OCM(2019)24847 - 04/11/2019
Directorate A - Investigations I
Ms Aisha DOWN
Director
Emerika Bluma 8
Sarajevo
Bosnia and Herzegovina
E-Mail:
ask+request-7355-
xxxxxxxx@xxxxxxxx.xxx
Via e-mail and registered mail
with AR
Brussels
olaf.c.4(2019)27831
Subject:
Your application for public access to documents
Case No OF/2012/0617
Dear Ms Down,
We refer to your e-mail dated 7 October 2019 and registered in OLAF on 14 October 2019
under reference number OCM(2019)22927, 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 following documents:
all details, meetings and correspondence between OLAF officials and Jose Manuel
BARROSO and his staff related to OLAF's investigation into John DALLI;
all details, meetings and correspondence between OLAF officials and officials in Legal
Services, including Catherine DAY, related to OLAFs investigation into John DALLI.
In light of Regulation No 1049/2001, we interpret you application as referring to:
all records of meetings and correspondence and documents exchanged between OLAF
and the former Commission President and his cabinet staff related to investigation
OF/2012/0617;
all records of meetings and correspondence and documents exchanged between OLAF
and the Commission Legal Service related to investigation OF/2012/0617;
all records of meetings and correspondence and documents exchanged between OLAF
and the Commission Secretariat General, including Ms Catherine DAY, the former
Secretary General of the Commission, related to investigation OF/2012/0617.
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
Office: J-30 06/005 Tel: +32 (0)2 2965396 E-mail: xxxxxx.xxxxx@xx.xxxxxx.xx
OCM(2019)24847 - 04/11/2019
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, attention is drawn to you 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
Having carefully considered your application and taking into account the opinion of the
Commission services concerned, OLAF regrets to inform you that your application cannot
be granted, as disclosure is prevented by exceptions to the right of access laid down in
Article 4 of Regulation (EC) 1049/2001 based on the following considerations.
(a)
Presumption of inaccessibility for documents in an investigation file – Article 4(2) third
indent
Part of the requested documents, in particular the correspondence with the former
President and his staff, as well as with the former Secretary-General and the Secretariat-
General are part of OLAF's investigation file. The investigation in that case has been
closed and OLAF's final report has been transmitted to competent authorities accompanied
by recommendations indicating possible further action in accordance with Article 9 of
Regulation 1073/2001.
The requested documents are covered by the exception 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.
The General Court recognised in recent case-law2 the existence of a general presumption
of non-accessibility under which the disclosure to the public under Regulation 1049/2001
of documents related to OLAF investigations could fundamentally undermine the
objectives of the investigative activities 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
2 Judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322,
paragraphs 28-50.
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.; judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322, paragraphs 29-34.
2
OCM(2019)24847 - 04/11/2019
purposes of the investigation.
The protection of confidentiality extends to closed cases. In particular, it is constant that
the protection of OLAF’s investigations extends to their follow-up, to the extent that that
follow-up takes place within a reasonable period4.
According to the case-law, to grant access to OLAF’s investigation file, even partially,
could compromise the effective use of those elements by the national authorities, given
that the persons suspected of irregularities could act in such a way as to prevent the
proper conduct of the various procedures or investigations which those authorities might
decide to initiate.
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 might harm the protection of personal data and/or the integrity of persons
involved in the investigation, as sources of information, witnesses, persons concerned,
officials of the competent authorities and OLAF officials.
In view of the foregoing, the documents in OLAF's investigation files fall under the
presumption of non-accessibility as documents containing information which are collected
during an OLAF investigation and are subject to professional secrecy.
In accordance to the case-law, that presumption applies in full regardless of whether the
request for access to documents concerns an on-going or a closed investigation.5
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
documents.6
(b) Exception related to court proceedings and legal advice – Article 4(2) second indent
Part of the requested documents, in particular exchanges between OLAF and the
Commission Legal Service, relate to preparation of the Commission's legal defence in
proceedings before the Court of Justice of the European Union, in particular in cases T-
562/12, C-394/15 P, T-399/17 and C-615/19 P. Case C-615/19 P is currently pending
before the Court of Justice.
The documents therefore fall in the scope of the exception provided for in Article 4(2)
second indent of Regulation 1049/2001 as documents related to court proceedings and
legal advice.
(c) Exception related to the protection of privacy and personal data – Article 4(1)(b)
In addition to the exceptions under (a) and (b), most of the documents contain personal
data, in particular those of persons concerned, witnesses and informants who enjoy
particular protection under Union law. Disclosure of those documents would constitute
interference with privacy of those persons within the meaning of Regulation No
2018/1725.
4 Judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322,
paragraphs 33, 35; judgment of 6 July 2006 in
Franchet and Byk v
Commission, T-391/03 and T-70/04,
EU:T:2006:190, paragraphs 108 to 113; judgment of the General Court of 26 April 2016,
Strack v
Commission,
T-221/08, EU:T:2016:242, paragraph 162.
5 Ibid.;
6 Judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322, paragraph
38.
3
OCM(2019)24847 - 04/11/2019
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, and under the exception
related to court proceedings and legal advice – Article 4(2) second indent of Regulation
1049/2001.
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,
OLAF considers that you have not put forward elements that would show the existence of
an overriding public interest in disclosing the requested documents.
In addition, the requested documents also involve the protection of privacy and integrity
of individuals (Article 4(1)(b) of Regulation 1049/2001) where overriding public interest in
disclosure is not applicable.
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 notice below.
Yours sincerely,
Signed Electronically
on 04/11/2019 at 18:51 by
Dominik Berto Wilhelm Schnichels [DIRECTOR]
4
OCM(2019)24847 - 04/11/2019
Privacy notice
Pursuant to Articles 15 and 16 of Regulation (EU) 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 ensuring conformity with the requirements of Regulation 1049/2001 and
Commission Decision 2001/937/EC.
The categories of your personal data being processed are identification and contact data 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, and third parties, within the meaning of Articles
4(4) and 3(b) of Regulation 1049/2001, and Article 5 of Commission Decision 2001/937/EC, have access to your
personal data. Personal data that appear on the requested document may only be disclosed to the applicant
following an assessment under Article 9(b) of Regulation (EU) 2018/1725. There is no automated decision
process by OLAF concerning any data subject.
All documentation 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 request access to your personal data, rectification or erasure of the data, or restriction of
their processing. Any request to exercise one of those rights should be directed to the Controller
(OLAF-FMB-
xxxxxxxxxxxxxxx@xx.xxxxxx.xx). You may contact the Data Protection Officer of OLAF
(OLAF-FMB-
xxx@xx.xxxxxx.xx) with regard to issues related to the processing of your personal data under Regulation (EU)
2018/1725.
You have the right to have recourse to the European Data Protection Supervisor
(xxxx@xxxx.xxxxxx.xx) if you
consider that your rights under Regulation (EU) 2018/1725 have been infringed as a result of the processing of
your personal data by OLAF.
The complete privacy statements for this and all other OLAF personal data processing operations are available at
http://ec.europa.eu/anti_fraud.
5