EUROPEAN COMMISSION
Brussels, 12.8.2011
COM(2011) 492 final
REPORT FROM THE COMMISSION
on the application in 2010 of Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents
REPORT FROM THE COMMISSION
on the application in 2010 of Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents
FOREWORD
This report, drawn up pursuant to Article 17(1) of Regulation (EC) No 1049/2001 regarding
public access to European Parliament, Council and Commission documents1, covers the year
2010 and is based on statistical data which are summarised in the annex.
These statistics reflect the number of applications and not of requested documents. In practice,
applications may cover a single document or entire files concerning a specific procedure.
Applications for access to documents which were publicly accessible at the time of the
request, are not included.
1.
REVISION OF REGULATION (EC) NO 1049/2001
1.1.
The proposal for a recast of the Regulation, submitted by the Commission on 30
April 2008, is still at first reading. The Parliament voted a report with amendments
on 11 March 2009 but postponed the vote on the legislative resolution. After the June
2009 elections, the new Parliament has resumed work on the Commission proposal.
The committees for Constitutional Affairs (AFCO) and for Petitions (PETI) adopted
their opinions on 30 November 2010 and 1 December 2010 respectively. The Civil
Liberties committee (LIBE) has not yet voted on a new draft report. In the Council,
the proposal has been examined at the working group level.
1.2.
Following the entry into force of the Treaty of Lisbon on 1 December 2009, the
Commission has submitted on 21 March 2011 a new proposal with a view to
adapting Regulation 1049/2001 to the requirements of the Treaty of Lisbon. This
proposal aims at extending the institutional scope of the Regulation to all the
European Union institutions, bodies, offices and agencies, with some restrictions as
regards the European Court of Justice, the European Central Bank and the European
Investment Bank, in accordance with Article 15(3) of the consolidated version of the
Treaty on the functioning of the European Union.
2.
REGISTERS AND INTERNET SITES
2.1.
In 2010, 18661 new documents were added to the register of Commission documents
(see table in annex).
2.2.
According to Article 17 (1) of Regulation 1049/2001 the Commission has to provide
in its annual reports the number of documents in its possession which are “sensitive”
1
OJ L 145, 31.5.2001, p. 43
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in the meaning of Article 9(1) of the Regulation2 and have therefore not been
recorded in the register. The Commission's public register covers documents of the
COM, C, OJ, PV and SEC series. In 2010 no sensitive documents were created or
received by the Commission, that would fall within one of these categories of
documents.
2.3.
The table below shows the statistics for 2010 on consultation of the Openness and
Access to Documents website on EUROPA.
Number of visitors
Number of sessions
Pages viewed
Total
48.557
61.308
452.695
Monthly
4046
5109
37725
average
3.
COOPERATION WITH THE OTHER INSTITUTIONS SUBJECT TO THE REGULATION
The inter-institutional committee set up pursuant to Art. 15(2) of the Regulation was
not convened during 2010. The three institutions (European Parliament, Council and
Commission) maintained regular contacts at the administrative level with a view to
ensure a consistent application of the Regulation.
4.
ANALYSIS OF ACCESS APPLICATIONS
4.1.
2010 has seen a significant increase of the number of
initial applications made
under Regulation 1049/2001 (6127 applications compared with 5055 in 2009, i.e
21% more).
4.2.
The number of substantive decisions on
confirmatory applications issued during
2010 remained stable: 122 decisions of substance in 2010 against 120 in 2009. The
total number of responses to confirmatory applications was 152. The additional 30
cases have been closed without a formal decision under Regulation 1049/2001. They
concern either applications which were devoid of purpose, or requests which were
handled under another, more appropriate legal basis, e.g. under Regulation 45/2001
on personal data protection as regards requests for access to the applicant's own
personal data. The number of confirmatory applications received increased from 140
in 2009 to 181 in 2010. The difference between the number of confirmatory
applications received and the number of decisions issued is reflected in the number
of cases pending at the end of the year (68).
4.3.
Competition policy comes first on the list of domains of interest with 9.07% of initial
applications, followed closely by other major EU policy areas, such as home and
2
"Documents originating from the institutions or the agencies established by them, from Member States,
third countries or International Organisations, classified as "TRÈS SECRET/TOP SECRET",
"SECRET" or "CONFIDENTIEL" in accordance with the rules of the institution concerned, which
protect essential interests of the European Union or of one or more of its Member States in the areas
covered by Article 4(1)(a), notably public security, defence and military matters" (Article 9(1)).
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justice affairs, transport and energy, the internal market, taxation and customs union,
health and consumer protection, environment and enterprise policy.
4.4.
The main categories of applicants remain the academic world, accounting for 23.24%
of initial applications, law firms with 10.69 % and civil society (NGO's, interest
groups) with 8.18% of the total number of applications. For 32.68 % of the
applications, the socio-professional profile is undefined.
4.5.
The geographical breakdown of initial applications also remained very similar to
previous years. However, whereas for obvious reasons the largest proportion of
applications, namely 17.95%, came from persons or bodies established in Belgium,
an almost equal proportion of applications (16.62%) originated from Germany. None
of the other Member States, exceeded 10% of applications, the largest numbers
coming from the highly-populated Member States, i.e. France, Italy, Spain, the
United Kingdom and the Netherlands, which together accounted for 36.45% of the
applications. The share of applications from the new Member States slightly
increased with 4.23% of applications originating from the Czech Republic and 2.76%
from Poland.
5.
APPLICATION OF EXCEPTIONS TO THE RIGHT OF ACCESS
5.1.
The percentage of initial applications which were fully granted remained in 2010
above 80% (82,16%), while partial access was granted in 5,37% of initial
applications. In 82.16% of cases (compared with 84.23% in 2009) the documents
were disclosed in full, while in 5.37% of cases (compared with 4.11% in 2009)
partial access was granted. This means that as in 2009, the percentage of applications
that were refused in the first instance in full (for various reasons) stabilised around
12%.
5.2.
After a decrease in 2009, the percentage of decisions confirming the initial position
show a return to a level comparable to the one of 2008 (50% in 2010, against 48.08%
in 2008 and only 22.50% in 2009).
Also the percentage of cases in which access was granted in full after an initial
refusal returned to a level similar to 2008 (15.57% in 2010 against 50% in 2009 and
18.59% in 2008). On the other hand, the percentage of cases in which partial access
was granted after an initial refusal, increased noticeably (34.43% in 2010, as against
27.50% in 2009).
5.3.
The two main reasons for refusing an initial application continued to be:
–
the protection of the purpose of inspections, investigations and audits (third
indent of Article 4(2)), with a slight decrease compared to 2009 (26.63% of
refusals instead of 27.61% in 2009);
–
the protection of the Commission's decision-making process (Article 4(3)),
with a percentage of 16.80% for cases where the decision had still to be taken
and 9.66 % for those concerning opinions for internal use, totalling 26.42% of
refusals (compared with a total of 25.61% in 2009).
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The percentage of refusals based on the protection of commercial interests slightly
decreased in comparison with the previous year amounting to 11.84% (instead of
13.99% in 2009).
5.4.
The main grounds for confirming a refusal of access were:
–
the protection of the purpose of investigations (32% compared with 25.91% in
2009);
–
the protection of commercial interests (16.67% compared with 17.52% in
2009);
–
the protection of the Commission's decision-making process, with a percentage
of 11.33% for cases where the decision had still to be taken and 8% for those
concerning opinions for internal use, totalling 19.33% of refusals (compared
with a total of 26.64% in 2009).
6.
COMPLAINTS TO THE EUROPEAN OMBUDSMAN
6.1.
In 2010 the Ombudsman closed the following 23 complaints against the
Commission's handling of requests for access to documents:
1 case closed without finding any form of maladministration
2953/2008/FOR
13 cases closed with a critical and/or a further remark
3699/2006/ELB
355/2007/TN(FOR)
671/2007/PB
2502/2007/RT
3163/2007/BEH
676/2008/RT3
1039/2008/FOR
1438/2008/DK
1202/2009/GG
1207/2009/GG
1302/2009/TS
100/2010/GG
465/2010/FOR
9 cases closed without further action
301/2008/IP
2219/2008/(JMA)MHZ
2643/2008(TN)RT 3052/2008(BB)FOR
966/2009/JMA
2647/2009/IP
172/2010/ANA
1195/2010/OV
1357/2010/MHZ
6.2.
In the course of the year the Ombudsman opened 22 new inquiries where access to
documents was either the main or a subsidiary part of the complaint.
7.
JUDICIAL REVIEW
3
This case has been also subject to a special report from the European Ombudsman.
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2010 was a very intensive year as regards new case law4.
7.1.
The Court of Justice delivered four judgments on appeals in 2010:
C-362/08 P
Internationaler Hilfsfonds v
C-139/07 P Commission v
Technische
Commission, judgment of 26/1/2010
Glaswerke Ilmenau, judgment of
29/6/2010
(TGI)
C-28/08 P
Commission v Bavarian Lager, Joined cases C-514/07P, C-528/07 P,
judgment of 29/6/2010
C- 532/07 P,
API, Sweden and
Commission, judgment of 21/9/2010
These four judgments provided important clarifications in relation to the
interpretation of both substantive and procedural aspects of Regulation 1049/2001.
Concerning the substantive aspects, in the two judgments handed down on 29 June
2010 (
Bavarian Lager and
TGI), the Court of Justice clarified the interpretation of
the exceptions provided for under Article 4(1)(b) and under Article 4(2) 3rd indent of
Regulation 1049/2001. In
API judgment the Court of Justice interpreted the
exception of Article 4(2) 2nd indent.
In
Bavarian Lager, the Court of Justice ruled that, where a public access request is
made to documents containing personal data, the provisions of the Data Protection
Regulation become applicable in their entirety, including the provision requiring the
recipient of personal data to establish the need for their disclosure and the provision
which confers on the data subject the right to object at any time, on compelling
legitimate grounds relating to his or her particular situation, to the processing of data
relating to him or her.
In the
TGI judgment the Court of Justice held that documents pertaining to the
Commission's administrative files relating to State aid investigations are covered by
a general presumption that their disclosure would in principle undermine the
protection of the purpose of investigations. The State aid Regulation does not lay
down any right of access to the file for interested parties. If they were able to obtain
access, on the basis of Regulation 1049/2001, the system for State aid review would
be called into question. The Court further ruled that this presumption can be rebutted
if the applicant demonstrates that a requested document is not "covered by that
presumption" or that there is an overriding public interest in disclosure.
In
API, the Court of Justice formulated a presumption of inaccessibility of pleadings
submitted by an institution to the EU courts before the closure of the judicial
proceedings. Similarly to the logic used in
TGI decision, this interpretation of the
exception relating to court proceedings was deduced from the legal framework
governing court proceedings and from the absence of access rights for the public as
regards judicial activities.
Finally, as concerns
Internationaler Hilfsfonds, the Court clarified that a new
application for access to a document which was previously refused can be introduced
4
For details of each case referred to below, see http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en
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at any time and that the institution concerned is obliged in such case to analyse
whether the refusal remains justified in the light of a change of legal or factual
circumstances which could have occurred in the meantime.
7.2.
As for the General Court, it has handed down five judgments concerning
Commission's decisions:
Joined cases T-355/04 et
T-237/05,
Editions Odile
T-111/07,
Agrofert v
T-446/04,
Co-Frutta
Jacob SAS v Commission,
Commission, judgment
Soc.coop. v Commission, judgment of 9.6.2010
of 7.7.2010
judgment of 19.1.2010
T-474/08,
D. Umbach v
Joined cases T-494/08 to T-
Commission, judgment
500/08 and T-509/08,
of
21.10.2010
Ryanair v Commission,
judgment of 10.12.2010
In two cases concerning access to the Commission's investigation files in the field of
merger control,
Editions Odile Jacob and
Agrofert, the Commission's decisions
under Regulation 1049/2001 have been annulled by the General Court essentially on
grounds of lack of individual and concrete examination of the documents5.
In the
Ryanair cases, the General Court followed the judgment of the Court of Justice
in
TGI and dismissed the applications.
In the remaining two cases the Commission's decisions under Regulation 1049/2001
have been upheld by the General Court.
Likewise, in the judgment of 21.10.2010, the application was dismissed in case T-
439/08,
Agapiou Joséphidès v Commission and EACEA, where the Commission was
one of the defending parties, although the author of the challenged decision was
EACEA.
Finally, three further cases have to be mentioned which have been removed from the
register following the withdrawal by the applicant:
T-245/09,
Shell Hellas v
T-251/09,
Soc. des Pétroles T-170/03,
BAT v
Commission, order
of
Shell v Comission, order of
Commission, order of
5.1.2010
5.1.2010
6.9.2010
7.3.
14 new cases were brought in 2010 against Commission decisions under Regulation
(EC) No 1049/2001.
T-17/10, Gerald
T-36/10, Internationaler
T-120/10, ClientEarth
Steinberg v Commission
Hilfsfonds e.V. v
and Others v
Commission
Commission
5
See also Section 7.4 of the present Report
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T-167/10, Evropaïki
T-180/10, Nickel Institute v T-181/10, Reagens SpA v
Dynamiki v Commission
Commission
Commission
T-267/10,
Land Wien v
T-291/10,
Anne Martin v
T-300/10,
International
Commission
Commission
Hilfsfonds e.V. v
Commission
T-301/10,
Sophie in 't
T-359/10,
Ecologistas en
T-395/10,
Stichting
Veld v Commission
Acción-CODA v
Corporate Europe
Commission
Observatory v
Commission
T-449/10, ClientEarth
T-511/10, Evropaïki
and Others v Commission Dynamiki v Commission
7.4.
Also, three new appeals have been brought to the Court of Justice against judgments
of the General Court.
Appeals lodged by the Commission (see section 7.2. above):
C-404/10P, Commission v Editions
C-477/10P, Commission v Agrofert
Odile Jacob SAS, Lagardère SCA
Holding a.s., other parties Sweden,
Finland, Denmark, Polski Koncern
Naftowy Orlen SA
Appeal lodged by the applicant at first instance:
C-609/10P,
Dieter C. Umbach v Commission
8.
CONCLUSIONS
8.1.
In 2010, there was again a significant increase in the volume of access requests.
While in 2009 the number remained at the same level as in the previous year, at
around 5,000, more than 6,000 requests were made in 2010. Despite this 20%
increase, the ratio of disclosure remains high: four out of five requests receive a
positive reply. It is noteworthy that, in ten years time, the number of access requests
has risen from 500 to 6,000 per year. Given the overall volume of requests, the
number of confirmatory applications, complaints to the Ombudsman and applications
to the Court remains very modest.
Even if the share of citizens has increased, most applications for access are still made
by the academic sector, by NGO's, interest groups and law firms. Many of these
requests cover infringement proceedings, antritrust, merger, State aid or antidumping
cases. As in the previous years, requests for access concern mainly the Commission's
role in enforcing EU law, where transparency must be balanced against other
legitimate interests, in accordance with the applicable rules. As regards Commission
initiatives for new legislation, there is already a high degree of transparency, as many
documents are made public pro-actively.
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8.2.
Ten years after the Regulation was adopted, its implementation has led to a
consolidated administrative practice with regard to the citizen's right of access to
Commission documents. Through the case law, the Court of Justice and the General
Court have significantly contributed to this consolidation. Therefore, the
Commission remains convinced that the revision of the Regulation should build on
what has been achieved in the past ten years.
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ANNEX
Statistics relating to the application of Regulation (EC) No 1049/2001
1.
NUMBER OF DOCUMENTS ENTERED IN THE REGISTER
COM
C
OJ
PV
SEC
Total
2010
2088
12630
127
92
3724
18661
INITIAL REQUESTS
2.
APPLICATIONS RECEIVED AND HANDLED
20086
2009
2010
Applications received
-
5401
6361
Replies given7 8
-
6636
7148
Replies given based on
5197
5055
6127
Regulation 1049/2001
3.
RESULT
2008
2009
2010
No
%
No
%
No
%
4314
82.68
4258
84.23
5034
82.16
Access granted
703 13.99 589 11.65 764 12.47
Access refused
180
3.33
208
4.11
329
5.37
Partial access
5197 100 5055 100 6127 100
total
6
Please note, that for 2008 the Commission cannot provide the comparable statistical data corresponding
to the categories of "Applications received" and "Replies given" for either initial nor confirmatory
requests;
7
Please note that a single request can concern several documents and can consequently give rise to
several different replies;
8
Please note that the category "Replies given" includes the replies given outside the scope of Regulation
1049/2001, for example replies given under Regulation 45/2001;
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CONFIRMATORY REQUESTS
4.
APPLICATIONS RECEIVED AND HANDLED
2008
2009
2010
Applications received
-
140
181
Replies to applications
-
134
152
Decisions on confirmatory
156 120 122
applications based on Regulation
1049/2001
5.
RESULT
2008
2009
2010
No % No % No %
Confirmation
75
48.08
27
22.50
61
50
Partial
revision 52 33.33
33 27.50
42 34.43
Full revision
29
18.59
60
50
19
15.57
total 156
100
120
100
122
100
(1) BREAKDOWN OF REFUSALS BY EXCEPTION APPLIED (%)
6.
INITIAL REQUESTS
2008 2009 2010
4.1.a. 1st indent – Protection of public security
0.18
1.36
1.94
4.1.a. 2nd indent Protection of defence and military
0.82 0.54 0.14
matters
4.1.a. 3rd indent - Protection of international
10.24
8.17
9.83
relations
4.1.a. 4th indent – Protection of the financial,
2.9 2.09 2.15
monetary or economic policy
4.1.b. Protection of privacy and the integrity of the
5.98
6.99
9.76
individual
4.2.1st indent - Protection of commercial interests
14.4 13.99 11.84
4.2 2nd indent - Protection of court proceedings and
6.52
9.81
7.32
legal advice
4.2 3rd indent - Protection of the purpose of
26.63 27.61 26.63
inspections, investigations and audits
4.3 subparagraph 1– Decision-making process, no
13.5
17.80
16.80
decision yet taken
4.3. subparagraph 2- Decision making process,
decision already taken: opinions for internal use as
15.22 7.81 9.62
part of deliberations and preliminary consultations
4.5. Refusal by Member State/third author
3.62
3.81
3.94
total
100 100
100
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7.
CONFIRMATORY REQUESTS
2008 2009 2010
4.1.a. 1st indent – Protection of public security
0.42
2.55
2,67
4.1.a. 2nd indent - Protection of defence and
0.42 0 0
military matters
4.1.a. 3rd indent - Protection of international
5.91
4.38
6,67
relations
4.1.a. 4th indent – Protection of the financial,
0.84 3.28 3,33
monetary or economic policy
4.1.b. - Protection of privacy and the integrity of the
5.06
14.23
9,33
individual
4.2. 1st indent - Protection of commercial interests
24.89
17.52
16.67
4.2. 2nd indent - Protection of court proceedings
3.8
5.47
10
and legal advice
4.2. 3rd indent - Protection of the purpose of
27.85 25.91 32
inspections, investigations and audits
4.3 subparagraph 1 – Decision-making process, no
17.3
12.77
11,33
decision yet taken
4.3. subparagraph 2 - Decision making process,
decision already taken: opinions for internal use as
12.24 13.87
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part of deliberations and preliminary consultations
4.5. Refusal by Member State
1.27
-
-
total
100 100 100
BREAKDOWN OF REQUESTS
8.
ACCORDING TO SOCIAL AND OCCUPATIONAL PROFILE OF APPLICANTS (%)
2008 2009 2010
Academics
31.03
21.29
23.24
Public authorities (other than the EU
14.19 7.33 13.56
institutions)
Lawyers
11.01
10.24
10.69
Other EU institutions
6.3 3.77 8.32
Civil society (interest groups, industry,
18.26
9.85
8.18
NGOs. etc.)
Journalists
2.46 2.02 3.35
Not specified
16.75
45.5
32.68
total
100 100 100
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9.
ACCORDING TO GEOGRAPHICAL ORIGIN (%)
2008 2009
2010
Belgium
18.93
18.26
17.95
Germany
16.89 16.61
16.62
France
8
8.01
9.05
Italy
8.54 7.18
8.85
United Kingdom
6.34
6.23
7.24
Spain
5.29 6.27
6.86
Netherlands
4.83
5.45
4.43
Czech Republic
1.26 1.11
4.23
Poland
2.57
2.86
2.76
Sweden
1.44 2.13
2.18
Austria
2.11
1.98
2.08
Luxembourg
2.61 1.71
1.99
Denmark
2.45
1.63
2.02
Ireland
1.28 0.72
1.49
Greece
1.93
1.06
1.22
Portugal
1.5 1.61
1.16
Romania
0.58
0.93
1.11
Finland
1.08 0.78
0.81
Hungary
0.86
0.70
0.89
Bulgaria
0.36 0.56
0.69
Slovakia
0.24
0.50
0.56
Slovenia
0.32 0.39
0.52
Lithuania
0.62
0.35
0.31
Malta
0.2 0.30
0.22
Cyprus
0.22
0.20
0.20
Latvia
0.28 0.06
0.13
Estonia
0.1
0.17
0.09
Non-EU European countries
2.12 0.83
0.50
North America
1.16
0.37
0.11
Australia and New Zealand
0.14 0.07
0.09
Africa
0.04
0.20
0.05
South America
0.06 0.09
0.05
Asia
0.46
0.19
0.04
Not specified
5.24 10.57
3.49
total
100
100
100
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10.
ACCORDING TO AREA OF INTEREST (%)
Directorate-General / Service
2008 2009 2010
SG – Secretariat General
9.38
10.10
11.64
COMP – Competition
7.18 7.03 9.07
JUST - Justice + HOME - Home Affairs (former JLS)
6.69
7.74
8.38
MOVE – Mobility and Transport + ENER – Energy (former TREN)
8.18 8.02 7.14
MARKT – Internal market
7.28
7.27
6.14
ENV – Environment + CLIMA – Climate Action
6.07 8.37 6.07
SANCO – Health and Consumer Protection
5.74
4.69
5.44
TAXUD – Taxation and Customs Union
5.17 6.20 5.30
ENTR – Enterprise
5.91
4.55
4.48
RELEX – External Relations
2.39 2.25 3.29
AGRI – Agriculture
3.6
4.07
3.15
REGIO – Regional Policy
3.42 3.67 3.06
TRADE – Trade
2.72
2.08
3.06
DEVCO – Development and Cooperation-EuropeAid (former DEV +
3.22 2.75 2.77
AIDCO)
EMPL – Employment and Social Affairs
3.72
3.28
2.74
SJ – Legal Service
1.75 1.80 2.68
ECFIN – Economic and Financial Affairs
1.23
1.87
2.32
HR - Human Resources and Security (former ADMIN) + OIB + OIL -
Offices for Infrastructure and Logistics in Brussels and Luxembourg
4.54
+ PMO – Office for Administration and Payment of Individual
3.15 2.29
Entitlements
RTD – Research, JRC – Joint Research Centre
1.36
1.74
1.82
INFSO – Information Society
2.3 2.29 1.79
ELARG – Enlargement
1.5
1.74
1.47
BUDG – Budget
1.07 1.07 1.24
EAC – Education and Culture
1.4
1.44
1.13
COMM – Communication
0.85 0.41 0.74
MARE - Maritime Affairs and Fisheries
1.13
0.79
0.66
DGT – Translation
0.32 0.13 0.36
ESTAT – Eurostat
0.22
0.11
0.31
CAB – Commissioners' Cabinets
0.43 0.30 0.28
ECHO – Humanitarian Office
0.15
0.24
0.28
OLAF – European Anti-Fraud Office
0.62 0.24 0.27
OPOCE – Publications Office
0.05
0.19
0.19
EPSO – Recruitment Office
0.23 0.26 0.14
IAS – Internal Audit Service
0.07
0.02
0.09
DIGIT – Informatics
0 0.07
0.09
SCIC – Interpretation
0.02
0.02
0.08
BEPA – Bureau of European Policy Advisers
0.07 0.06 0.03
total
100 100 100
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Document Outline