EN Official Journal of the European Union CE 99/43

Thursday 25 November 2010

Special Report from the European Ombudsman to the European Parliament following the draft recommendation to the European Commission in Complaint 676/2008/RT (According to Rule 205(2), 1st part)

P7_TA(2010)0436

European Parliament resolution of 25 November 2010 on the Special Report by the European Ombudsman following his draft recommendation to the European Commission in complaint 676/2008RT (2010/2086(INI))

2012/C 99 E/09

The European Parliament,

— having regard to the Special Report from the European Ombudsman to the European Parliament submitted on 24 February 2010,

— having regard to Article 228(1), second subparagraph, of the Treaty on the Functioning of the European Union (ex Article 195 TEC),

— having regard to Articles 41(1), 42, and 43 of the Charter of Fundamental Rights of the European Union,

— having regard to Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (1), as last amended by Decision 2008/587/EC, Euratom of the European Parliament of 18 June 2008 (2),

— having regard to the Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (3),

— having regard to Rule 205(2), first sentence, of its Rules of Procedure,

— having regard to the report of the Committee on Petitions (A7-0293/2010),

A. whereas Article 228 of the Treaty on the Functioning of the European Union empowers the European Ombudsman to receive complaints from any citizen of the Union concerning instances of maladministration in the activities of the Union institutions or bodies,

B. whereas complaints submitted by EU citizens constitute an important source of information on possible infringements of EU law,

C. whereas, according to Article 41 of the Charter of Fundamental Rights of the European Union, ‘Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’,

D. whereas, on 1 March 2007, a non-governmental organisation acting in the field of environmental protection asked the Commission for access to information and documents held by the Directorate-General for Enterprise and Industry and the former Vice-President of the Commission responsible for Enterprise and Industry, relating to meetings between the Commission and representatives of car manufacturers at which the issue of the Commission’s approach to carbon dioxide emissions from cars had been discussed,

E. whereas the Commission granted access to 15 out of 18 letters sent to then-Commissioner Günter Verheugen, but refused access to three letters sent by the German car manufacturer Porsche on the grounds that their disclosure would undermine protection of the company’s commercial interests,

F. whereas Article 1(a) of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (4) provides that the aim of this regulation is to ensure the widest possible access to documents held by the Council, the European Parliament and the Commission, and whereas, according to the established case-law of the Court of Justice of the European Union, any exceptions to this principle must be interpreted strictly,

G. whereas the Commission refused to grant the complainant access to the relevant letters from Porsche AG on the basis of the first paragraph of Article 4(2) of Regulation (EC) No 1049/2001, which provides that ‘the institutions shall refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property …’,

H. whereas the letters in question were sent by Porsche AG in the context of the Commission’s consultation of key stakeholders concerning the review of the Community strategy to reduce carbon dioxide emissions from passenger cars, whereas it was consequently likely that the three letters contained information on Porsche AG’s business relations, and whereas the Commission could therefore have regarded them as falling within the scope of the exception laid down in Article 4(2), first paragraph, of Regulation (EC) No 1049/2001,

I. whereas the Ombudsman’s services inspected the three letters from Porsche AG as well as an exchange of e-mails between the Commission and Porsche in which the Commission informed Porsche that it intended not to disclose the three letters, and whereas the Ombudsman, on the basis of the inspection, concluded that the Commission had wrongly refused full access to the letters from Porsche AG under Article 4(2), first paragraph, and partial access under Article 4(6) of Regulation (EC) No 1049/2001 (5), and whereas this was an instance of maladministration,

J. whereas, on 27 October 2008, the Ombudsman made a draft recommendation to the Commission setting out the details of his factual and legal analysis, in which he stated that the Commission should grant access to the three letters sent by Porsche AG to the former Vice-President, Günter Verheugen, in their entirety or consider partially disclosing them,

K. whereas the Ombudsman, on the basis of Article 195 EC (now Article 228 TFEU), asked the Commission to give a detailed opinion within three months, that is, by 31 January 2009,

L. whereas the Commission did not give its opinion within the three-month deadline provided for in Article 228 TFEU, but instead requested six extensions of the deadline for submitting its detailed opinion on the Ombudsman’s draft recommendation, and whereas, in July and again in September 2009, the Ombudsman informed the Commission Secretariat of his intention to present a Special Report to Parliament if he did not receive an answer to his draft recommendation,

M. whereas the new Commission, once it had had taken office, did indeed grant access to the letters, but whereas this occurred more than 15 months after the draft recommendation had been issued rather than the three months stipulated in the Ombudsman’s Statute and in Article 228 TFEU,

N. whereas the Commission, by delaying its reply to the draft recommendation for 15 months, breached its obligation to cooperate with the Ombudsman sincerely and in good faith during his inquiry into case 676/2008/RT, and whereas this is detrimental not only to interinstitutional dialogue, but also to the EU’s public image,

O. whereas the Ombudsman has identified delays by the Commission in a further case involving access to documents (355/2007(TN)FOR), in which the Commission should have submitted its detailed opinion to the Ombudsman’s draft recommendation by 31 October 2009, but has still not done so to date,

P. whereas the Commission met the original deadlines for replying to complaints in only four of the 22 cases involving access to documents dealt with by the Ombudsman in 2009; whereas in 14 of these 22 cases it submitted its reply more than 30 days late, and in six cases it submitted its reply at least 80 days late,

Q. whereas Parliament’s responsibility as the EU’s sole elected body is to safeguard and protect the independence of the European Ombudsman in the conduct of his duties towards EU citizens and to monitor the implementation of his recommendations,

1. Endorses the European Ombudsman’s critical remarks and his recommendation to the Commission in relation to complaint 676/2008/RT;

2. Recognises that the excessive delays in responding to the Ombudsman in this case constitute a breach of the Commission’s duty of sincere cooperation as envisaged in the Treaty;

3. Is very concerned at the general practice of delay and obstruction by the Commission in respect of the Ombudsman’s inquiries in cases involving access to documents;

4. Recalls that, in the context of the consultations provided for in Article 4(4) of Regulation (EC) No 1049/2001, the Commission must establish a deadline for the third-party author of a document to reply, and underlines that the Commission should exercise this power in a way that enables it to abide by its own deadlines (6);

5. Recalls the relevant case-law concerning the principle of sincere cooperation (Article 4(3) TEU), according to which the Union institutions have a duty to cooperate in good faith in their relations with each other, and notes that this obligation is clearly stipulated in the new Article 13(2) TEU;

6. Considers that the Commission’s uncooperative attitude in this and other cases risks eroding citizens’ trust in the Commission and undermining the ability of the European Ombudsman and the European Parliament to adequately and effectively supervise the Commission, and that it as such, runs counter to the very principle of the rule of law upon which the European Union is founded;

7. Demands that the Commission give an undertaking to the European Parliament that it will fulfil its duty of sincere cooperation with the European Ombudsman in future;

8. Considers that in the case that the Commission fails to give such an undertaking and/or persists in its uncooperative practices towards the Ombudsman, Parliament may sanction the Commission, and that such sanctions may include inter alia placing a portion of the Commission’s budget for administrative expenditure into reserve;

9. Instructs its President to forward this resolution to the Council, the Commission and the European Ombudsman.

(1) OJ L 113, 4.5.1994, p. 15.

(2) OJ L 189, 17.7.2008, p. 25.

(3) OJ C 244, 10.10.2002, p. 5.

(4) OJ L 145, 31.5.2001, p. 43.

(5) Article 4(6) of Regulation (EC) No 1049/2001 reads as follows: ‘If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.’

(6) Article 5(5) of the Detailed rules for the application of Regulation (EC) No 1049/2001, annexed to Commission decision 2001/937/EC, provides that: ‘The third-party author consulted shall have a deadline for reply which shall be no shorter than five working days but must enable the Commission to abide by its own deadlines for reply …’.