OCM(2019)26256 - 19/11/2019
Directorate B - Investigations II
Aisha Down
Director
Emerika Bluma 8,
Sarajevo, Bosnia and Herzegovina
E-mail:
ask+request-7347-
xxxxxxxx@xxxxxxxx.xxx
Via e-mail and registered mail
Brussels
olaf.c.4(2019)28852
Subject:
Your application for public access to documents
Case No OF/2011/1181
Dear Mrs Down,
We refer to your email dated 2 October 2019, by which you submitted an application for public
access to documents under Regulation (EC) No 1049/20011.
You requested access to the following documents:
“
All documents and correspondence related to OLAF's investigation of links between Japan
Tobacco International (JTI), JTI's Middle Eastern distributor IBCS Trading, Syria Duty Free
Shops (SDF) Ltd, and Rami Makhlouf.
Documents showing when OLAF was first aware of the link between Assad and JTI.
Documentation of the launch of OLAF's investigation of the links between Makhlouf, SDF
Ltd, and JTI.
All information and documents given by Cypriot authorities to OLAF regarding JTI's links to
Makhlouf, SDF Ltd, and Assad. All correspondence between Cypriot authorities and OLAF on
this subject. All meetings between Cypriot authorities and OLAF on this subject.
All meetings between OLAF and JTI on the subject of the investigation of links between JTI,
IBCS Trading, Syria Duty Free Shops Ltd, and Rami Makhlouf. All negotiations related to
this investigation”.
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.
1Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission
documents 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(2019)26256 - 19/11/2019
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,
attention is drawn to you to the fact that documents disclosed under this Regulation enter the public
domain.
2. Assessment of the document under Regulation (EC) 1049/2001 - relevant applicable
exceptions – presumption of non-accessibility
Having carefully considered your application, OLAF regrets to inform you that your application
cannot be granted, as disclosure is prevented by the exceptions to the right of access laid down in
Article 4 of Regulation (EC) 1049/2001 based on the following considerations.
The documents, which you describe in your request, are part of OLAF's investigation file
OF/2011/1181. OLAF has closed the investigation on 2015 with a note to Japan Tobacco
International (JTI).
The requested documents are 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 internal investigations could fundamentally undermine
the objectives of the investigative activities, as well as the decision making process, both now
and in the future.
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.
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 professional secrecy rules. Consequently, the document requested
is exempt, in principle and in full, from disclosure to the public unless the applicant demonstrates
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.
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OCM(2019)26256 - 19/11/2019
that the presumption is not applicable because an overriding public interest justifies the
disclosure of the requested documents.5
3. Partial Access
OLAF has examined the possibility of granting partial access to the requested document in
accordance with Article 4(6) of Regulation 1049/2001.
Partial access is not possible, given that the information the document contains 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 anti-fraud
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, an application
under Regulation (EC) No 1049/2001 would have to contain clear elements to indicate the
existence of an overriding interest to justify putting OLAF documents from the investigation file
into the public domain. In this regard OLAF considers that there are no elements that would
show the existence of an overriding public interest in disclosing the requested document that
would outweigh the interest in protecting the purpose of OLAF investigations.
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 Ville ITÄLÄ
Director General OLAF
European Commission
B-1049 BRUXELLES
BELGIUM.
Your attention is drawn to the privacy statement below.
Yours sincerely,
Signed Electronically
on 19/11/2019 at 16:16 by MARTEAU Jacky [Acting DIRECTOR] by
delegation from BIANCHI Ernesto [DIRECTOR]
5 Ibid., paragraph 91.
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Privacy notice
Pursuant to Articles 15 and 16 of Regulation No 2018/1725 on the protection of natural persons with regard to
the processing of personal data by Union Institutions, bodies, offices and agencies and of 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 or in relation to the activities carried out in order to fulfil OLAF’s tasks referred to
in Article 2 of Decision 1999/352/EC, ECSC, Euratom and Regulation (EU, Euratom) 883/2013 concerning
investigations conducted by the European Anti-Fraud Office (OLAF). The categories of your personal data being
processed are contact data, identification data, professional data, and case involvement data. Your data may
originate from various sources, including publicly accessible information. Your data may be transferred to other EU
institutions, bodies, offices and agencies, competent Member State and third country authorities and international
organisations. There is no automated decision process by OLAF concerning any data subject. Your data will be
stored for a maximum of 15 years.
You have the right to request access to, rectification or erasure, or restriction of processing of your personal data
and to object to their processing on grounds relating to your particular situation. If you wish to request access to
your personal data processed in a specific file, please provide the relevant reference or description in your request.
Any such request should be addressed to the Controller (
xxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx).
The complete privacy statement for this and all other OLAF personal data processing operations are available at
http://ec.europa.eu/anti_fraud. If you have questions as regards the processing of your personal data or your
rights you may contact the OLAF Data Protection Officer (
xxxxxxxxxxxx@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.
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