sufficient grounds for the Ombudsman to begin an inquiry, even though the complaint is technically admissible. Where a complaint has already been dealt with as a petition by the Committee on Petitions of the European Parliament the Ombudsman normally considers that there are no grounds for him to open an inquiry, unless new evidence is presented.

An example of a complaint that provided no grounds for an inquiry

In February 1998 Mrs B., an official of the European Commission, complained to the Ombudsman because the Commission had not started an infringement procedure against France, further to her complaint in which she alleged that the French social security authorities had refused to reimburse the costs of three months of convalescence that her father had spent in Belgium. According to the complainant this refusal was contrary to the provisions of Regulation (EEC) No 1408/71.

It appeared from the documents transmitted by the complainant that the Commission had decided to suspend the investigation of the complaint of Mrs B., given that it was waiting for two judgments of the Court of Justice (Cases C-120/95 and C-160/96), in which the question of the prior authorisation foreseen by Article 22 of Regulation (EEC) No 1408/71, which conditioned also the issue of the complaint by Mrs B., had to be resolved.

It appeared from the complaint that the Commission had started to examine the complaint, had asked for information from the French authorities and had informed the complainant in a detailed manner about the legal questions raised by her complaint. The Commission had decided to suspend its investigations until the Court had given its judgments. Therefore, the Ombudsman decided that there were no grounds for him to inquire into the complaint and Mrs B. was informed accordingly.

(Case 283/98/OV)

2.6. ANALYSIS OF THE COMPLAINTS

Of the 3693 complaints registered from the beginning of the activity of the Ombudsman, 15 % originated from France, 13 % from Germany, 14 % from Spain, 11 % from the United Kingdom, and 12 % from Italy. A full analysis of the geographical origin of complaints is provided in Annex A, Statistics.

During 1998, the process of examining complaints to see if they are within the mandate, meet the criteria of admissibility and provide grounds to open an inquiry was completed in 93 % of the cases. 31 % of the complaints examined appeared to be within the mandate of the Ombudsman. Of these, 212 met the criteria of admissibility, but 42 did not appear to provide grounds for an inquiry. Inquiries were therefore begun in 170 cases.

Most of the complaints that led to an inquiry were against the European Commission (75 %). As the Commission is the main Community organ that makes decisions having a direct impact on citizens, it is normal that it should be the principal object of citizens' complaints. There were 27 complaints against the European Parliament and seven complaints against the Council of the European Union.

The main types of maladministration alleged were lack of transparency (69 cases), discrimination (21 cases), unsatisfactory procedures or failure to respect rights of defence (25 cases), unfairness or abuse of power (29 cases), avoidable delay (17 cases) negligence (38 cases), failure to ensure fulfilment of obligations, that is failure by the European Commission to carry out its role as "Guardian of the Treaties" vis-à-vis the Member States (11 cases) and legal error (seven cases).

2.7. ADVICE TO CONTACT OTHER AGENCIES AND TRANSFERS

If a complaint is outside the mandate or inadmissible, the Ombudsman always tries to give advice to the complainant as to another agency which could deal with the complaint. If possible the Ombudsman transfers a complaint directly to another competent agency with the consent of the complainant, provided that there appear to be grounds for the complaint.

During 1998, advice was given in 600 cases, most of which involved issues of Community law. In 259 cases the complainant was advised to take the complaint to a national or regional Ombudsmen or similar body. In addition, with the consent of the complainant seven complaints were transferred directly to a national Ombudsman. 80 complainants were advised to petition the European Parliament and, additionally, 10 complaints were transferred to the European Parliament, with the consent of the complainant, to be dealt with as petitions. In 154 cases the advice was to contact the European Commission. This figure includes some cases in which a complaint against the Commission was declared inadmissible because appropriate administrative approaches had not been made to the Commission. In 107 cases the complainant was advised to contact other agencies.

2.8. DECISIONS FOLLOWING AN INQUIRY BY THE OMBUDSMAN

When the Ombudsman decides to start an inquiry into a complaint, the first step is to send the complaint and any annexes to the Community institution or body concerned for an opinion. When the opinion is received, it is sent to the complainant for observations. As explained in Section 2.10, the Ombudsman cannot take into account information supplied by one of the parties unless the other party has the opportunity to comment on it.

In some cases, the institution or body itself takes steps to settle the case to the satisfaction of the complainant. If the opinion and observations show this to be so, the case is then closed as "settled by the institution". In some other cases, the complainant decides to drop the complaint and the file is closed for this reason.

If the complaint is neither settled by the institution nor dropped by the complainant, the Ombudsman continues his inquiries. If the inquiries reveal no instance of maladministration, the complainant and the institution or body are informed accordingly and the case is closed.

If the Ombudsman's inquiries reveal an instance of maladministration, if possible he seeks a friendly solution to eliminate it and satisfy the complainant. At a meeting held in Strasbourg on 21 October 1997, the Ombudsman and the Secretary-General of the Commission, Mr Carlo Trojan agreed that an informal meeting could, in some cases, provide an appropriate way to pursue a friendly solution in cases involving the Commission. One such meeting took place in 1998, leading to a friendly solution.

If a friendly solution is not possible, or if the search for a friendly solution is unsuccessful, the Ombudsman either closes the file with a critical remark to the institution or body concerned, or makes a formal finding of maladministration with draft recommendations.

A critical remark is considered appropriate for cases where the instance of maladministration appears to have no general implications and no follow-up action by the Ombudsman seems necessary.

In cases where follow-up action by the Ombudsman does appear necessary (that is, more serious cases of maladministration, or cases that have general implications), the Ombudsman makes a decision with draft recommendations to the institution or body concerned. In accordance with Article 3(6) of the Statute of the Ombudsman, the institution or body must send a detailed opinion within three months. The detailed opinion could consist of acceptance of the Ombudsman's decision and a description of the measures taken to implement the recommendations.

If a Community institution or body fails to respond satisfactorily to a draft recommendation, Article 3(7) provides for the Ombudsman to send a report to the European Parliament and to the institution or body concerned. The report may contain recommendations. The possibility for the European Ombudsman to present such a Special Report to the Parliament is of inestimable value for his work. Some national Ombudsmen have had a long struggle to obtain a comparable possibility. Special Reports should not therefore be presented too frequently, but only in relation to important matters when the Parliament can take action to assist the Ombudsman in accordance with the Statute of the Ombudsman.

The Ombudsman's first Special Report, made on 15 December 1997, concerned the Ombudsman's own initiative inquiry into public access to documents. The Report was discussed by the Parliament at the plenary session in July 1998 on the basis of the report on it by the Committee on Petitions (rapporteur Astrid Thors)(8).

In 1998 the Ombudsman began 171 inquiries, 170 in relation to complaints and one own-initiative.

51 cases were settled by the institution or body itself. (As explained in section 2.9, some cases have been classified in this category in 1998 which were not so classified in previous years). In 96 cases, the Ombudsman's inquiries revealed no instance of maladministration.

A critical remark was addressed to the institution in 29 cases. A friendly solution was reached in four cases. One draft recommendation to the institutions and bodies concerned was made. (For further details, see Appendix A, Statistics).

2.9. CASES INVOLVING FAILURE TO REPLY TO CORRESPONDENCE

A common type of complaint concerns failure to reply to correspondence. Soon after the beginning of the Ombudsman's activity, it became clear that a telephone call from the Ombudsman's office to the responsible service often results in an immediate reply to the citizen. In such cases, there is normally no point pursuing the inquiry further.

The former practice of the Ombudsman in cases in which his intervention succeeded in obtaining a reply to unanswered correspondence was to inform the complainant that there no longer appeared to be grounds to conduct an inquiry into the complaint under Article 138e of the EC Treaty (see section 2.5). For statistical purposes, such cases were included in the category "no grounds for inquiry" in both the 1996 and 1997 Annual Reports. In March 1998, this practice was reviewed, following a query from Mr Edward Newman (rapporteur for the Committee on Petitions' report on the 1997 Annual Report) about the cases classified as "no grounds for inquiry". It was concluded that, in future, such cases should be classified as "settled by the institution". There were 32 decisions of this kind in 1998.

Complaints about unanswered correspondence: examples of cases settled by the institution

On 3 March 1998, Mr B. complained to the Ombudsman that the Commission had failed to reply to his letter of 2 December 1996 in which he asked for information about the introduction of the euro. The Ombudsman contacted the responsible service of the Commission to request that they reply to the complainant and send him the information which he had requested. Further to this intervention, the Commission replied to the complainant on 18 March 1998. Since this step appeared adequate to settle the matter, the Ombudsman closed the case.

(Case 269/98/ADB)

In June 1998, Ms V. complained on behalf of the County Administrative Court of Uusimaa that the Office for Official Publications of the European Communities (OPOCE) had failed to reply to two letters. The Court had written to OPOCE in Finnish on 10 June 1996 to inquire why it had not received the 1994 Special Edition of the Official Journal of the European Communities. A reminder letter was sent on 14 April 1997 in English. No reply was received to either letter.

The Ombudsman contacted OPOCE by telephone to request that a reply be sent to the County Administrative Court of Uusimaa. Further to this intervention, OPOCE contacted the Court and forwarded to it the missing volumes of the Official Journal of the European Communities in Finnish and Swedish. Since this step appeared adequate to settle the matter, the Ombudsman closed the case.

(Case 615/98/BB)

Naturally not every complaint about unanswered correspondence can be resolved satisfactorily by telephone enquiries. If the responsible service of the institution concerned cannot identify the correspondence, or if no-one is willing to accept responsibility for preparing a rapid reply, the Ombudsman writes to the President of the institution concerned to request an opinion on the complaint. The Ombudsman would also follow this course of action if there were reason to suspect that the original failure to reply was anything other than an isolated administrative oversight, or if the substance of the complaint is an allegation of unjustified delay in replying to correspondence.

2.10. SOME ISSUES CONCERNING ACCESS TO DOCUMENTS

During the course of the year, the Ombudsman considered a number of different questions concerning access to documents. Since it appears that the relevant rules and principles are not always fully understood by the Community institutions and bodies, this section of the Report explains the different questions that arise and how they are dealt with under the Treaty and the Statute of the Ombudsman.

2.10.1. COMPLAINTS ABOUT REFUSAL OF ACCESS TO DOCUMENTS

Most of the Community institutions and bodies have rules on public access to the documents that they hold. In 1993, the Commission and the Council adopted a joint Code of Conduct about access to their documents. The Code was implemented through separate Decisions of the two institutions(9). Following an own-initiative inquiry by the Ombudsman in 1996, other Community institutions and bodies have also adopted rules on public access, most of which are similar to those of the Council and Commission.

If a request for access to documents is refused, the Council and Commission rules allow the citizen to make a confirmatory application. The citizen whose confirmatory application is rejected has the possibility either to complain to the Ombudsman, or to bring proceedings in the Court of First Instance.

In the case of a complaint to the Ombudsman, the issue is whether the refusal of access constitutes maladministration. The question for any inquiry, therefore, is whether the institution concerned has properly applied its rules on public access, and whether it has acted within the limits of its legal authority in exercising any discretionary power.

During 1998, the question arose of what should happen if the Ombudsman considers that an institution has wrongly applied its own rules. The appropriate course of action is for the institution concerned to reconsider the matter, this time applying the rules correctly. Of course, the Ombudsman cannot order the institution to do this, nor can he annul the relevant decision. However, by explaining his views in a critical remark, he gives the institution itself the possibility to take the necessary action.

2.10.2. FAIR PROCEDURE IN THE OMBUDSMAN'S INQUIRIES

Another question which arose during 1998 concerns the documents which the institution or body concerned sends to the Ombudsman as part of its opinion on the complaint. In some cases the institution concerned has forwarded documents to the Ombudsman containing information which could be relevant to the Ombudsman's decision on the case, but has asked the Ombudsman to keep the documents confidential vis-à-vis the complainant.

In these cases the Ombudsman has explained to the institution concerned that it is a basic principle of fair procedure that the Ombudsman's decision on a complaint cannot take into account information contained in documents provided by one party, unless the other party has had the chance to respond. The Ombudsman's decision on a complaint cannot, therefore, take into account information contained in documents supplied by the institution or body concerned, unless the complainant has had a chance to make observations on the documents.

2.10.3. THE OMBUDSMAN'S POWER TO INSPECT FILES

A third issue which arose during 1998 concerns the Ombudsman's power to inspect files held by Community institutions and bodies. The relevant part of Article 3(2) of the Statute of the Ombudsman is as follows:

"The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy.

They shall give access to documents originating in a Member State and classed as secret by law or regulation only where that Member State has given its prior agreement.

They shall give access to other documents originating in a Member State after having informed the Member State concerned."

The normal principle in Member States with a national Ombudsman system is that the Ombudsman can inspect any document held by the administration, if he considers it necessary to do so as part of an inquiry, including documents to which citizens cannot have access.

This power is of fundamental importance, since it is a guarantee for the citizen that the Ombudsman can make an independent check on the accuracy and completeness of the answers given by the administration. For as long as Article 3(2) continues to restrict the Ombudsman's access to documents, therefore, it is important that the restrictions should be interpreted narrowly and that the burden of proof should be on the institution or body which seeks to deny access.

The question of whether restrictions on the European Ombudsman's access to files are appropriate in a European Union which is committed to democracy, transparency and to efficient and honest administration could be considered by the three institutions (European Parliament, Council and Commission) involved in the procedure for amendment of the Statute of the Ombudsman.

Naturally, the Ombudsman's power of inspection is complemented by a duty of confidentiality. Article 4 of the Statute of the Ombudsman makes clear that when the Ombudsman or his staff inspect documents held by the administration, they are bound by the same duty of confidentiality as the administration itself. Inspection of documents by the Ombudsman does not therefore result in release of the documents to the complainant, or to anyone else.

It is therefore a mistake to suggest that the rules on public access to documents which Community institutions and bodies have adopted can be used to restrict the Ombudsman's access to documents. This suggestion appears to be based on a fundamental misunderstanding of the nature of the Ombudsman's power of inspection, which is used to verify the truth and completeness of the administration's answers to a complaint and which does not result in public access to the documents concerned.

3. DECISIONS FOLLOWING AN INQUIRY

3.1. CASES WHERE NO MALADMINISTRATION WAS FOUND

3.1.1. THE EUROPEAN PARLIAMENT

RECOVERY OF MEDICAL EXPENSES

Decision on complaint 1044/20.11.96/KP/JMA against the European Parliament

The complaint

In November 1996 X. complained to the Ombudsman concerning the refusal of the European Parliament to reimburse the cost of a cure for delicate children for her daughter.

The European Parliament rejected her request on the grounds that the medical centre concerned "was not considered a competent medical or paramedical institute". A second request was rejected on the basis that the treatment in question did not seem to correspond to the requirements of a cure for delicate children.

In December 1994 the complainant appealed unsuccessfully to the Secretary-General of the Parliament. The Secretary-General's response indicated that the complainant had a right to recover specific medical expenses incurred during the cure.

In the complaint to the Ombudsman, X. claimed that:

(i) the European Parliament had not followed proper procedures, since the Management Committee of the Health Insurance Scheme had not given its advice on the matter;

(ii) the treatment should have been considered as the most appropriate for her daughter;

(iii) her request for reimbursement of specific medical expenses had been rejected on the grounds that it had not stipulated the price and the date of every medical visit and the name and the quality of doctors.

The complainant asked the Ombudsman to take the necessary steps to compel the European Parliament to pay all the expenses for the cure, including travel costs.

The inquiry

The Parliament's opinion

The complaint was forwarded to the European Parliament. The Parliament's opinion stated that the normal procedure in a case of this type would be appeal to the Court of First Instance.

On the substance of the complaint the opinion included, in summary, the following points:

(i) in reaching its decision, the appointing authority took due account of the opinion given by the Management Committee of the Health Insurance Scheme;

(ii) treatment in the selected centre was usually given to children under 16 years of age, whereas the complainant's daughter was already 17 when she started her treatment;

(iii) X.'s request for reimbursement for individual medical expenses incurred during the cure was not in conformity with the relevant rules, since it was too general and included costs which could not be reimbursed. Furthermore, the relevant rules provide that travel costs cannot be reimbursed.

The complainant's observations

In her observations, X. stated that she had decided not to appeal to the Court of First Instance.

She claimed that the bill from the medical centre was correctly filled out and stated that the price of the treatment had been calculated on a package basis, from which medical costs could not be separately identified. She considered that the Parliament's refusal to reimburse her showed lack of flexibility and good will.

X. also commented on the procedure followed by the Ombudsman in dealing with complaints. She considered that it was not appropriate to begin the procedure by forwarding the complaint to the institution concerned for an opinion.

The Decision

1. Powers of the European Ombudsman to make inquiries into the case

1.1. The European Parliament stated that the normal procedure in a case of this type would be to make an application to the Court of First Instance.

1.2. Within the constitutional framework of the Treaties, the Court of Justice is the highest authority on the interpretation and application of Community law. However, the Ombudsman makes inquiries to help uncover instances of maladministration in the activities of Community institutions and bodies.

1.3. To be admissible, a complaint to the Ombudsman must have been preceded by the appropriate administrative approaches to the institution concerned. Similarly, if the complaint concerns work relationships between the Community institutions and bodies and their officials and other servants, no complaint can be made to the Ombudsman unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned(10).

1.4. Once these internal procedures have been exhausted, Community officials or other servants have the possibility either to appeal to the Court of First Instance, or alternatively, to complain to the Ombudsman.

2. The Ombudsman's procedures

2.1. In her observations, the complainant considered that it was not appropriate for the Ombudsman to begin an inquiry by forwarding the complaint to the institution concerned for an opinion.

2.2. Article 3(1) of the Statute of the Ombudsman, requires that the Ombudsman shall inform the institution or body concerned of his inquiries into any suspected instance of maladministration, so that they can submit any useful comment to him.

3. Medical considerations on the type of cure to be followed

3.1. Annex I, Title XI of the Rules governing the reimbursement of medical expenses provides that cures at a health resort must be recognised as strictly necessary by the medical officer responsible for settling claims.

3.2. In the present case the responsible medical officer, having reviewed the case, concluded that the cure did not meet the necessary medical requirements. There was no evidence that in reaching this decision, the medical officer had not properly followed the relevant criteria.

4. Reimbursement of expenses

4.1. Although the Parliament refused to reimburse the whole cost of the cure for delicate children, it agreed to cover specific medical expenses. However, the Parliament rejected the bill submitted by the complainant on the grounds that it did not identify these costs separately, but referred only to a general sum corresponding to the medical centre's daily charges.

4.2. The applicable Rules provide only for reimbursement of medical expenses. The Parliament therefore acted properly in requiring separate identification of medical expenses as a condition of reimbursement.

4.3. Annex I, Title XI of the Rules governing the reimbursement of medical expenses do not provide for reimbursement of travel costs.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appeared to have been no maladministration by the European Parliament. The Ombudsman therefore closed the case.

RULES FOR JOINING EUROPEAN PARLIAMENT PENSION SCHEME

Decision on joined complaints 74/97/PD and 85/97/PD against the European Parliament

The complaints

In January 1997, Mr M., MEP, complained to the Ombudsman against the European Parliament, alleging maladministration in relation to the additional pension scheme for Members of Parliament. Also in January 1997 Mr B., a former MEP, informed the Ombudsman that he would like to associate himself with Mr M.'s complaint.

The background to the complaints was that, by decision of 12 June 1990, the Bureau of the Parliament set up an additional (voluntary) pension scheme for Members. The rules governing the pension scheme constitute Annex IX (formerly Annex X) to the Rules governing the payment of expenses and allowances to Members. In the autumn of 1992, a time limit of six months was laid down for joining the pension scheme. Neither Mr M. nor Mr B. joined the scheme at that time; they claimed that they were not informed about the introduction of the time limit.

Having been re-elected to the European Parliament in 1994, Mr M. was allowed to join for the period 1994 to 1999, but not for the previous period. As Mr B. was no longer an MEP, he could not apply to join for the period 1994 to 1999, and he was not allowed to join for the previous period.

Mr M. contacted different instances within the Parliament with a view to being allowed to join the scheme retroactively, for the period before 1994. He argued that he had not been informed about the time limit introduced in 1992 and that Parliament had applied the time limit in an unfair and discriminatory way. On 24 July 1995, the Chairman of the Pension Fund set up under the scheme, who was also Member of the College of Quaestors of the Parliament, replied. The letter drew Mr M's attention to the cut-off date for joining the scheme, and informed him that the possibility of backdated contributions had been considered. It had been concluded, however, that such backdating was neither practical nor legal. The letter added: "May I also correct an error you have made concerning the College of Quaestors' discussion on 24 April concerning Mr L. As you will see from the enclosed extract of the minutes of that meeting that matter concerned the French and Italian pension schemes administered by the European Parliament on behalf of the French and Italian Governments. Thus it refers to Annex III of the Rules on Members' Expenses and Allowances rather than Annex X (now Annex IX) which actually contains the rules of MEPs' additional voluntary pension scheme. In addition to this, the request by Mr L. was to receive a pension from, rather than join, that particular pension scheme."

The abovementioned extract of the minutes of the meeting of the College of Quaestors read:

"... under the rules governing the pensions for Members of the French National Assembly, which applied by analogy to French Members of the European Parliament, applications to receive a pension must be made in writing within six months of the date on which a Member or former Member becomes eligible. A former French Member, who was unaware of this provision, had made his application to the European Parliament seven months after becoming eligible. After a brief discussion, the College:

authorised an exception to the current Rules in favour of Mr L. in order to enable him to receive the pension notwithstanding his failure to apply within the six-month time limit;

instructed the Administration to submit a draft amendment with the aim of clarifying the time limits applicable to Annex III to the Rules on Members' Expenses and Allowances."

In their complaints to the Ombudsman, the complainants alleged in substance that:

(i) the time limit for joining the pension scheme was not properly advertised;

(ii) it was unfair and discriminatory not to allow the complainants to join the scheme with retroactive effect.

The inquiry

The European Parliament's opinion

The complaints were forwarded to the European Parliament. In its opinion, the Parliament stated that it had examined the complaints on the basis of an opinion from its Legal Service, and adopted a decision which rejected the complainants' allegations. It enclosed a copy of the opinion from its Legal Service.

In substance, the opinion from the Legal Service concluded that the complainants' claim not to have been properly informed of the changes was unfounded. Mr M. had been given written notice at the Parliament and his home address. In addition, the minutes of the decisions by the Bureau were circulated to all MEPs who, moreover, again had six months to join the pension scheme following their re-election. As for Mr B., the Legal Service had not been given any evidence to prove that he had not been aware of the time limit for joining the scheme. The Legal Service also did not have any evidence that Mr B. asked to join the scheme prior to the contested decision by the College of Quaestors or the modifications of the regulations by the Bureau.

As for the decision of 28 October to fix a time limit of six months, the Legal Service considered that the College was bound to respect a general rule set up by itself. To do otherwise would infringe the principle of equal treatment. Accordingly, membership was refused to all MEPs who applied after 15 December 1992, with one exception. That exception, however, was specific. It had been based on an agreement of the College of Quaestors made before the question arose of limiting membership of the pension scheme in the middle of a parliamentary term of office. It could not, therefore, be applied, in the present case, as a general exception to the rule.

Finally, the opinion of the Legal Service put forward the following additional three points as a basis for their conclusion that the contested decision was not arbitrary:

"1. to ensure a healthy financial management and restore a financial balance in the pension fund which according to a report by Coopers and Lybrand of 4 August 1992 was deficient at that moment;

2. to allow the accountants to carry out reliable actuarial calculations necessary within the framework of financial management, and to allow the budgetary authorities to make more detailed budgetary forecasts;

3. not to discriminate against the members who had joined the scheme at its very beginning and whose financial situation would in fact be less favourable than the 'new members' who would be able to make back payments."

The complainants' observations

In their observations the complainants maintained their complaints.

The Decision

1. The allegation that the deadline for joining the pension scheme was not properly advertised

1.1. It appears that there are no regulatory rules governing the question of what should be considered to be proper advertisement to MEPs. In particular, the European Parliament's Rules of Procedure do not contain any relevant rules.

1.2. In relation to Article 173 of the Treaty and Articles 90 and 91 of the Staff Regulations, the Community Courts have ruled that the notification of a measure normally occurs when the measure is communicated to the addressee and he is able to take knowledge of it(11). The Courts have also ruled that the burden of proof of due notification lies with the administration. However, this case-law does not appear to be transposable to this case. The case-law concerns individual acts which adversely affect the addressee, where the exact definition of the moment of notification is of utmost importance for the calculation of the time limit within which judicial proceedings can be brought. This case concerns communication of general information concerning an offer, of which the addressee can choose to make use or not. In case the addressee applies and his application is refused, it is that refusal to which the time limit for bringing judicial proceedings applies(12).

1.3. As for the Community institutions' administrative practices, it appears that frequent use is made of general communications to make possible rights known to servants for which they may have to apply(13).

1.4. On this basis, it must be concluded that the question of proper communication of information to MEPs is a question that lies within the Parliament's powers of internal organisation. In exercising these powers, the Parliament shall, according to the case-law of the Community Courts, act in conformity with the interests of good administration(14). The question is thus whether Parliament acted accordingly.

It appeared that in this case, Parliament sent out a communication to the Members concerning the time limit introduced in the pension scheme through the internal distribution system of Parliament. As a supplementary way of ensuring the communication to MEPs, the Parliament also sent it by ordinary mail to each MEP's home address. Thus, the individual Member had at least two occasions to get knowledge of the time limit introduced. This did not appear to constitute an instance of maladministration.

2. Unfair and discriminatory treatment

2.1. As for the question whether the refusal to admit the complainants to the scheme with retroactive effect was unfair and discriminatory, it appeared that this question covered two issues. The first issue is whether it was unfair that the Regulation in general did not provide for joining with retroactive effect. The second issue is whether the time limit for joining the pension scheme in the complainants' case should have been waived. In this context, it seemed to be common ground between the complainants and Parliament that waiving the time limit in their case would entail joining with retroactive effect. Thus, it was clear that if the first question was answered to the effect that there should be a general possibility for joining with retroactive effect, the second question was made redundant.

2.2. As concerned the first question, it was common ground between the complainants and Parliament that the Regulation did not contain any provision to the effect that the scheme could be joined retroactively. The question was thus whether it was fair that Parliament had not introduced such a provision. It appeared that Parliament had not done so for reasons of sound financial management of the scheme. Furthermore, it shall be noticed that it was within Parliament's powers not to set up a scheme at all. Thus, the Parliament must also be entitled to lay down limitations on the scheme for the said reasons.

Therefore, the Ombudsman found that the fact that the Parliament had not provided for a general possibility for joining the scheme with retroactive effect did not constitute an instance of maladministration.

2.3. As concerned the question whether the time limit for joining the scheme in the complainants' case should have been waived, the examination of this question fell into various parts. Firstly it had to be examined whether the refusal to waive the time limit was unfair and subsequently whether it was discriminatory.

2.4. As for the fairness, it shall firstly be observed that the Regulation governing the pension scheme does not contain any provision allowing for waiving the time limit on grounds of equity. The relevant provision of the Regulation simply provides that Members shall have a "maximum period of six months following their election or re-election" for joining the scheme.

2.5. In the absence of an explicit provision allowing for waiving the time limit, the question was whether under Community law there exists a general principle to the effect that a time limit shall be waived on grounds of equity. There appears to be no such general principle.

2.6. Against this background and taking into account the reasons of sound financial management indicated by the Parliament, it could not be considered unfair that the time limit was applied strictly to the complainants.

2.7. As for the allegation about discrimination, it shall be recalled that the principle of equal treatment requires that identical situations are treated identically and that different situations are not treated identically.

2.8. It was put forward that another MEP was allowed to join the scheme in spite of being outside the time limit. It appeared from the Parliament's opinion that this Member, prior to the introduction of the time limit, received assurances that she could join the scheme. Thus, her situation was not identical to the one in this case.

2.9. Secondly, it was put forward that Parliament under the retirement pension scheme - the scheme in Annex III - had waived the time limit in one case, i.e. the case mentioned in the letter of 24 July 1995 quoted above. In this regard, it shall be noticed that the demand concerned was presented one month after the expiration of the time limit concerned, that it was presented under another scheme in a different financial situation and that the demand concerned entitlement to a pension to which the Member concerned had already contributed. Furthermore, it appeared from the amendment to the rules, for which the administration was requested to submit a proposal in the quoted minutes of the meeting of the College of Questors, that demands presented outside time limit have no retroactive effect. The situation thus appeared to be different from the one in this case.

2.10. Consequently, the principle of equal treatment did not appear to have been violated. However, the question whether the principle of equal treatment had been violated is a question of law and therefore, it shall be recalled that the Court of Justice is the highest authority on questions of Community law.

On the basis of the European Ombudsman's inquiries into this complaint, there appeared to have been no maladministration by the European Parliament. The Ombudsman therefore closed the case.

3.1.2. THE COUNCIL OF THE EUROPEAN UNION

INSPECTION TO CHECK REASONS FOR REFUSAL OF ACCESS TO DOCUMENTS

Decision on complaint 1087/10.12.96/Statewatch/UK/IJH against the Council

The complaint

The complaint concerns four requests for documents which the complainant addressed to the Council in July and August 1996. His applications were made under the Council Decision on public access to Council documents(15) (hereafter "Decision 93/731/EC").

On 30 July 1996, he requested copies of 71 reports considered at meetings of the "K4" Committee held in September, October and November 1994. On 31 July 1996 he requested six documents dating from 1992 and 1993. On 13 August 1996 he sent two letters to the Council. The first requested a copy of a single report produced in 1992. The second requested copies of 26 reports considered at the JHA Council held in Luxembourg on 4 June 1996, 23 of which had been produced in 1996 and three of which bore earlier dates.

On 26 September 1996, the Council's General Secretariat replied to the complainant. The reply stated that his requests "in this regard are repeat applications which equally relate to a very large number of documents" and that the General Secretariat had found a fair solution under Article 3(2) of Decision 93/731/EEC by considering only the documents produced in 1996 (i.e. 23 of the 26 documents requested in the second letter dated 13 August 1996). The General Secretariat provided the complainant with 16 of the 23 documents, but denied access to the seven others.

On 10 October 1996, the complainant made a confirmatory application for all the documents to which he had been refused access. On 20 November 1996, the Presidency of the Council replied upholding the original decision to apply a "fair solution" and therefore considering only the seven documents produced in 1996.

In relation to these seven documents, the Council stated that it had carefully balanced the complainant's interest in seeking access against the interest of the Council in keeping its deliberations confidential and that the latter interest outweighed the former. It gave further details as follows:

"Documents 7574/96, 6982/2/96 and 7753/96 contain detailed national positions on a Convention on external frontiers, on a recommendation on illegal employment of third-country nationals and on a Convention of extradition, respectively. These issues are still under discussion or have been adopted only very recently.

Documents 7717/1/96 and 7718/1/96 contain detailed national positions on the budget of the Europol Drugs Unit and the Europol computer system.

Finally, documents 7788/96 and 7791/96 contain references to opinions of the Council Legal Services on the issue of judicial interpretation of the Europol Convention, as well as comments made by some delegations on this matter."

In his complaint to the Ombudsman, the complainant claimed that the Council's treatment of his requests for access to documents was unfair and possibly unlawful.

The inquiry

The Council's opinion

The complaint was forwarded to the Council, together with five other complaints made by the same complainant. In March 1997, the Council sent a reply which contested the competence of the Ombudsman to deal with the complaints. On 15 April 1997, the Ombudsman wrote to the Council confirming his original decision that the complaints were within his mandate and renewing his request for an opinion on the substance of the complaints.

On 20 June 1997 the Council complied with the Ombudsman's request. As regards the application of a "fair solution", the Council remarked that its opinion on another complaint by the same complainant (1053/25.11.96/Statewatch/UK/IJH) also applied in this case.

The complainant's observations

In his observations, the complainant claimed that:

- the Council was not entitled to apply a "fair solution" to his four requests for documents,

- the Council is not entitled to refuse access to documents on the grounds that they have been recently adopted, or that they include the views of Member States.

The Ombudsman's inspection of documents

The Ombudsman considered it necessary to inspect the seven documents to which the Council had refused access under Article 4(2) of Decision 93/731/EC.

The Ombudsman informed the complainant of the inspection which, in conformity with Article 4(1) of the Statute of the Ombudsman, could not involve release to the complainant of the documents themselves, or any information contained in them.

The inspection was carried out in the Justus Lipsius building of the Council in Brussels on 2 October 1998. As well as providing access to the documents, the Council services offered to supply copies to the Ombudsman's services if required. After inspection of the documents, the Ombudsman's services considered that it was unnecessary to take copies.

The Decision

1. The jurisdictional point

1.1. The Council's objection to the Ombudsman's competence appeared to be based on two propositions:

(a) the competence of the Ombudsman does not extend to actions taken by the Council in relation to cooperation in the fields of Justice and Home Affairs (the "third pillar"); and

(b) the subject matter of the complaints concerns action taken by the Council under the third pillar.

1.2. The Ombudsman's decision that he can deal with the complaints is based on his view that the second of these propositions is mistaken. It is therefore unnecessary for him to take a position on the first proposition.

1.3. The subject matter of the complaints concerns the Council's response to requests for access to documents. The requests were made under Decision 93/731/EC and were dealt with by the Council accordingly. Decision 93/731/EC was made under Article 151 of the EC Treaty. In its judgement in Netherlands v Council(16), the Court of Justice confirmed that the Decision has legal effects vis-à-vis third parties as a matter of Community law.

1.4. The Decision was interpreted and applied by the Court of First Instance in Carvel and Guardian Newspapers v Council(17), a case which also involved access to third pillar documents. Given the limitations on the jurisdiction of the Court of Justice imposed by Article L of the Treaty on European Union, the Court of First Instance would have had no jurisdiction to deal with this aspect of the Carvel case if access to third pillar documents was itself a third pillar matter.

1.5. From the above, it appears that the correct interpretation and application of Decision 93/731/EC on public access to documents is a matter of Community law and not a third pillar matter, even if the documents in question concern actions under the third pillar. The Ombudsman informed the Council of this decision on 15 April 1997. (NB: In its judgment of 17 June 1998, the Court of First Instance rejected, on similar grounds, the Council's objection to the jurisdiction of the Court in the Tidningen Journalisten case(18)).

2. The application of a "fair solution"

2.1. The complainant has claimed that Article 3(2) of Decision 93/731/EC does not entitle the Council to apply a "fair solution" to his four applications for documents.

2.2. As the Council noted in its opinion, the issue in relation to this aspect of the complaint is identical to that raised in another complaint by the same complainant: 1053/25.11.96/Statewatch/UK/IJH. The Ombudsman's decision of 28 July 1998 in the above case therefore also applies to the present case.

2.3. Applying the above decision, in particular as regards the meaning of the terms "repeat applications" and "very large documents", it is clear that the Council was not entitled to apply a "fair solution" under Article 3(2) of Decision 93/731/EC to the four requests for documents in this case.

3. The refusal of access under Article 4(2)

3.1. The Council refused access to seven documents under Article 4(2) of Decision 93/731/EC, which reads as follows: "Access to a Council document may be refused in order to protect the confidentiality of the Council's proceedings."

According to the established case-law, the application of this provision requires the Council to strike a genuine balance between, on the one hand, the interest of the citizen in obtaining access to documents and, on the other, any interest of its own in maintaining the confidentiality of its deliberations.

3.2. The complainant claims that, in applying Article 4(2), the Council is not entitled to refuse access to documents on the grounds that they have been recently adopted, or that they include the views of Member States. The Ombudsman is not aware of any legal rule or principle which would require the Council, when balancing the interests under Article 4(2), to exclude either of these elements from consideration.

3.3. The Ombudsman's inspection of documents confirmed that the contents of the documents in question correspond to the reasons given by the Council.

3.4. There appears, therefore, to be no maladministration by the Council in relation to this aspect of the case.

Conclusion

As regards the application by the Council of a "fair solution", the Ombudsman's critical remark in 1053/25.11.96/Statewatch/UK/IJH (decision of 28 July 1998) applies also to the complainant's requests for documents in the present case.

As regards the refusal of access to seven documents under Article 4(2) of Decision 93/731/EC, on the basis of the Ombudsman's inquiries, there appears to be no maladministration by the Council.

The Ombudsman therefore closed the case.

3.1.3. THE EUROPEAN COMMISSION

COMPETITION: REPLY TO A SUBMISSION - OMBUDSMAN'S COMPETENCE

Decision on complaint 449/96/20.02.96/HKC/PD against the European Commission

The complaint

In February 1996, HKC, a Danish law firm, complained to the Ombudsman on behalf of LF, a Danish trade union. The complaint concerned the Commission's decision to grant an exemption from the competition rules for an alliance agreement between two airlines, whose employees were members of LF. In the complainant's view, the agreement would lead to job losses amongst LF members. According to LF, the Commission had an obligation to take effects on unemployment into account when considering whether to grant competition exemptions. The complaint also concerned the fact that LF's observations, which the Commission had invited LF to submit to it under the applicable exemption Regulation, were neither acknowledged nor replied to.

The inquiry

The Commission's opinion

The complaint was forwarded to the Commission. In its opinion, the Commission claimed that the Ombudsman was not competent to take a stand on the question of whether effects on unemployment should be taken into account when a competition exemption was granted, as the matter concerned an alleged failure in applying the law, as opposed to maladministration. The Commission furthermore contended that it was not obliged to reply to observations which it had invited third parties, such as LF, to submit, as the observations were merely intended to assist the Commission in its analysis.

The complainant's observations

In its observations, the complainant maintained the complaint and considered the Ombudsman competent to deal with all its aspects.

The Decision

1. The Ombudsman considered that he was competent to deal with the question of whether the Commission was obliged to take effects on unemployment into account when considering whether to grant competition exemptions. Further remarks on this issue were made in a letter to the President of the Commission, the contents of which are summarised in the section on further remarks below.

2. On the substantive issue the Ombudsman found that, on the basis of the applicable rules and the case-law of the Court of Justice, there appeared to be no obligation upon the Commission to take such considerations into account.

3. As for the Commission's failure to acknowledge and reply to LF's observations, the Ombudsman observed that the applicable Regulation contained no such obligation. However, by inviting third parties to submit observations, intended to assist it in its analysis, the Commission had placed itself in a situation where the citizens could reasonably expect a reaction from it: all the more so in this case, as LF had an interest in the decision by virtue of the fact that its members were possibly affected by it. The Commission's failure to give a reaction to LF had been, therefore, an instance of maladministration.

Given that this aspect of the case concerned procedures relating to specific events in the past, it was not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closed the case.

Further remarks

In a letter to the President of the Commission, which accompanied the Decision, the Ombudsman made, in summary, the following further remarks:

The Commission is always welcome to give its views on the admissibility of a complaint, whilst acknowledging that it is for the Ombudsman to decide the question. In this case, however, a fundamental misunderstanding should be corrected. The service responsible for drafting the Commission's replies to the Ombudsman in this case appeared to have assumed that "wrong application of the law" cannot be "maladministration". In fact, the opposite is true: it can never be good administration to fail to act in accordance with the law. The first and most essential task of the Ombudsman when conducting inquiries into possible instances of maladministration in the activities of a Community institution or body is to establish whether the institution concerned has acted lawfully. In carrying out this task, the Ombudsman is always mindful of the fact that the highest authority on the meaning and interpretation of Community law is the Court of Justice.

In other cases in which a complaint has expressly raised a question concerning the interpretation or application of the law, the Commission has supplied an opinion on the matter, which has been forwarded to the complainant. It is normal that the Commission should respond in this way and the Ombudsman trusts that it will continue to do so. The office of the European Ombudsman was set up in order to enhance relations between the Community institutions and bodies and European citizens. This is impossible if an institution does not give its opinion on all the issues presented by a complainant. In cases where the institution explains that it has acted correctly in accordance with the rules and principles that are binding upon it, the citizen is sometimes satisfied with the explanation, or at least has a better understanding of the institution's actions. More generally, it is always helpful for the Commission's opinions to explain its position on the legal elements in a case, in order to ensure that its views can be taken into account in the Ombudsman's inquiry.

The Ombudsman concluded by requesting the President of the Commission to ensure that responsible Commission services take these further remarks into account when preparing the Commission's replies to the Ombudsman.

COMMISSIONERS' SALARIES: REQUEST FOR INFORMATION

Decision on complaint 586/3.5.96/MCA/ES/JMA against the European Commission

The complaint

On behalf of the "Asociación Amigos de Benalmádena", Mrs A. lodged a complaint with the Ombudsman in April 1996, concerning the failure of the European Commission to reply to its requests for information on the salaries and other emoluments of two members of the Commission in 1993 and 1994.

The complainant stated that the Commission had failed to reply to two previous letters sent to its Madrid office, on 17 October and 17 December 1995 respectively. In these letters, she requested information on the income (salary plus allowances) earned in 1993 and 1994 by the Spanish members of the Commission, at the time, Messrs Marín and Matutes.

The inquiry

The Commission's opinion

The complaint was forwarded to the Commission. In its opinion, the Commission apologised for its failure to answer the original letters, and indicated that salaries for Commissioners are governed in all cases by Council Regulations No 422/67/EEC, No 5/67/Euratom of 25 July 1967, as amended on a number of occasions.

With regard to mission and travel expenses, it stated that the total amount paid to all Commissioners for this type of expenses in 1994 was ECU 1300000. In addition, Commissioners are entitled to the reimbursement of representation expenses, the corresponding sums being ECU 341000 in 1993 and ECU 335000 in 1994.

Finally, the Commission stated that all those sums were subject to the internal financial monitoring by the institution itself, and also by the external control of the Court of Auditors.

The complainant's observations

In her observations, Mrs A. stated that her requests were still unanswered. In her view, the Commission had merely referred to a Regulation which was unknown to her. Those comments also referred to a total amount of ECU 1300000 paid in expenses to all members of the Commission, but without any indication related to the two Commissioners mentioned in the request.

The Ombudsman's efforts to achieve a friendly solution

In accordance with Article 3(5) of the Statute and with a view of seeking a friendly solution to the case, the Ombudsman wrote again to the Commission. He referred to the fact that the reply given by the institution was still unsatisfactory for the complainant.

He also suggested that the Commission's answer would have to be reviewed in the light of the European Union's commitment towards transparency and public access to information. In view of those principles, he proposed that a satisfactory solution could be found if the Commission, after balancing the interests at stake, were to provide some clearer and more precise information, thereby justifying a clear conclusion as to the information which could be made available.

In its reply, the Commission indicated that it had tried to strike a balance between the need for transparency and the protection of privacy. In order to reach this compromise, it had disclosed information on salaries and other allowances related to the whole of the Commission rather than that concerning specifically two of its members.

Then, the Commission stated that its members' monthly salaries plus other allowances were last established by the Council on December 1996, and explained how they were calculated. As regards representation expenses, they were reimbursed after the invoice had been issued. They were reimbursed up to a maximum of ECU 11347 per year (for the Commissioner responsible for foreign affairs, the sum is ECU 17023). Officials who have to travel, in compliance with their duties, receive a reimbursement for travel expenses and daily subsistence allowances which are related to the country in which the mission takes place.

The reply of the Commission was forwarded to the complainant with an invitation to consider the solution proposed by the Commission. In the reply, the complainant expressed her satisfaction with the efforts undertaken by the European Ombudsman to find a friendly settlement of this matter. Nevertheless, she still believed that the reply of the Commission had not answered her questions clearly and specifically. In her view, the control of public expenditure is a paramount objective which should take precedence over any privacy right.

The Decision

1. Right to the Community's information

The requests for information sent by the complainant to the Commission in her letters of 17 October and 17 December 1995 raise questions relating to the right of all Community citizens to be informed on important aspects of the administrative workings of the Commission.

In order to weigh up the legal implications of this request, it is necessary to start out from the European Union's undertaking to make the workings of the Community institutions and bodies more transparent and more open to the public. This commitment was spelt out in the Final Act of the Treaty on European Union, which includes Declaration No 17 on the right of access to information. Similarly, it was reaffirmed in a number of European Councils, such as those at Birmingham and Edinburgh.

At present, there are only rules to foster greater public access to information as regards access to documents. In relation to the Commission, this institution adopted on 2 June 1993 communication 93/C 166/04 on transparency in the Community(19), and, on the basis of the guidelines set out in that text, on 8 February 1994 it adopted Decision 94/90/ECSC/EC/Euratom on public access to Commission documents(20). In the absence of more general rules concerning general information, existing rules on access to documents could provide an appropriate surrogate to decide on citizen's requests for information sent to the institutions.

2. Conflict between transparency and privacy rights

The Commission has stated in its comments that specific information on the salaries and other emoluments, mainly travel allowances, concerning individual members of the Commission could impinge