Procedure : 2010/2086(INI)
Document stages in plenary
Document selected : A7-0293/2010

Texts tabled :

A7-0293/2010

Debates :

PV 25/11/2010 - 4
CRE 25/11/2010 - 4

Votes :

PV 25/11/2010 - 8.4
Explanations of votes

Texts adopted :

P7_TA(2010)0436

REPORT     
PDF 173kWORD 91k
27 October 2010
PE 442.877v04-00 A7-0293/2010

on the Special Report by the European Ombudsman following his draft recommendation to the European Commission in complaint 676/2008RT

(2010/2086(INI))

Committee on Petitions

Rapporteur: Chrysoula Paliadeli

MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION
 EXPLANATORY STATEMENT
 RESULT OF FINAL VOTE IN COMMITTEE

MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION

on the Special Report by the European Ombudsman following his draft recommendation to the European Commission in complaint 676/2008RT

(2010/2086(INI))

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 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 (COM(2002)0141)(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 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 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 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 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 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 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 ...’.


EXPLANATORY STATEMENT

Introduction

Special reports are the European Ombudsman’s ultimate weapon. The Ombudsman’s decisions are not legally binding, and he therefore relies on persuasion, on the ability to convince through reasoned argument and, from time to time, on publicity and the force of public opinion. The very small number of special reports that the European Ombudsman had to present to the European Parliament (17 since 1995) is evidence of the co-operative approach adopted by the EU Institutions in the overwhelming majority of cases.

Part of the background to that co-operation, however, is the existence of the power to make a special report to the European Parliament. Especially when a draft recommendation is made, the knowledge that the next step could be a special report often helps to persuade the institution or body concerned to alter its position. Special reports should, therefore only be presented in relation to important matters, on which the Parliament could help persuade the institution or body concerned to alter its position.

As a political body, the European Parliament is sovereign in dealing with the Ombudsman’s special reports, as regards both its procedures and the substance of its approach and actions. When considering a special report, the Parliament always takes into account that the right to apply to the Ombudsman, alongside the right to petition the European Parliament, is a fundamental right of citizenship that is firmly enshrined in the Charter of Fundamental Rights, which now, under the Treaty of Lisbon, has legal value.

The complaint

In March 2007 a non-governmental organisation acting in the field of environmental protection, asked for access to certain documents under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents.

The documents related to meetings between the European Commission and car manufacturers at which the issue of the Commission’s approach to carbon dioxide emissions from cars was discussed.

In November 2007, the European Commission granted access to 15 out of 18 letters sent to the then Commissioner Günter Verheugen. However, in the case of 3 letters sent by the German car manufacturer Porsche, it refused access on the grounds that their disclosure would undermine the protection of the company’s commercial interests. The complainant then turned to the European Ombudsman. In September 2008, the Ombudsman’s services carried out an inspection of the letters at the Commission’s premises. On the basis of this inspection, the Ombudsman concluded on 27 October 2008 that the Commission had wrongly refused access to the three letters. He therefore made a draft recommendation to the Commission that it should grant access to these letters in their entirety, or consider partially disclosing them.

According to Article 3 (6) of the Statute laid down for the European Ombudsman by the European Parliament, the European Commission had three months in which to give a detailed opinion on his draft recommendation. The deadline for the Commission to respond was, therefore, 31 January 2009. The Commission did not reply and asked for an extension to this deadline on 30 January 2009. It subsequently asked for further extensions to this deadline on 23 February 2009, on 26 March 2009, on 29 April 2009, on 29 May 2009 and on 26 June 2009.

Having granted the European Commission all its requests for extensions to the original deadline, the Ombudsman wrote to the Commission on 3 July 2009 stating that it was unclear why the drafting of a detailed opinion was taking such a long time, that it required six extensions of an already generous deadline. The Commission responded on 17 July, stating that it was not in a position to give a substantive reply because it was still consulting with the third party (Porsche).

On 30 September 2009, 10 months after the draft recommendation, the European Commission informed the Ombudsman that it had decided to grant partial access to these letters and had created edited versions for the purpose. It also indicated its intention to inform Porsche of its decision. On 27 October 2009, the Commission explained that the decision to inform Porsche had been sent for translation into German and would be sent to the company in early November. On 9 November 2009, the European Ombudsman sent another letter to the Commission, in which he requested a copy of the notification letter sent to Porsche and asked to be informed about the conclusion of the procedure for granting access to these letters. On 4 December 2009, the Commission’s services informed the Ombudsman’s office by telephone that the notification letter would be sent shortly to Porsche.

Until the date of the submission of his Special Report to the European Parliament on 24 February 2010, the European Ombudsman had not been informed of either the notification letter, or of the act of granting access to the letters. Once the new Commission had taken office, and the Ombudsman had submitted his Special Report, the Commission did indeed grant access to the letters. This, however, occurred more than 15 months after the draft recommendation had been made rather than the three months prescribed by the European Parliament in the Ombudsman’s Statute and by Article 228 of the TFEU.

In its various communications on the matter, the European Commission explained that it could not comply with its obligation to reply to the draft recommendation because of ongoing consultations with Porsche concerning the proposed disclosure of the documents in question. The Commission justified the length of the said consultations by putting forward two arguments: firstly, that there was a prospect of achieving a positive outcome in the negotiations with Porsche as regards the proposed disclosure, and secondly, that there was a need to give Porsche a reasonable period of time to take legal action against the Commission’s decision to disclose the documents in question.

As regards the European Commission’s first argument, it has to be recalled, that in the framework of the consultations provided for in Regulation 1049/2001, the Commission must establish a deadline for the third party author of a document to reply. The Commission should certainly exercise this power in a way that enables it to abide by its own deadlines. As regards the Commission’s second argument, it must be noticed that the need to allow Porsche to exercise its legal rights cannot justify the Commission’s extraordinary delay in first replying to the draft recommendation and subsequently in carrying out its decision to inform Porsche of its intention to release the documents.

In this connection it must be recalled that the relevant case-law concerning the principle of sincere cooperation (Article 4, paragraph 3, Treaty on European Union), according to which the Union institutions are subject to the duty to cooperate in good faith in their relations with each other. This obligation is clearly stipulated by the new Article 13, paragraph 2 of the Treaty on European Union.

Further Information

According to Article 41 of the Charter of Fundamental Rights, 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.

Unfortunately, it is the experience of the Ombudsman that the Commission too often fails to respect the deadlines established by Regulation 1049/2001 for dealing with public access requests. Even worse is the Commission’s performance when citizens complain to the Ombudsman in access to documents cases.

Out of 22 such cases dealt with by the Ombudsman in 2009, the Commission respected the original deadline for reply to the complaint in only 4, i.e. less than one fifth. In the majority of cases (14 out of 22) there was a delay of more than 30 days. In more than a quarter of the total cases (6 out of 22), the delay was of 80 days or more.

On 4 May 2010, the Ombudsman attended a meeting of the Committee on Petitions and explained the special report. During his speech, he mentioned that there was another access to documents case (355/2007(TN)FOR) in which the Commission had delayed its detailed opinion on a draft recommendation three times. This is a complaint submitted by an NGO - the European Environmental Bureau. The Ombudsman made a draft recommendation in this case on 29 June 2009. The Commission should have sent its opinion on 31 October 2009. On 27 May 2010, the Commission announced that it needed until 31 July 2010 to send its detailed opinion because ‘an unclear legal situation still prevails’.

Conclusions

The fact that the Commission did indeed grant access to the letters in case 676/2008/RT after the Ombudsman submitted his special report should be considered a success for the Parliamentary process of supervising the work of the Commission through the operation of the Ombudsman’s inquiries.

Nevertheless the European Parliament can only conclude that, by delaying its reply to the draft recommendation for 15 months and by failing to implement its undertaking to notify Porsche of its intention to disclose, the European Commission infringed its obligation to cooperate with the European Ombudsman sincerely and in good faith, and that this attitude on the part of the Commission is detrimental not only to inter-institutional dialogue, but also to the public image of the EU.

In the course of his inquiry, the European Ombudsman established an instance of maladministration and gave the European Commission every possibility to remedy it. The Commission’s uncooperative attitude in this regard risks eroding citizens’ trust in the Commission and undermining the capacity of the European Ombudsman and the European Parliament to supervise the Commission in an adequate and effective way. As such, it runs counter to the very principle of the rule of law upon which the European Union is founded.

Furthermore, it is clear that the Commission too often incurs delays in responding to requests for access. It is substantially late in replying to the Ombudsman in the majority of access to documents cases and, in some cases, the delays are very lengthy. This situation creates a systemic problem. It deprives citizens of one of the key benefits that can expect from using their fundamental right to complain to the Ombudsman; that is to say, a quicker outcome than is available by going to Court.

The European Parliament therefore requires that the European Commission acknowledge that the excessive delays in responding to the European Ombudsman in this case constitute a breach of its duty of sincere cooperation as envisaged by the TEU and that it gives an undertaking that it will respect the duty of sincere cooperation with the European Ombudsman in the future. Should the Commission fail to give such an undertaking and/or persist in its uncooperative practices towards Ombudsman, Parliament may sanction the Commission. Such sanctions may include, inter alia, the placing of a portion of the Commission’s budget for administrative expenditure into reserve.


RESULT OF FINAL VOTE IN COMMITTEE

Date adopted

25.10.2010

 

 

 

Result of final vote

+:

–:

0:

10

0

0

Members present for the final vote

Margrete Auken, Victor Boştinaru, Pascale Gruny, Peter Jahr, Mariya Nedelcheva, Chrysoula Paliadeli, Nikolaos Salavrakos, Jarosław Leszek Wałęsa, Angelika Werthmann

Substitute(s) present for the final vote

Axel Voss

Last updated: 8 November 2010Legal notice