EU: Statewatch wins complaint against the European Commission

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European Ombudsman declares maladministration for Commission's failure to produce its 2005 annual report on access to documents in time and found it "especially deplorable" as these reports are "a key mechanism for accountability"

6 November 2007: Statewatch wins complaint against the European Commission over its failure to produce its annual report of access to documents (under Regulation 1049/2002) for 2005 in the calendar year 2006.

The European Ombudsman has declared this a case of maladministration by the Commission and further observes that:

"In the Ombudsman’s view, the reasons given by the Commission to explain its failure, which refer to administrative and organisational constraints, do not show that there was an objective impossibility for the Commission to comply with its legal obligation (ultra posse nemo obligatur)" and

"The Ombudsman considers that the instance of maladministration revealed by the present inquiry is especially deplorable since the publication of reports is a key mechanism of accountability to, and communication with, European citizens. The Commission should set a good example to the many new Community Agencies which have recently been established by giving high priority in future to the timely publication of reports."

The complaint and response: Statewatch complained that the Commission had failed to produce its annual report on access to documents under Regulation (1049/2001) for the year 2005 in the following year, 2006, as required.

The Commission's defence was that the priority given to launching the public consultation on the review of Regulation 1049/2001 including the drafting, adoption and publication of the Green Paper and that there had been a major turnover of staff.

Statewatch responded that the legal obligation under the Regulation overrode the preparation of the Green Paper (which was optional) and that lack of staff should be referred to the Internal Audit Service.

Tony Bunyan, Statewatch editor, comments:

"We welcome the European Ombudsman's Decision that the Commission's failure to produce its 2005 annual report in time was a case of maladministration.

The Commission is the custodian of EU law and as such has an absolute duty to carry out its obligations under the Regulation. Not to do so sets a very bad example to the myriad of agencies and bodies which have been, or will be, set up across the EU.

It is a fundamental democratic standard that people are regularly informed of the activities of institutions and other bodies so that they can be held to account."

Statewatch has another complaint lodged against the Commission: its failure to provide a proper public register of documents (see Case 1 below)

In October 2006 Statewatch lodged a complaint against the European Commission for its failure to maintain a proper public register of documents under Article 11 of the Regulation (1040/2001).

The three EU institutions, including the Commission, were obliged to establish a public register of documents by June 2002. In which: "references to documents shall be recorded in the register without delay" and each "document" shall include a reference number and its subject matter.

The complaint said that:

"the Commission’s register of documents does not fulfil the requirements of Regulation 1049/2001 because it contains only a fraction of the documents produced and received by the Commission in the course of its activities."

Statewatch responded to the Commission's observations on 27 June which were sent to them on 5 July 2007 together with a series of additional questions from the Ombudsman. The Commission was given until 15 September to reply. It then asked for an extension to 15 October and has now asked for an extension until 15 December 2007.


Statewatch has previously won eight complaints against the Council of the European Union (the governments) taken to the European Ombudsman on access to documents.

In 2001 the European Voice newspaper, selected Tony Bunyan, Statewatch editor, as one of the "EV50", one of the the fifty most influential people in the European Union over the year for Statewatch's work on access to documents in the EU. Tony is the author of "Secrecy and openness in the EU" (Kogan Page, 1999, pbk) which is also available as an: Online version (link)

Reporting on openness and secrecy in the EU since 1992:
See Statewatch's Observatory FOI in EU - Freedom of Information in the EU (link)


Case 2:

State of play: Statewatch wins case against the Commission

- The European Ombudsman's Decision and Press release (6 November 2007, pdfs)

- 12 September 2007:Statewatch response to the Commission's reply (pdf)

- 26 June 2007: Commission response to the complaint (pdf)

- 13 April 2007: Statewatch response to letter of 28 March 2007 (pdf)

- 28 March 2007: European Ombudsman's letter to Statewatch (pdf)

- 26 February 2007: Statewatch lodges complaint about failure to produce 2005 annual report on access to documents (pdf)

Case 1:

State of play: The response from the Commission is awaited both to the Ombudsman's letter of 5 July and Statewatch's response on 27 June 2007

- 25 October 2007: Letter from the European Ombudsman stating that the Commission have asked for a further delay in responding to their letter of 5 July below

- 5 July 2007: Letter from the European Ombudsman states that the further complaint on Article 12 cannot be taken up in this context but attaches a three-page letter from the Ombudsman to the Commission seeking clarification of their position

- 27 June 2007: Statewatch responds to the Commission's letter

- 22 May 2007: after six months the Commission sends in its response to the complaint

- 11 October 2006: Statewatch lodges complaint against the Commission for its failure to maintain a proper public register of documents (Article 11 of 1049/2001)

Press release - 19 April 2007: Statewatch lodges two complaints against the European Commission with the European Ombudsman (pdf)

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