OCM(2018)8080 - 09/04/2018
Directorate A Investigations I
Ms Margarida da SILVA
Director
CEO
Rue d'Edimbourg 26,
Ixelles 1050
Via e-mail
ask+request-5256-
xxxxxxxx@xxxxxxxx.xxx
Brussels
olaf.c.4(2018)9770
Subject:
Your application for public access to documents
Case No
OC/2016/0055/A1
Dear Ms Silva,
We refer to your request of 16 March 2018, registered in OLAF on 19 March 2018, under
reference OCM(2018)6520, by which you submitted an application for access to
documents under Regulation (EC) No 1049/20011 regarding public access to European
Parliament, Council and Commission documents.
You requested access to the "
documents which relate to any investigation into former
President Jose Manuel Barroso's and Goldman Sachs International".
1.
Preliminary remarks
OLAF wishes to clarify from the outset that OLAF is legally bound to treat all information it
obtains during its investigations as confidential and subject to professional secrecy, in
particular pursuant to Article 339 of the Treaty on the functioning of the European Union,
Article 10 of Regulation (EU, Euratom) No 883/2003 and Article 17 of the Staff Regulations.
However, the purpose of Regulation 1049/2001 is to give access to documents to the public
at large. Any document disclosed to an individual under this Regulation then becomes
automatically available to any other member of the public whenever there is a subsequent
request. Consequently, your attention is drawn to the fact that documents disclosed under
this Regulation enter the public domain.
2.
Assessment of the documents under Regulation (EC)
1049/2001
-
relevant applicable exceptions – presumption of non-accessibility
Having carefully considered all circumstances, OLAF regrets to inform you that your
application cannot be granted, as disclosure is prevented by exceptions to the right of public
access laid down in Article 4 of Regulation (EC) No 1049/2001 based on the following
considerations.
OLAF's position is based on the most recent evolution of the case-law in the field of access to
documents and as such is applicable without any discrimination to all applicants (journalists,
members of the general public etc).
1
OJ L145, 31.05.2001, page 43.
OLAF Rue Joseph II, 30 B-1049 Brussels (Belgium) Tel: +32 (0)2 299 11 11 Web: http://ec.europa.eu/anti_fraud
OCM(2018)8080 - 09/04/2018
The documents which you seek to obtain are part of an OLAF investigation file and therefore
covered by the exceptions under Article 4(2), third indent of Regulation 1049/2001 which
stipulates that the institutions shall refuse access to a document where disclosure would
undermine the protection of the purpose of inspections, investigations and audits, as well as
the protection of the decision-making process as referred to Article 4(3) second sentence
of the Regulation.
The General Court recognised in recent case-law2 a general presumption of non-
accessibility for documents in OLAF case files. It considers that the disclosure to the public
under Regulation 1049/2001 of documents related to OLAF investigations could
fundamentally undermine the objectives of the investigative activities, as well as the
decision making process, both now and in the future. This implies that the disclosure of
the requested documents can be refused without carrying out a concrete, individual
examination of those documents in order to assess whether their disclosure may seriously
undermine the protected interest, and that no partial access needs to be considered (see
below).
The presumption is based on the consideration that, to determine the scope of Regulation
1049/2001, account must be taken of relevant sectoral rules governing the administrative
procedure under which the documents requested under Regulation 1049/2001 were
gathered3, in the case at hand, Regulation 883/2013, which governs OLAF's administrative
activity provides for the obligation of confidentiality with regard to all information gathered
during investigations.
The protection of confidentiality of information in the legal framework applicable to OLAF
investigations aims, on the one hand, at safeguarding the successful conduct of an
investigation in the public interest and, on the other hand, at safeguarding the legitimate
interests of the individuals, so that the information they provide is used only for the
purposes of the investigation.
The protection of confidentiality extends to closed cases4. In addition, having regard to the
nature of the information processed in the context of OLAF investigations, the publication
of the sensitive information contained in the OLAF case file is likely to harm the protection
of personal data regardless of whether an investigation is pending or closed. The prospect
of such publication after an investigation is closed runs the risk of adversely affecting the
willingness of informants and of those who hold relevant information to cooperate with
OLAF when such a procedure is pending, and that could seriously compromise the
effectiveness of OLAF’s investigative activities. For these reasons, the cooperation of those
who hold relevant information requires the increased protection of the information
obtained, according to the conditions established by the Court and by virtue of the
protection of the purpose of the investigation (Article 4 (2) third indent of Regulation (EC)
No 1049/2001). Furthermore, public disclosure of selection/investigation documents could
negatively affect OLAF's future cooperation with national administrative or judicial
authorities and vice versa in the context of its investigations.5
In view of the foregoing, the documents in OLAF's investigation files fall under the
presumption of non-accessibility as documents containing information collected during an
OLAF investigation and subject to confidentiality and professional secrecy rules.
Consequently, the documents requested are exempt, in principle and in full, from
disclosure to the public unless the applicant demonstrates that the presumption is not
applicable because an overriding public interest justifies the disclosure of the requested
2
Judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242,
paragraph 162.
3
Judgment Court of Justice of 28 June 2012,
Agrofert Holding v
Commission, C-477/10 P,
EU:C:2012:394, paragraphs 50-59; judgment of the Court of Justice of 29 June 2010,
Commission v
Technische Glaswerke Ilmenau, C-139/07 P, EU:C:2010:376, paragraph 55 ff..
4
Judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242,
paragraphs 150 to 164.
5
Judgment of the General Court of 12 May 2015,
UAHE v Commission, T-623/13, (EU:T:2015:268),
paragraphs 72-79.
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OCM(2018)8080 - 09/04/2018
documents.6
OLAF notes that the general presumption that the documents cannot be disclosed
pursuant to Article 4(2) third indent and 4(3) of Regulation (EC) No 1049/2001 is without
prejudice to the application of other relevant exceptions referred to in Article 4 of that
Regulation to certain parts of the requested documents. However, in the present
circumstances OLAF has not considered it necessary to analyse the applicability of those
exceptions.
3.
Partial Access
OLAF has examined the possibility of granting partial access to the requested documents
in accordance with Article 4(6) of Regulation 1049/2001.
Partial access is not possible, given that the information the documents contain falls
entirely under the general presumption of applicability of Article 4(2), third indent of
Regulation 1049/2001 in the context of inspections and audits.
4.
Overriding public interest in disclosure
The exceptions laid down in Article 4(2) and 4(3) of Regulation 1049/2001 apply unless
there is an overriding public interest in disclosure of the documents. For such an interest
to exist, it, firstly, has to be a public interest and, secondly, it has to outweigh the interest
protected by the exception to the right of access.
OLAF understands the importance of transparency of the functioning of the EU institutions
and particularly of the European Commission. However, given the nature of the
investigations conducted by OLAF, and the confidential nature of information collected,
such as sources of information, content of case files and reputation of natural persons,
OLAF considers there are no elements that would show the existence of an overriding
public interest in disclosing the requested documents.
5.
Confirmatory application
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting OLAF to review this position. Pursuant to Article 4 of
Commission Decision 2001/937/EC, ECSC, Euratom, such a confirmatory application should
be addressed within 15 working days upon receipt of this letter to the Director General of
OLAF.
Any confirmatory application to OLAF should be sent to the following address:
Mr N. J. ILETT
Director General (acting)
European Anti-Fraud Office (OLAF)
European Commission
B-1049 BRUXELLES
BELGIUM
Your attention is drawn to the statement concerning the transfer of personal data below.
Signed Electronically
on 09/04/2018 at 17:04 by
Dominik Berto Wilhelm Schnichels [DIRECTOR]
6
Ibid., paragraph 91.
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OCM(2018)8080 - 09/04/2018
Privacy statement
Pursuant to Article 11 of Regulation (EC) 45/2001 on the protection of individuals with regard to the processing
of personal data by the Community institutions and bodies and on the free movement of such data, please be
informed that your personal data are stored in OLAF’s electronic and paper files concerning this matter for the
purposes of ensuring conformity with the requirements of Regulation 1049/2001.
The categories of your personal data being processed are identification and contact data (name, address, e-mail,
telephone, fax) and any other personal data provided by or to you in relation to your request. Officials within
OLAF and other Commission services responsible for dealing with requests for access to documents have access
to your personal data.
All documentation and communications concerning OLAF investigations are stored in the relevant OLAF
investigation files and are retained for a maximum of 15 years. Thus personal data contained in requests for
public access to documents concerning OLAF investigations are retained for a maximum of 15 years.
You have the right to access those data and to correct and complete them. On request and within three months
from its receipt, you may obtain information concerning your personal data which we have processed. Any such
request should be addressed to the Controller (xxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx).
You may lodge a complaint concerning the processing of your personal data with the European Data Protection
Supervisor (xxxx@xxxx.xxxxxx.xx) at any time.
The complete privacy statements for this and all other OLAF personal data processing operations are available at
http://ec.europa.eu/anti_fraud.
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