Memorandum of Understanding between the European Ombudsman and the European Data Protection Supervisor
Date: 2007-02-07
Institutions: European Data Protection Supervisor, European Ombudsman
Subjects: European Data Protection Supervisor, European Ombudsman, access to information, data protection, exchange of information, interinstitutional cooperation (EU), provision of documents

7.2.2007

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Official Journal of the European Union

C 27/21

EUROPEAN OMBUDSMAN
EUROPEAN DATA PROTECTION SUPERVISOR

MEMORANDUM OF UNDERSTANDING

between the European Ombudsman and the European Data Protection Supervisor

(2007/C 27/07)

Working arrangements for constructive co-operation

1. Background and objectives of the present Memorandum of Understanding

Since 1995, the European Ombudsman (EO) has exercised the power to conduct inquiries concerning
instances of maladministration in the activities of the Community institutions or bodies, with the exception
of the Court of Justice and Court of First Instance acting in their judicial role. Inquiries may be conducted
on the EO's own initiative, or following a complaint from a natural or legal person.

Since 2004, the European Data Protection Supervisor (EDPS) has performed his task of monitoring and
ensuring that, with respect to the processing of personal data, the fundamental rights and freedoms of
natural persons, and in particular their right to privacy, are respected by the Community institutions and
bodies. The powers of the EDPS include conducting inquiries either on his own initiative, or following a
complaint from a data subject.

On the basis of their experience and co-operation to date, the EO and the EDPS consider it useful to make
provision for cases that give rise, or could give rise, to complaints to both authorities. The purpose of the
present Memorandum of Understanding is to set out flexible working arrangements in order to avoid unne-
cessary duplication of procedures and, as far as possible, diverging interpretations in such cases.

The common objective of the EO and the EDPS is to achieve the best use of Community resources and
favour a consistent approach to legal and administrative aspects of data protection, thereby promoting the
rights and interest of citizens and complainants. The present Memorandum provides a basis for constructive
co-operation in pursuit of this objective. It is not intended to create legal rights or obligations.

The present Memorandum does not concern the powers of the EO and EDPS to inquire into each other's
activities.

2. Towards constructive co-operation: working arrangements

The present Memorandum of Understanding is based on the following points of agreement between the EO
and the EDPS:

I. The concept of maladministration includes failure to comply with Community law on data protection.

II. The EDPS has special expertise in the field of data protection and is the specialised authority with regard
to the supervision of compliance by Community institutions and bodies with Community law on data
protection.

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III. Where complaints could be dealt with by either the EO or the EDPS, complainants may choose the
authority to which to address their complaint and should receive adequate information on which to base
their choice.

IV. Unnecessary duplication of procedures should be avoided, as far as possible.

V. Diverging approaches to legal and administrative aspects of data protection should be avoided, as far as

possible.

VI. The exchange of information between the EO and EDPS is subject to respect for the requirements of

confidentiality applicable to their activities.

On the basis of the above points and the experience gained through co-operation so far, the EO and EDPS
adopt the following working arrangements.

A. Information for the applicant when lodging a complaint

— The EO intends to inform complainants, when appropriate, of the special expertise of the EDPS as
mentioned under II above and of the conditions under which complaints concerning the processing of
personal data by Community Institutions and bodies may be lodged with the EDPS.

— In particular, the above information will be given where a complaint into which the EO could open an
inquiry relates exclusively or predominantly to data protection, so as to enable the complainant to
decide whether he wishes to turn instead to the EDPS before the EO opens an inquiry.

— In those cases, the EO intends to advise the complainant on the possibility to file his complaint with the
EDPS. The EO would also facilitate the transfer of such a complaint to the EDPS, if requested to do so by
the complainant before the opening of an inquiry.

— The EDPS intends to inform complainants, when appropriate, that complaints concerning maladminis-

tration in the activities of Community Institutions and bodies may be lodged with the EO.

— Where he considers it appropriate to do so, the EDPS would also seek to facilitate the transfer of a

complaint to the EO, if requested to do so by the complainant.

— Both authorities envisage informing complainants, when appropriate, that information in the case file

could be sent to the other authority.

B. Avoiding duplication of procedures

— Neither authority envisages opening an inquiry if the other authority is dealing, or has dealt, with what
is essentially the same complaint, unless the complainant presents significant new evidence in a case
where the other authority has already concluded its inquiry. Both authorities intend to inform each other
when they decline to open an inquiry for this reason and declare their willingness to provide informa-
tion to facilitate each other's decision-making in this regard.

— The EO intends to inform the EDPS whenever he opens an inquiry that involves an issue of data protec-
tion. In case the EDPS is already investigating the matter, both authorities declare their intention to
discuss how best to avoid unnecessary duplication of procedures and diverging interpretations.

— If the EO and the EDPS become aware of the fact that they are both dealing with complaints arising

from the same factual circumstances, they will endeavour to keep each other informed.

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C. Avoiding diverging interpretations

— In cases where the text of Regulation No 45/2001 (1) and the existing case law of the Court of Justice
leave room for divergent views as to the correct interpretation and application of data protection rules,
the EO envisages consulting the EDPS, unless the latter's views on the question are already known. The
EDPS expresses his intention to answer within the required time-limits. When deciding upon a case, the
EO envisages taking the reply of the EDPS into account.

— The EO declares his intention to inform the EDPS of the findings of his inquiries, insofar as they involve

significant issues of data protection.

— The EDPS declares his intention to inform the EO of the findings of his inquiries, insofar as he considers

that they could be relevant to the EO.

D. Access to documents and information

— The EO and EDPS note the following as regards possible data protection aspects of complaints

concerning access to documents and information:

— Regulation No 45/2001 provides for each data subject to have certain rights of access to data related to
him or herself (2). The EDPS is competent to deal with complaints from data subjects about failure to
comply with that duty.

— Cases concerning the refusal of access to information about another person, or cases concerning the
complainant's access to information or documents relating to him or herself that are not based on Regu-
lation No 45/2001 (for example, cases following refusal of an application under Regulation No
1049/2001 (3)) fall within the competence of the EO. In the latter cases, the EO intends to inform the
complainant about the rights under Regulation No 45/2001, in so far as this is likely to be useful.

— The EO and EDPS declare that parts A, B and C above also apply to complaints concerning access to

documents and information.

E. Implementation

— Both authorities declare their intention to meet regularly, at least once a year, in order to exchange views
on the practical implementation of the working arrangements set out in the present Memorandum and
to discuss possible improvements.

Done at Brussels, 30 November 2006

P. Nikiforos DIAMANDOUROS

European Ombudsman

Peter HUSTINX

European Data Protection Supervisor

(1) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of
individuals with regard to the processing of personal data by Community institutions and bodies and on the free movement
of such data, OJ L 8, 12.1.2001, p. 1.

(2) Article 13.
(3) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to

European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43.