Decision of the European Ombudsman in complaint 1871/2014/EIS concerning the European Commission's handling of a request for access to documents following a fraud investigation

In 2006 the complainant, a German company, was successful in a tender procedure for services to help to develop the small and medium sized enterprise sector in Syria. In 2009, the European Anti-Fraud Office (OLAF) opened an investigation into the company. OLAF found that there was evidence that the company had wrongly sub-contracted parts of the contract and, as a result, breached its contractual obligations. These findings led the European Commission to impose financial penalties on the company. The company then sought access from the Commission to its file on the matter and was granted partial access. The company protested that, as it had not been given complete access to the final report of OLAF and certain other documents, it could not prepare a proper defence to the allegations against it.

The Ombudsman inquired into the issue and concluded that the Commission took an incorrect approach to the access request; it should have dealt with the request under the relevant provisions concerning access to one's own file under the Charter of Fundamental Rights of the European Union and not under Regulation 1049/2001 on public access to documents. While the Ombudsman found that the Commission's error in this case made no material difference to the complainant's right of defence, she found nevertheless that the Commission's error constituted maladministration.